Does Ala. Code 1975, §13A-11-52, forbid open carry?

[apjonas]

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Just in case you forgot your statement that got the ball rolling - here it is:

All property is open to the public unless it is "posted in a conspicuous manner"....ie. anyone (the public) can drive onto my, or others, property unless..... "posted in a conspicuous manner, fenced, or otherwise enclosed in a manner designed to exclude intruders".....from the Code of Alabama.

I still haven't found such a rule in the Code. But I will keep looking. Can anyone else help in this search? Please post your findings. Does the rule still apply if you leave the gate open?

 

[Comp-tech]

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apjonas wrote:

Ah, come on. I want to hear the details of your story. I didn't realize that you were a party to such a case.
There was never "a case"...just complaints(several different indiviuals/times) by me against people that I thought were trespassing...that's how I know what is and is not trespassing....my issue has been solved with advice from the DAs office.....I didn't press charges.

What do you think "open to the public" means in the statute? Can you give an example of some premises that is not "open to the public"?
Any property(land not house or building etc.) that is not "posted" or otherwise "enclosed" and one has recieved no "notice" about.
In adition to dwellings and buildings not open for business etc., any property which is "posted", fenced or otherwise enclosed in a manner designed to exclude intruders", or property that you have had notice given that it is "off limits"....an example could be a barn or shop (even if the door is "open" physically) that is on your property

You have stated so far that a driveway is "open to the public" and therefore I must inform anybody that comes onto it to leave and receive a refusal before a criminal trespass has occurred. Is that correct?
Unless you have it "posted"....yes...with a "license and privilege" to enter....how else would someone (pulic, not an invitee) be able to stop by to make an inquiry etc. without commiting a crime?...no "posted" sign = implicit "privilege and license" to enter.
For example, lets say that no-one is at home and your driveway is "unposted"....Joe Public stops by to ask if you are selling any pecans from your pecan trees by driving up to your house and knocking on your door...there is no "answer" and he leaves intending to "check back " later.....did he commit a crime?
NO....because he had, with no "posted" sign, "license and privilege" to enter......
§ 13A-7-1.Definitions.The following definitions are applicable to this article:(1)Premises. Such term includes any "building," as herein defined, and any real property.(2)Building. Any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods, and such term includes any vehicle, aircraft or watercraft used for the lodging of persons or carrying on business therein, and such term includes any railroad box car or other rail equipment or trailer or tractor trailer or combination thereof. Where a building consists of two or more units separately occupied or secure, each shall be deemed both a separate building and a part of the main building.(3)Dwelling. A building which is used or normally used by a person for sleeping, living or lodging therein.(4)Enter or remain unlawfully. A person "enters or remains unlawfully" in or upon premises when he is not licensed, invited or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privileges unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.



§ 13A-7-2.Criminal trespass; first degree.(a)A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully (that is, he is not licensed, invited or privileged to do so) in a dwelling.(b)Criminal trespass in the first degree is a Class A misdemeanor.
In general, is a dwelling considered "open to the public"? Why or why not?
No, it is not "open to the public".....because it is "otherwise enclosed in a manner designed to exclude intruders"

§ 13A-7-3.Criminal trespass; second degree.(a)A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders.(b)Criminal trespass in the second degree is a Class C misdemeanor.
Could a dwelling be covered under this section?
No...a dwelling has it's own definition and penalty section....ie, a building normally used for sleeping, living etc.

§ 13A-7-4.Criminal trespass; third degree.(a)A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.(b)Criminal trespass in the third degree is a violation.

What type of premises would be covered here (and not under the other two)? Is it necessary for notice to leave be given and refused before trespass occurs? Give an example of a premises "open to the public" to which this applies. How about one not "open to the public"?
Notice, yes.....example could be a persistent individual that stoped by to ask about buying the old '57 Chevy that you have on your ("unposted") property...after "notice", he refuses to leave and persists in trying to get you to "dicker" and therefor is trespassing.
Notice, no.....same scenario as above...if your property is "posted"(not open to the public), you can call LEO and have the person charged with trespass.
Even though my property is "posted", I would not call LEO on the hypothetical individual asking about the 57 ......I would let the guy ask his questions (within reason), answer them (within reason) and go from there.
If he acts civil, I have no problem with him stopping by.....if he's a beligerant a$$hole, he WILL LEAVE...one way or another.

 

[Comp-tech]

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apjonas wrote:

Just in case you forgot your statement that got the ball rolling - here it is:

All property is open to the public unless it is "posted in a conspicuous
manner"....ie. anyone (the public) can drive onto my, or others, property unless..... "posted in a conspicuous manner, fenced, or otherwise enclosed in a manner designed to exclude intruders".....from the Code of Alabama.
You seem to be "nit picking" here....by property, I mean LAND...not dwellings, buildings etc.

I still haven't found such a rule in the Code. But I will keep looking.
Haven't found it?....hell, you've posted it.....everything regarding trespassing has been posted.
Can anyone else help in this search? Please post your findings. Does the rule still apply if you leave the gate open?
Jeez man..."leave the gate open"?...why don't you give it a rest...you'll NEVER convince me that you know the code better than the DAs office......'nuff said....at least on my part.

 

[kurtmax_0]

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Even though it says 'A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.'

Sec 52 says:

'no person shall carry a pistol about his person on premises not his own or under his control'

So, does this "license and privilege" mean the premises are "under your control".

On another note, you could say that since you are the only one with a firearm, they are under your control

 

[apjonas]

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You know I think we are more in synch that either of us believe. I use very narrow definitions and you use more flexible, "everyday" definitions. Here are some scenarios. I have indicated my analysis. Please give me yours (or if you agree you can just say so). No ill will, no contumacity. Just an exchange of ideas. Fair enough?:celebrate



1. Joe Transient enters your house, knowing that it is a house without your permission = First Degree Criminal Trespass. No notice or signage is required. No request to depart is required.

Analysis: Your house is a dwelling. Your house is not a “place open to the public” (hereinafter “POP”), therefore the license provided by Alabama Code § 13A-7-1 (4) (hereinafter the “statutory license” or “SL” is not available. Joe has no license, invitation or privilege in your house. Therefore he has knowingly and unlawfully entered a dwelling. Therefore he has committed criminal trespass in the first degree.


2. Avon saleslady enters your house with your permission to show you her cosmetics. You think she has departed but she actually decided to take a bath upstairs. First Degree Criminal Trespass.

Analysis: Same as 1, except here she had an invitation to enter but remained after the invitation had ceased.

3. Your neighbor Fred, enters your tool shed because he wants to see what kind of box wrenches you have. Second Degree Criminal Trespass.

Analysis: Your tool shed is not a POP. Therefore there is no SL. It is a building but is not a dwelling. Fred is not licensed, invited or privileged to enter the building. Therefore he has knowingly and unlawfully entered a premises (building or real property). Therefore he has committed criminal trespass in the second degree. No notice or signage is required. No request to depart is required.

4. Same as 3 except that you and Fred have an understanding that you can borrow each others’ tools at any time. No violation.

Analysis: The difference is that Fred has an implicit license to enter the tool shed. You did not give him an explicit license (specific date, time) but your agreement with Fred is sufficient.

5. Same as 4 except that Fred whips out his crack pipe in the tool shed. Second Degree Criminal Trespass.

Analysis: The license extended to Fred did not include using the tool shed for his illegal drug use. He is now in the same position as he was in 3.

6. Some tourists from Topeka get lost in your neighborhood on the way to the Museum of Common Torts. They pull into your driveway and knock on your door to ask for directions. No violation.

Analysis: Our societal norms allows for this type of situation. Your home is not a POP. Therefore there is no SL. However, there is an implicit invitation to ask for assistance from others.

7. Same as 6 except you have large neon signs saying “Go Away!”, “No Trespassing!”, “I Don’t Give Directions to Tourists from Topeka!” Third Degree Trespass.

Analysis: Same as 6 except the presumption of an invitation has been rebutted by the signs. Why not Second Degree Trespass? There is no indication that the property has been “fenced or enclosed in a manner designed to exclude intruders.”

8. You have a square 5 acre parcel of unimproved property that is not being used for any activity. You place 1’ x 2’ signs at each corner warning against entry. Two fisherman walk through the middle of your property to get to a trout stream a few hundred feet from your land. No violation.

Analysis: Your property is not a POP so the SL doesn exist. However, there is another license - “A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privileges unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless such notice is given by posting in a conspicuous manner.” You nave posted a notice. However, the sides of the parcel are about 466’. It is unreasonable to expect somebody to see a sign that size over 200’ away. Since the notice is not “conspicuous” the license applies.

9. Cal D. Customer enters your lingerie shop to buy a few things for his wife. You become suspicious when he asks if you have anything in his size and request that he leave. Cal refuses. Violation? It depends.

Analysis: Cal is taking advantage of the SL to enter your shop. However, the statute also gives you the right to rescind the invitation to an individual. This may be Third Degree Trespass. However, the law requires that the command to leave be lawful. If you are in a location (doubtful in Alabama) that protects Cal’s proclivity to dress in women’s underwear, there would be no violation.

 

[Comp-tech]

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kurtmax_0 wrote:

Even though it says 'A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.'

Sec 52 says:

'no person shall carry a pistol about his person on premises not his own or under his control'
IMO, if you have a PL, which gives you license to carry, it would not affaect your "license and privilege" in matters of trespass....just my guess.....but, the property owner would still have the right to exclude you
So, does this "license and privilege" mean the premises are "under your control".
The premesis will always(from a legal standpoint) be under the control or the owner or owners agent.
On another note, you could say that since you are the only one with a firearm, they are under your control

 

[Comp-tech]

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We agree on all of your scenarios....one note about #9, Alabama is an "at will" state....Cal would have to leave.

 

[bill45colt]

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Im Bill Strickland, in Hazel Green. I just found out about the open carry org this evening. I got here from there. Ive read all posted here tonight. Id like to say Im pretty well confused on what folks are talking about when they use CC CO RBKA and other abbreviations. It would be clearer for new folks like me to understand what is being discussed if I could read the notes. Any help there would be appreciated. Next issue, Id surely like to support any move to organize a state group to get lawmakers to clearly state what is intended and what is not, and to free up the restrictions on gun laws that we already have. Id also like to point out that on your yearly hunting regulations issued each year to hunters on when seasons are open and what guns are legal to use, there is also the statement that says all land in Alabama is legally considered posted whether fenced, or displaying posted signs or not. And game wardens can arrest tresspassers there without the land owner having to confront the tresspasser first, on his own. I dont know how all this arguing or legal verbage will work out but Id like to be kept informed if you dont mind and for someone to let me know if Im allowed to attend any meetings that may happen. Im at bill.strickland@us.army.mil at work and bill45colt@yahoo.com at home. Thanks for your time.

 

[kurtmax_0]

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Hello Bill. And Welcome!

CC = Concealed Carry
OC = Open Carry (Unconcealed Carry)
RKBA = Right to Keep and Bear Arms

There are only two 'RKBA' states in the US. Alaska and Vermont. No permit is required in these states to carry weapons concealed, hence the label 'RKBA'.

 

[Comp-tech]

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Hi Bill....Welcome to the forum!....and you would be welcome to attend any meeting that we put together.
As far as a Game Warden making an arrest for trespass...they could only arrest you if you were hunting on someone elses land.....and I believe that is what the "posted issue" relates to on a hunting license.....they have no arrest powers in other areas of law.....in other words, they can't arrest for anything that isn't "Fish & Game" related.
IANAL (I am not a lawyer)...but I thinnk this is the case.

 

[acrimsontide]

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Comp-tech,

I believe you are mistaken on the arrest powers of Alabama Conservation Officers/Game Wardens. Below is a paragraph from the enfoecement secion of the Alabama Game and fish web site. While their primary duty is game/fish law enforcement, they are sworn peace officers of the state.
[font=TimesNewRoman,Bold]
[align=left]Enforcing. [/font]Conservation enforcement officers are state peace officers, designated by the[/align]
[align=left]commissioner, have the authority to: enforce all laws of the state, with a primary focus on[/align]
[align=left]enforcing laws and regulations relating to the department; serve subpoenas; carry firearms[/align]
[align=left]when in the discharge of duties; confiscate all game, birds, animals, or fish or parts thereof[/align]
[align=left]that have been caught, taken, killed, or held at a time in any manner or for any purpose or had[/align]
[align=left]in possession or under control or have been shipped, carried, or transported contrary to the[/align]
laws of this state; and enter any land or water while in the performance of duties.

 

[Comp-tech]

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acrimsontide wrote:

Comp-tech,
I believe you are mistaken on the arrest powers of Alabama Conservation Officers/Game Wardens. Below is a paragraph from the enfoecement secion of the Alabama Game and fish web site. While their primary duty is game/fish law enforcement, they are sworn peace officers of the state........

[align=left][/align]Thanks for the clarification....that was what a "Game Warden" told me years ago....I guess they aren't any better informed than other LEOs....

 

[acrimsontide]

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Comp-Tech,

You are right on that one!!! A few years ago a game warden in Limestone county made a traffic stop, asked the guy for his liscense. The guy had his wallet or at least his license in the glove compartment. When he reached to get the license, the game warden panicked and shot & killed the guy!!! Their training may not be up to date in enforcement of laws other than game related. If I remember correctly, the game warden was convicted of manslaughter. He claimed he thought the guy had a gun, but there were no weapons in the man's vehicle!!

 

[SlackwareRobert]

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So your safest bet to OC, is to first be denied a ccw? Since both would be
unconstitutional. Does realy push the may issue point some what
Of course you will need to walk a lot.

 

[cvickers]

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I am not a current resident of Alabama but visitrom time to time. (Born & raised there and hope to return soon). I recently spoke with a friend who is currently a District Attorney and was a Judge in Alabama for probably 20+ years. I asked him about open carry in Alabama and he stated that in his opinion it was legal. We also spoke of the 'concerns' that some Law Enforcement Officers have when seeing someone oc'ing(I am retired LEO). I haven't gotten anything in writing but I plan to continue this discourse with him and hopefully I can get something benificial and concrete.

 

[Sonora Rebel]

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Ok... been sort'a readin' this... but all the case law' aside. Does anybody OC in Alabama? Do you? 'Know anybody that does? Daily? Do ya need some sort'a CCW/permit to carry at all?

I have an AZ CCW... but OC normally.

 

[HungSquirrel]

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I OC when driving and when at Wal-Mart. That's pretty much it. I am not a good barometer for the legal climate, as I've never been noticed by a LEO.

 

[Daddyo]

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I too, haven't been noticed by LEO so also not a good test. Haven't had any outrageously negative reactions from the general public, just a few surprised facial expressions.