By Andrew Smith
Recently, my family drove along a large portion of the Interstate Highway System in Alabama, which in turn necessitated several stops at multiple rest areas. At each rest area, there was some form of sign that read, “No Weapons Beyond This Point.” Being a responsible gun toter, I try to research the gun laws in each state through which I travel. Up until this point, I thought that I had a pretty good understanding of Alabama’s laws, and rest areas were not one of the prohibited places listed in the Alabama Code . . .
Upon arriving home, I researched the issue. I discovered several threads on gun-related message boards, and a few articles on sites such as The Truth About Guns. The general feeling of the gun community was that the Alabama Department of Transportation (ALDOT) was illegally posting the rest areas. The internet trail started in January 2014 but seemed to peter out about 6 months later. I could find no resolution about this issue, no justification for the ban or reports of lawsuits against ALDOT.
I began with a simple email to ALDOT. I initially communicated with two different individuals in the Maintenance department, which oversees the rest areas. The ALDOT personnel cited section 13A-11-61.2 (a) of the Alabama Code as giving them the power to regulate firearms in their buildings through their rule making authority, and then cited Alabama Administrative Code section 450-3-1-.08 as the specific rule that prohibits firearms.
Despite both of their assurances, I could not see the authority granted to ALDOT. I could clearly see the rule they made, but I could not see the specific language that gave them that power. I spent the weekend reviewing the Alabama Code, but my understanding was no clearer.
I wanted to have my ducks in a row before contacting anyone else. The relevant language of 13A-11-61.2 (a) is:
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:
The section then goes on to list various locations, from jails to professional sporting events, as places that may prohibit firearms. Rest areas, however, are not on that list.
Furthermore, in my research, I found that the Alabama legislature has preempted any political subdivision from regulating firearms; the code was recently revised in 2013. The code contains language (Alabama Code Section 13A-11-61.3), which is very strongly worded to prevent any other part of Alabama government from making laws about firearms. In addition, it includes a specific remedy to petition the Alabama Attorney General to bring action upon a political subdivision that is illegally regulating firearms.
To my surprise (maybe I am jaded), I eventually spoke with John Cooper, the Director of ALDOT. During our conversation, it became clear that he was of the “Fudd” mentality; he didn’t think anyone would need a gun in an Alabama rest area. He indicated that the legal department was in the process of formulating a response to an inquiry by the Attorney General. However, until and if the Attorney General rules against them, ALDOT intended to keep the signs up, and would arrest and prosecute anyone with a gun in their rest areas.
I tried to impress on him the illogic and immorality of the rule, even if ALDOT had the authority. I used the example of my 90-pound, very petite wife. A gun is one of the only realistic methods of self defense available to her; she said that she felt very alone in the restroom even during the day. I can imagine that feeling would be worse at 1 AM.
Mr. Cooper brushed off those concerns by saying his wife had never been afraid to use the rest areas when they travel. I guess those important “feelings of safety” often touted by anti-gun zealots are only valid for those who don’t chose to carry guns.
When pressed on the source of ALDOT’s authority to ban guns, Director Cooper could not cite the specific law, but he said that they have doors and 24-hour attendants at the rest areas; he was referring to the part of the code that prohibits guns in buildings with screened security. The relevant code refers to
any building or facility to which access of unauthorized persons and prohibited articles is limited during normal hours of operation by the continuous posting of guards and the use of other security features, including, but not limited to, magnetometers, key cards, biometric screening devices, or turnstiles or other physical barriers.
The rest area attendants (who I never saw) and unlocked glass doors do not meet this requirement no matter how much wishful thinking is applied.
Since I now had the reasoning for the signs, I added my own petition to the Attorney General. Although I could find no internet trail to that effect, Director Cooper alluded to other possible petitions to the Attorney General. Coincidentally on the same day I mailed my petition, I finally received the reply from the “legal department,” which turned out to be Chief Counsel for ALDOT, Jim Ippolito. His legal analysis of the law differed from Director Cooper. He used an Attorney General opinion given to a school board that wanted to make rules about guns on their campus as a basis for ALDOT’s authority. Mr. Ippolito wrote,
As you noted, section 13A-11-61.2(a)which lists six specific places where a person may not possess or carry firearms does not include rest areas. However, the introduction to of this section states firearms are prohibited “[i]n addition to any other place limited or prohibited by state or federal law.” In interpreting this portion of the firearms law, the Attorney General’s office stated that while the firearms legislation was intended to preempt local gun regulation, the legislature also expressly recognized other entities’ statutory authority to regulate and prohibit gun possession. Ala. Op. Atty. Gen. No. 2014-044, 2014 WL 901443
The summary of his opinion is that ALDOT is not a political subdivision, and thus the preemption statute does not apply; other parts of the Alabama Code gives agencies rule-making authority that carries the force of law; and the Attorney General ruled that a government entity (a school board) could still regulate guns, so therefore other agencies can also. So rather than having a specifically-enumerated authority to ban guns, ALDOT appears to have extracted the power from the empty spaces within the code.
On a related note, Mr. Ippolito is listed as the author of two amendments to the rule that specifically bans guns on ALDOT property. These amendments were added in May 2013 and July 2014. A cynical person might think that ALDOT directed Mr. Ippolito to comb through the language that was changed by the legislature in 2013 and find a loophole. Is it any wonder that these “No Weapons” signs were first noticed in early 2014?
In summary, the intent of the Alabama legislature is clear—they did not want a patchwork of laws creating nebulous gun-free zones around the state, so they named very specific locations as off limits. The rest of the public property in the state was meant to be open for legal carry.
If Mr. Ippolito’s interpretation is correct, then any agency with rule-making authority could regulate guns in their on little domains. Conceivably, a single government office building housing multiple agencies could have one office off limits and another one clear to carry. Some agencies control a good deal of property. The implications are concerning. Furthermore, why would the legislature prohibit the county health department from banning guns but give that power to the state health department? It makes no sense based on my reading of the law.
When we, the gun carriers, violate the law, we are fined or jailed. When the government violates the law, there is a lengthy process just to get them to correct their actions. There is no punishment. There seems to be hardly any accountability.
I never thought I would influence anyone at ALDOT to change their policy; they have had over a year to change and have not. However, I did not want “them” (ALDOT, the governor, the Alabama government in general), to think that this issue was going unnoticed.
At this point, the Attorney General can compel ALDOT to change their rules; otherwise, he has 90 days to explain why he rejects a petition. Since presumably there should already be multiple petitions from Alabamians and Alabama groups, he should make a ruling soon. If he rules in favor of ALDOT, then the only recourse for us otherwise law-abiding citizens is to ask the legislature to make the law even more specific. I will still pursue the issue, but there is a limit to what one can do alone.