Permitless carry, also known as Constitutional carry, has been the end goal of a decade of lobbying by the National Rifle Association (NRA) and other gun rights groups. The Republican supermajority in the Alabama House of Representatives, eager to please conservative voters ahead of the May 24 GOP primary, gave them what they wanted and passed constitutional carry.
House Bill 272 (HB272), sponsored by State Rep. Shane Stringer (R-Satsuma) would end the requirement of Alabamians to purchase a pistol permit to carry a loaded handgun in their car or on their person. That was a big win for NRA, but now some pro-gun rights attorneys are suggesting that the final compromise of the bill that passed the House contains some provisions from the Alabama business community that actually takes away many gun rights that Alabamians already had.
Joel Brown is an attorney in the Birmingham area. He is a graduate of the Coast Guard Academy and served both at sea and in the Clinton White House. He graduated from Georgetown School of Law Magna Cum Laude in 1997. Brown recently spoke with 1819 News about concerns that he had with the bill as it passed the House.
“I am a lawyer with 25 years experience practicing in Alabama, and I’m pro-gun, pro-2A,” Brown said. “I have concerns about the bill in that I think there may be some hidden traps in it, perhaps unintentionally. One of these traps relates to concealed carry on private property. Under the current law you may conceal on private property under two conditions: (1) you have a permit, or (2) you have permission. HB 272 strikes the permit language. What this means, I believe, is that under the new law, if you don’t have permission, you could be charged with a gun crime (not merely a trespass charge, which would be the case under the current law). I haven’t seen any analysis of the bill or reporting on this, and I think the public should know what they are getting.”
State Rep. Andrew Sorrell (R-Muscle Shoals) agreed with that assessment.
“That is 100% correct,” Sorrell told 1819 News. “I had an amendment to fix that on the floor, but since it was a cloture calendar you couldn’t offer any amendments.”
Sorrell explained that under current Alabama law, if you walk onto private property with a handgun when there is a sign prohibiting guns, the property owner can ask you to leave and if you don’t you could be charged with criminal trespass. HB272 creates a new gun crime. The Business Council of Alabama insisted on the wording for them to withdraw their opposition to the bill.
Brown said that the distinction between public and private property is a grey area under Alabama law. He said the interpretation of HB272 could vary wildly from county to county or even from judge to judge.
“I don’t want to have to take my client’s case to the Alabama Supreme Court if he is convicted of a gun crime under this,” Brown said.
Harry Still III, who is a practicing attorney in Baldwin County and a candidate for Attorney General, agreed with Brown’s assessment of the law.
“I think everybody should be able to carry their firearms with them everywhere without paying bribe money to their local sheriff to exercise their Constitutional rights,” Still said. “This creates a new gun crime. I would rather pay the money to the sheriff than get arrested for walking in a store with a sign on the door I didn’t see or have to leave my gun in the car.”
Sorrell said he talked with Rules Chairman Mike Jones (R-Andalusia) about his concerns, but Jones told him that the penalty for the new gun crime, a Class B misdemeanor, was less than that of criminal trespass.
“On the public v. private, please look at the Engrossed version, section 13A-11-52 and note the changes indicated by strikethroughs and underlines,” Brown explained. “You will see that under this Bill, it will be illegal to carry on “private property not his or her own or under his or her control unless the person has the consent of the owner or legal possessor of the premises.’ Note that they struck 'the person possesses a valid concealed weapon permit.' What this means is permit holders who can legally carry in ‘private’ places today, will no longer be able to if this becomes law unless they have 'the consent of the owner or legal possessor of the property.
“This begs the question, 'What is the difference between public and private property? 13A-11-1 defines Public Place as: 'A place to which the public or a substantial group of persons has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds and hallways, lobbies and other portions of apartment houses not constituting rooms or apartments designed for actual residence; provided, that no private dwelling and no place engaged for a private gathering is included within the meaning of public place with respect to any person specifically invited therein.’
“If you think about all the places you travel in day-to-day life, you can probably come up with several examples of places where it’s not clear whether it’s public or private, as defined in this section of the criminal code. Although places like malls and stores and restaurants generally are 'public' because you don’t need a specific invitation to enter, what if they are 'membership only stores? Or what if they post a 'No Guns Allowed' sign by the door? Is that sufficient under this Bill to transfer the facility from a 'public' place where all are invited, to a non-public (or 'private') place where only those without guns are invited? I don’t think we can say with certainty because the bill is just not clear and there likely would have to be new case law developed to flesh out the contours of 'public v private' in this context. So, it’s clear to me that a person currently in possession of a concealed carry permit will have less rights if this becomes law, and most certainly will have less clarity and certainty if this becomes law.”
That was not the only change in Alabama law that concerns Brown.
“Current law on firearms in your car in a parking lot at work - Ala Code 13A-11-90,” Brown said. “Note that it’s an 'either/or.' You must have a permit, OR, it must be unloaded, hunting season, etc. Note that this speaks of legality of possessing a firearm if you have a permit (the language is not limited to a pistol). So, under current law, if you have a permit, you may legally possess a 'firearm' in your locked car at work. This is the version of HB272 passed by the House. Look at the changes to section 90(b): 'firearm' is replaced with 'pistol.' So, if this becomes law, you would be allowed to store a 'pistol' locked in your car at work, but not generally a 'firearm.' And HB272 clarifies for firearms other than a 'pistol,' they may be stored in your car at work only if they are unloaded and appropriate for a hunt for which you have a hunting license.”
Still said this puts the law enforcement officer in the position of being responsible for making the determination whether the weapon or the caliber used is appropriate for the game that is in season. A long gun could be in the car for hunting deer and be legal, but if it is still in the car the day after deer season it becomes a gun crime.
“Unless it is a .22 for hunting squirrels, I would advise my clients to say they are hunting hogs,” Still said. (Hunting hogs is legal year-round and it takes a larger caliber round similar to a personal defense round.)
Still said this also brings up the issue as to whether or not there is a plug in place in a shotgun to limit its capacity of rounds to make it legal for shooting birds.
“They changed the definition of a shotgun under Alabama law,” Brown said. “This is a step backward.”
Brown is hoping that Sen. Gerald Allen (R-Tuscaloosa) can amend the bill when it gets to the Senate.
Still said that the legislature should pass a “clean” Constitutional carry bill that does not take away any rights that the people of Alabama already have.
To connect with the author of this story, or to comment, email brandon.moseley@1819News.com.
