There was a brace of decisions from Alabama last week relating to open carry. First the bad news: Robert Kennedy Jr. (no, not that guy; we’re talking about one of the founders of the gun rights organization BamaCarry,) was convicted by an Alabama State District Court on Friday on misdemeanor charges of of illegally wearing his Taurus .357 Magnum revolver in open view at a polling place during the 2014 elections, reports AL.com. A video of Kennedy in the act of…well, quietly walking into the polling place, voting, then calmly coming outside to talk to the press can be seen above. As a result of that act . . .

Kennedy was convicted with violating two parts of the Alabama Code – 13A-11-61.2, which bars the possession of firearms in “certain places”, and Alabama Code Section 17-17-33, which bars obstruction, intimidation, harassment or coercion of voters.

If those charges seem a bit odd given the video above, well, you’re not alone. The part of the code that bars possession of firearms from “certain places” doesn’t actually specify polling places as one of the verboten locations.

a) In addition to any other place limited or prohibited by state or federal law, a person, including a person with a permit issued under Section 13A-11-75(a)(1) or recognized under Section 13A-11-85, may not knowingly possess or carry a firearm in any of the following places without the express permission of a person or entity with authority over the premises:

(1) Inside the building of a police, sheriff, or highway patrol station.

(2) Inside or on the premises of a prison, jail, halfway house, community corrections facility, or other detention facility for those who have been charged with or convicted of a criminal or juvenile offense.

(3) Inside or on the premises of a facility which provides inpatient or custodial care of those with psychiatric, mental, or emotional disorders.

(4) Inside a courthouse, courthouse annex, a building in which a District Attorney’s office is located, or a building in which a county commission or city council is currently having a regularly scheduled or specially called meeting.

(5) Inside any facility hosting an athletic event not related to or involving firearms which is sponsored by a private or public elementary or secondary school or any private or public institution of postsecondary education, unless the person has a permit issued under Section 13A-11-75(a)(1) or recognized under Section 13A-11-85.

(6) Inside any facility hosting a professional athletic event not related to or involving firearms, unless the person has a permit issued under Section 13A-11-75(a)(1) or recognized under Section 13A-11-85.

In fact, this very law was the subject of an opinion by the Alabama Attorney General in 2014. The AG was asked whether 13A-11-61.2 barred possession of firearms in a polling place. Do read the entire opinion for yourself, but the answer was mostly no, although the AG did allow that if a polling place was located on private property, the property owner could bar firearms from his property (and therefore the polling place.) In this case, the polling place was apparently located on property belonging to the First Baptist Church in Shelby County, but it wasn’t the Church that barred firearms – it was Shelby County. As al.com reported at the time:

The arrest happened as the Shelby County Sheriff’s Office has taken a stance against allowing weapons at the polling sites.

“Each polling location in Shelby County will have a ‘No Firearm’ sign posted at the entrance of the precinct, at the requests of the private property owner or governing body of the property. This will be enforced in accordance with Alabama law,” the Sheriff’s Office said in a statement last week.

“Our goal is to allow every registered voter in Shelby County the right to vote in an influence-free environment,” Sheriff Chris Curry said in the statement last week. “Voting is a constitutional right and it is our job to facilitate the process effectively and efficiently.”

As for the obstruction and intimidation conviction, unless there’s something significant missing from the video posted to You Tube, there really isn’t any evidence of that actually taking place. Shelby County District Court Judge Daniel A. Crowson – a Republican – held that open carriage of a firearm into a polling place was, by itself, evidence that the law had been violated, according to Joe Hubbard, Kennedy’s attorney. Hubbard promised to appeal.

“At the end of the day he (the judge) won’t have the last word on Mr. Kennedy or on Alabamians seeking to exercise their constitutional rights,” Hubbard said. “There is no provision of law that requires a law abiding citizen to give up one right – the right to bear arms – to exercise another constitutional right – the right to vote.”

Hubbard — a Democrat — took note of the incident in 2014 while unsuccessfully running for Attorney General, and issued a statement at the time labeling it an incident of “voter suppression”. Kudos to him for putting his money where his mouth is, so to speak.

Then there’s the good news. The Alabama Supreme Court struck down as unconstitutional Alabama Code section 13A-11-52, a Jim Crow-era law that outlawed carriage of a firearm by a person “on premises not his own or under his control.” This case, Ex parte Jason Dean Tulley involved an appeal of a conviction by Jason Dean Tulley, who had been openly carrying a firearm while inside the First Education Credit Union in March 2011. Tulley was asked by a FECU security guard to leave the gun in his car and, after a brief argument, complied with the request. He was nevertheless charged a few days later with possessing a firearm in the Credit Union.

In the decision authored by Justice Michael F. Bolin, the Tulley court noted that when 13A-11-52 had been codified, it originally included a punishment provision. That provision was carried forward when the Alabama Code was recodified in 1923, but not in the recodification that took place in 1940, nor the subsequent recodifications in 1958 or 1975. Since the law now lacked a punishment provision, the Court held that 13A-11-52 was unconstitutional on its face because it could not be enforced.

(Although 13A-11-52 had been amended in 2013 to exclude persons with a valid carry license or consent of the owner from the act, the Court examined the case under the law as it was written when Tulley’s actions took place in 2011. It does not appear that the legislature enacted a punishment provision at that time, so unless the legislature enacts such a provision in future, it would be consistent with Tulley for the Court to hold that the watered-down version of 13A-11-52 is equally unconstiutional.)

The Tulley decision is interesting to me for reasons beyond the fact that it takes another step toward strengthening the right to keep and bear arms in Alabama. It is a well-established principle that a criminal law that does not clearly state the illegal act or its punishments is unenforceable and unconstitutional. This is a doctrine that was well-known for quite a good many years. I am driven to wonder why the punishment provision was repealed in 1940. Was it a simple oversight? Was someone surreptitiously striking a blow for liberty? (If anyone’s familiar with the statutory history here, please hit the comments thread.)

 

DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

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44 Responses to One Step Forward, One Step Back in Alabama Gun Cases

    • “Maybe if it weren’t a Taurus…”

      For an inexpensive handgun it performs remarkably well..It has a fantastic trigger and is extremely accurate..To my understanding it is a clone of a S&W revolver…

      If someone were to be arrested, their weapon held in evidence til the criminal process is completed, which handgun do you think they wanted sitting in the Shelby County evidence room? Their inexpensive Taurus or one of their Sig-Sauers?

      Some people amaze me..

  1. Great article Mr. Paulson. As an AL lawyer familiar with the firearms law, I agree that the State doesn’t have. Leg to stand on in the Kennedy case. A plonking place is simply not mentioned in the statute. Either Kennedy’s lawyer, the District Judge, the Prosecutor, of all three were asleep at the switch. He can appeal to the circuit court for a jury trial, where hopefully someone will read the statute by then. As for Shelby County, their ordinance is violation of the AL Preemption Law on firearms.

      • Thanks for weighing in with the local legal insight. That’s one of the benefits of TTAG, is that as wide ranging and experienced its regular frequent commenters are, the totality of its readership is even more so. So there’s almost always somebody who has pretty specific and first hand input on every topic.

        On plonking/polling, no worries. Lots of people post from smart phones, which are notorious for introducing some odd words here and there. My own suspicion is that as you near the end of your cell contract, the manufacturer activates software to start screwing up the phone’s operation, so that you’ll be manipulated into buying a new phone.

    • ” Either Kennedy’s lawyer, the District Judge, the Prosecutor, of all three were asleep at the switch.”

      The District Judge and the Prosecutor may have been asleep.

      Eric Friday, Joe Hubbard and I went fishing…We did not put up a defense…

  2. Are all people with the name Kennedy morons? Seems so. Unless you’re wearing a uniform, if you open carry, I won’t SWAT you, but I’m giving you wide berth and having nothing to do with you. This isn’t 1800’s wild west. Go ahead and wear your pants around your knees while you’re at it, drive a noisy car/bike and play your music so I have to listen to it. It’s just attention/reaction seeking behavior, except your means isn’t exposing your underwear, playing your crass music or deafening me with your vehicle, it’s the display of a tool that is meant for one purpose alone, killing.

    • Guess you’ve heard of neither ‘deterrence’, being prepared for the unexpected, nor the Second Amendment to the Constitution of the United States.

    • “This isn’t 1800’s wild west. Go ahead and wear your pants around your knees while you’re at it, drive a noisy car/bike and play your music so I have to listen to it. It’s just attention/reaction seeking behavior, except your means isn’t exposing your underwear, playing your crass music or deafening me with your vehicle…”

      You sound like the main character from Pixar’s 2009 film UP!

    • It used to be that open carry was the only respectable way to carry. But I guess respectability died in the wild west too…

    • This isn’t 1800’s wild west. You are correct, the 1800s wild west was much safer than current society. I wonder why that is?

      • Really, how? I doubt even a cursory study of the mortality rate comparing now to then, on any basis would show that it was safer. Are you a time traveler, or just a whim worshiper. How is open carry a deterrent when police shootings, in broad daylight on uniformed officers, in marked cars…open carrying are on the increase. You want to play John Wayne, milquetoast version. Bear your arms IWB, unless we’re being invaded and we’re activating the militias.

        • ” Bear your arms IWB, unless we’re being invaded and we’re activating the militias.”

          You are showing your true spots.

          * Ignores historical facts to make an emotional argument….check

          * Tells others how to act … check

          * Anti-RKBA (in this case, OC) … check

          Statist control freak troll.

          You might or might not be a “gun owner,” but you sure are one of THEM. You don’t understand the essence behind the Bill of Rights at all.

        • >> Really, how? I doubt even a cursory study of the mortality rate comparing now to then, on any basis would show that it was safer.

          Some attempts to compare the numbers have actually arrived at the opposite conclusion, at least compared to many large American cities (as rates vary significantly across the country); google will find a few summaries of this for you. The problem is that we don’t really have reliable data, as many things that are recorded in minute detail today weren’t back then.

          OTOH, the idea that everyone was packing in the Wild West frontier towns is also a myth. Many places banned open carry, quite a few banned carry outright, and required travelers to check their guns in with the sheriff for the duration of the stay.

    • Actually, the most common outcome of using guns in the civilian world, LE included ivet, is that everyone lives, even the criminal, and no shots are fired. So it seems like the main purpose of firearms is to deter attackers and home invaders without killing them.

      You have a fundamental misunderstanding of the nature of firearms and the mindset of their owners.

    • thx855,

      Firearms were not designed to kill. They were designed to expel a projectile at a consistent velocity to a consistent location. Period.

      When good people apply firearms to bad people, good people are using their firearms to compel their attacker to comply with the counter-demands of the good person who is the victim. And that counter-demand is for the attacker to leave the good victim alone.

      Oh, and if firearms are only designed and used to kill, why do police have them?

      • Right, and atomic bombs weren’t made to blow stuff up, they’re just a high-kinetic-energy physics experiment.

        BS. And we could all do with a little less of it in our lives. Guns were created to kill; killing (whether humans or game) is the raison d’etre for the development of the design. Early guns weren’t for sport, they were pretty much small cannons for war. Even most modern guns have killing as a design purpose, minus the tiny minority of guns purpose-built for target-shooting. We can mince words if we want, but I don’t carry a gun around just in case a target shooting competition breaks out.

  3. “Our goal is to allow every registered voter in Shelby County the right to vote in an influence-free environment,”

    i have never commented here before but i read this and had too, someone correct me if i am wrong but back during obummers first term before he became president, wasn’t there blacks and black panther people at polling places yelling and telling people that if they don’t vote for him they are racist etc?

    someone carries a lawfully carried gun into a polling place and it’s considered a influence or hindrance on people trying to vote but that i described above isn’t?! talk about double standards

    • “…wasn’t there blacks and black panther people at polling places yelling and telling people that if they don’t vote for him they are racist etc?”

      Yes. I tried to find the original video where they were yelling things along the lines of “You’re gonna be ruled by a black man…” and couldn’t locate it.

      I found lots of videos with people commenting on it, but not the original threats.

      Does anybody have a link?

  4. A video of Kennedy in the act of…well, quietly walking into the polling place, voting, then calmly coming outside to talk to the press can be seen above. As a result of that act . . .

    Kennedy was convicted with violating two parts of the Alabama Code – 13A-11-61.2, which bars the possession of firearms in “certain places”, and Alabama Code Section 17-17-33, which bars obstruction, intimidation, harassment or coercion of voters.

    If those charges seem a bit odd given the video above, well, you’re not alone
    ————————
    I don’t find the charges odd at all.
    In most jurisdictions, you cannot legally campaign or wear campaign related materials with a certain distance of polling places. This is obvious a restriction on the First Amendment, freedom of speech, freedom or press, and freedom of assembly are being restricted.
    Even if a person campaigning or wearing campaign related material does so in a peaceful manner, it’s a violation of the law.
    Since these restrictions on the First Amendment have been upheld as Constitutional, they don’t become unconstitutional because the person is wearing a firearm. In this case, the display of a firearm is no different than the display of a campaign button and is a misdemeanor.
    Weapons at polling places can easily be viewed as trying to influence the votes of others, just as campaigning at polling places can be similarly viewed.

    • They can also be easily viewed as a person prepared to defend himself at all times, in all places. Which is his constitutionally protected right.

    • “Weapons at polling places can easily be viewed as trying to influence the votes of others, just as campaigning at polling places can be similarly viewed.”

      What batcrap insane leap of logic gets you to THAT conclusion from the actual data presented?

      One Consideration: Most people don’t even notice when someone is carrying a gun, even OC. If it is a way to try to influence votes of others, it cannot be a very effective one.

      Another Consideration: Maybe the person OC-ing is “just going about his day” while OC-ing, which the “advice” so many anti-OC blowhards say is the “right way to do it.”

      Now we have a dude OC-ing, just doing what he needed to do that day (not carrying a sign, not having a rally, etc), and he STILL gets criticized.

      So, I call BS on the anti-OC trolling with the “just go about your day.” It’s just more illogical goal-post moving.

  5. The charges seem ridiculous.
    But there is a plain as day sign on the door.
    Unless that sign doesn’t carry any weight besides possibly trespassing?? That’s only if he was asked to leave and didn’t.
    I don’t see how anything could have come of this display of a firearm. Other then to draw attention to himself.
    That seems to have been his purpose as I saw it in the video.

    • The way I understood it, the owner of the premises would have to be the one to prohibit firearms there, but did not in this case. The sheriff’s office just slapped a “firearms prohibited” sign on it without any legal authority to do so.

    • Indiana Tom says:
      September 7, 2015 at 16:07
      At first i thought he was a member of Obama Carry. I later re-read the sentence. Oh, I see now, Bama Carry.

      Every heard of Bama Football?

      When attending the 2013 GRPC in Houston we did not hear one word about our name..

      When attending the 2014 GRPC in Chicago we actually had a few people say the same thing to us Tom..

      Geography

  6. Suppression of Open carry at polling places is a political act as well. Banning open carry sends a clear message that the Second Amendment is not to be respected. This was a political act by the Sheriff’s office to intimidate open carriers.

  7. I can carry nationwide LEGALLY, but I don’t “Open Carry” even in my home State…Alabama. The reason I don’t is I don’t want to call attention to myself! Sometimes, because you can doesn’t mean you should. Kennedy and his club want to call attention to themselves…”Hey look at me I have a gun, don’t mess with me”!

    I absolutely believe in the 2nd Amendment…but I also believe in “common sense”. I drive a car that will go 170+ (did at Talladega) but I don’t drive 170 on the road. I have a 1000 watt car stereo, but I don’t play my Merle Haggard wide open in traffic! I could “Open Carry”, but I don’t feel the need to walk around saying “Look at me I got a gun”!

    Please if you are going to OC….get a REAL Holster.

    • “The reason I don’t is I don’t want to call attention to myself! “

      Yea you!

      Too bad most OC-er’s here report “no one notices.” That’s been my own experience as well.

      I guess it’s really too bad the “draw attention to myself” meme is another gun myth debunked by the real world.. Score another point for data and another loss for “emotion.”

  8. Normally Robert Kennedy and I are at odds, but not in regards to the 2nd Amendment or the topic of Open Carry. I’ve known Robert since the Alabama Open Carry days, Bama Carry was created in response to a sudden and dramatic change in leadership. A change which spelled doom for the 2nd Amendment and OC in Alabama. Enough of history though, Robert Kennedy was only doing what his rights enabled him to do. The Shelby County Sheriff’s office has had a long history of trampling on people’s rights and this is no different than any other occasion.

    If you notice, Shelby County is the ONLY county in the state of Alabama to post No Firearms signs at polling places that were NOT under their control. It is a county full of corruption and a very strong good ‘ol boy network. Like the Tulley case, this will go to the Alabama Supreme Court and be thrown out like the trash it is.

    As for Jay in Florida’s comment, Robert is the type who will go looking for a fight. This is exactly what he wanted from the beginning. To challenge the idiocracy that is running rampant in our state. While I don’t agree with the methods, the underlying cause is what I’m supporting here. It is our RIGHT and unless we keep those in power in check it can and will be taken away from us a little at a time.

    • DDJD I am surprised that you say that we are at odds..I do not believe we ever had a cross word..The problem was a couple of what are now ex mutual friends that stabbed me in the back..

      My user name in various groups is Treborfoot or Treb..

      The following pertains to the split from ALOC / AGR…I only allow people to knife me so many times..This was one of many knife attracts made on me by this person..

      Snip from a message sent to me in 08/12.

      “straight from the Hoss’ mouth”

      POTENT DAGGER
      I was the one who supposedly “vetted” Potent Dagger (George Owens), and on my “OK” he was made Region 7 coordinator? Ehh, I’m not so sure about that. But, I am certain that I chose supporting him over Treb’s consistent warnings, and that was one of the stupidest things I’ve ever done. “For the good of the Organization”, I turned my back on Treb and supported PD. Since then, PD’s stabbed me and ALOC every change he’s gotten, and Treb didn’t even “disown” me. Hmmm. One of them is a good man.

      DDJD I hope you and your family are doing well…

  9. I’m sorry if the truth hurts. OC is for Ego. There is absolutely no tactical advantage to exposing your ability to a criminal intent on a crime. Wearing a gun at a polling place is just a “look at me” move. The OC movement was small and unknown until recent years when those that should not be carrying a weapon learned they could carry one without fear of being turned down for criminal backgrounds or things they did when young.

    Most are attention freaks hiding behind a shield of “I’m doing this to protect your Constitutional Right”. If they really wanted to improve the rights, they would be working on removing the fees for conceal carry. If they wanted to make the world a tad safer, they would be okay with a background check with a shall issue plan to allow for appeals (like we have now). No with a background check most would not qualify to carry a weapon either due to attitudes or life styles.

    Tacbear said it best, but his statement of “Just because you can doesn’t mean you should” falls on deaf OC ears just like “Gun Free Zone” falls on deaf control freak ears.

    When you read some of the sites that discuss OC crammed with activists like the voter does, you see discussion of wearing TWO sidearms in Wal-Mart, wanting to wear suppressors OC, Western Rigs etc. It doesn’t matter how stupid or embarrassingly poor it looks, but it is “Your Right”. The other site in Alabama fell because of the weight of the ones that wanted to be activists and “record” everything and draw media attention like this guy. The sensible people got tired of reading “adventures” like this polling place.

    I am a Southern born man and bred with manners. That dictates to me that I should wear my weapon out of sight to not be insensitive to those that might be afraid of guns. Just because I could doesn’t mean I should, if I give a hoot about others and not just myself showing off. I remove my hat at the table, I hold a door for a lady and I don’t scare kids just to be “cool”

    I carried a gun in the open for 24 years as a LEO. Even off duty I didn’t OC my duty weapon because I had no need to stroke my Ego.

    • “No with a background check most would not qualify to carry a weapon either due to attitudes or life styles.”

      Would it be accurate to say that you own philosophy is that the right of the people to keep and bear arms should be subject to local law enforcement’s assessment of a person’s ‘attitude’ or ‘life-style’?

      • Only if you mean “common sense” in the Progressive, Anti-Gun, MDA/Everytown way of the term….as in “agree with my narrow minded worldview and it’s common sense!!!!!!!”

    • CC you’re one of those RKBA BUT guys…Do it your way or it is wrong..You are clueless to path that got us here…I am not..

      CC said:

      The other site in Alabama fell because of the weight of the ones that wanted to be activists and “record” everything and draw media attention like this guy. The sensible people got tired of reading “adventures” like this polling place.”

      Actually it was the dedicated people that started BamaCarry..The other group allowed an military ex-LEO get control of the group along with his Court of Clowns that has now disappeared..They are still around and even pretend that they are a large group..They have helped implement new gun control in Alabama..

      There was a hard split..

      This is a snip from a post George Owens (AKA Potent Dagger) made on OCDO in January of 2012..

      “Now if I stop you and you do not inform me of the weapon you have, and I end up seeing that you are armed, you will have the very unpleasant experience of me drawing my weapon aiming it at you and ordering you out of the vehicle, disarming you, conducting a search of your vehicle while I wait for the NCIC/NLETS check to come back, and the dispatcher to call your sheriff to verify your permit, while you sit on the bumper of my car in handcuffs. Plus I assure you that you will get the ticket.”

      http://forum.opencarry.org/forums/showthread.php?94239-Encounter-with-Sheriffs-Dept-on-I-10-Stop&p=1676890#post1676890

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