The Alabama Supreme Court on Friday ruled a state law that banned the open carry of a gun on someone else’s property is unconstitutional.
Friday’s ruling by the court came in an appeal by Jason Dean Tulley, 38, of his Jacksonville city court conviction for openly carrying a pistol on his hip while inside the First Educators Credit Union on March 31, 2011.
An off-duty police officer working security at the credit union told Tulley to leave the credit union and put the gun in his car. Tulley, who at the time also had a conceal carry permit, argued his rights but eventually complied. Tulley was charged days later.
The high state court’s ruling overturns Tulley’s conviction on the charge.
“This is definitely a victory for gun rights advocates,” said J.D. Lloyd, one of Tulley’s appellate lawyers. “More importantly, it’s a victory for folks who believe in Due Process and don’t want to see the Legislature passing vague criminal statutes.”
But what about business owners who don’t want people carrying guns inside their businesses?
“I believe businesses still have options available to limit people bringing firearms onto their property, but open carry advocates shouldn’t fear criminal prosecution under 13A-11-52 going forward,” Lloyd said.
Tulley was prosecuted in the City of Jacksonville municipal court for violating a state law – 13A-11-52 – that prohibited “carrying a pistol on premises not one’s own or under his control,” court records show.
Tulley appealed his conviction to the Circuit Court of Calhoun County and lost. The court of criminal appeals upheld the conviction. But on Friday the Alabama Supreme Court in a 5-3 decision ruled that the law was unconstitutional and unenforceable.
“At the heart of the case was their (the supreme court’s) determination that the statute is unconstitutionally vague because it doesn’t possess a punishment provision and the Code of Alabama doesn’t supply a “catch-all” punishment provision for the offense,” Lloyd said.
The Alabama Legislature in 2013 did update the law to include a phrase that states no one can carry on premises not there own or under their control “unless the person possesses a valid concealed weapon permit or the person has the consent of the owner or legal possessor of the premises.”
But the revision did not add a punishment clause.
The Alabama Supreme Court noted that few cases in the long history of the law challenging convictions had ever reached them.
“It is telling that only three cases since the 1940 Code omitted the punishment provision from what is now 13A-11-52 have reached the appellate level; those three cases involved juvenile proceedings, which are quasi-criminal in nature,” the court states in its ruling. “It does not appear that any of the juvenile defendants raised any issue regarding the failure of 13A-11-52 to provide punishment for the offense.”
Cities can prosecute state crimes as municipal violations, Lloyd said. However, the Alabama Supreme Court ruled that because state law was unconstitutional, the prosecution by the city under that law is improper, he said.
In order to criminalize carrying a pistol openly on someone else’s premises, Legislators “would have to go back in and fix it (the law) because this is an offense that can’t be prosecuted right now,” Lloyd said.
Lloyd said he worked on the appeals with Birmingham attorney Joe Basiger, who originally tried the case.