Eroding the right to exclude in Alabama by Elton Darby

Eroding the right to exclude in Alabama

by

Elton Darby

On March 31, 2011, Jason Dean Tulley entered the First Educators Credit Union in Jacksonville, Alabama.[1] Tulley carried a pistol in an unconcealed hip holster on his belt.[2] James Clayton, an off-duty police officer working as a security guard, approached Tulley and requested Tulley return the pistol to his car.[3] After a brief argument, Tulley returned the pistol to his vehicle.[4] Tulley was later arrested and charged with “carrying a pistol on premises not his own” under Ala. Code 13A-11-52.The Jacksonville Municipal Court convicted Tulley, and the Alabama Court of Criminal Appeals affirmed. [5] In Ex parte Tulley, the Alabama Supreme Court reversed.[6] The Court held that Tulley’s due process rights had been violated and that 13-A-11-52 was “facially unconstitutional” because it did not list a penalty for violation of the statute.[7] Ex parte Tulley represents a breakthrough for gun owners. Notwithstanding property owners’ objections, gun owners like Tulley, even if they do not have a permit, can carry a gun nearly anywhere they wish. The objections of private property owners now take a backseat to the desire for unrestricted gun rights. Whether property owners operate fireworks stands, churches, or credit unions, the reality in Alabama is clear: they cannot exclude firearms from their property.

This blog discusses Alabama’s erosion of the property owners’ right to exclude. It does not seek to argue against the fundamental right to keep and bear arms. Rather, it urges Alabama to join states like Texas in balancing, rather than steamrolling, fundamental property rights with unlimited second amendment values.

Americans have a fundamental right to keep and bear firearms.[8] In all fifty states, persons may become authorized to carry a concealed firearm.[9] States employ a diverse array of regulatory schemes to for the issuance of concealed carry permits. The least restrictive are “constitutional carry” states. In these states, no state-issued permit is required to carry a concealed weapon.[10] Weapons can be purchased without restriction, and carried to any place in any manner. On the other end are states like California, which require background checks and waiting periods to even obtain a gun.[11] Alabama, along with the majority of states, provide that the state “shall issue” a concealed weapons permit to persons who meet the statutory requirements.[12] The prevalence of concealed carry legislation makes clear that many states wish for the public to be able to carry their guns outside the home. But may they do so against the wishes of private property owners?

When the destination is work, many states answer Yes. Parking lot laws, enacted by Alabama and a number of other states, provide that employers may not prohibit employees from keeping legal firearms in their vehicles while at work.[13] There are a few exceptions, such as when the firearm is illegal, or the employer has reason to believe the employee will cause bodily harm to others. Parking lot laws have been the subject of much controversy. Proponents argue the laws further the Second Amendment’s “central component” of self-defense.[14] Opponents have claimed, amongst other things, that the laws represent an unconstitutional taking and that the laws violate substantive due process rights related to property.[15]

When the destination isn’t work, the states are split. If the First Educators Credit Union in Ex parte Tulley were located in Texas, a state not commonly regarded in opposition to gun rights, Tulley could be criminally liable for trespass.[16] Private property owners in Texas may prohibit the presence of guns on their property so long as they comply with a posting requirement. The posting requirement allows property owners wishing to exclude firearms from their property to post a sign providing clear indication that the owner prohibits firearms on the property.[17] Concealed carry permit holders who disregard a proper posting are guilty of a misdemeanor. [18] In contrast, Alabama offers only five narrow exceptions to the general rule that persons may carry a gun on the property of anyone.[19] These exceptions do not include places of worship, places where alcohol is served, or child care centers.

The wide-open nature of Alabama law regarding firearms on the property of another disregards the traditional rights of property owners to exclude. In essence, Alabama law completely disregards the nature of an owner’s use of the property, and whether that use might not comport with the public’s possession of deadly weapons. It isn’t difficult to understand why financial institutions like First Educators might wish to prevent guns in their branches. Alabama, however, has removed First Educators ability to decide. No matter the degree of harm that could be imposed by the presence of deadly weapons, First Educators cannot prevent their presence unless it falls into one of the narrow exceptions. This is striking in a world where persons can be removed from private property almost any reason. Persons are commonly removed from property for harmless activities such as remaining at a bar past closing time, or even speaking out at a presidential rally.[20] Alabama has already forced employers to permit weapons in employee’s vehicles. Disallowing property owners a choice to permit firearms further reduces their control of business operations by eroding away their fundamental property right to exclude.

Mr. Tulley infringed upon First Educators’ right to exclude him from it’s private property, yet he emerged unscathed. To prevent similar infringements in the future, Alabama should join Texas in enacting a posting requirement for the prohibition of guns on private property. As discussed, the posting requirement would allow businesses like First Educators to be able to enforce a firearm prohibition backed by the force of law. Such a provision adequately respects the coexistence of two titanic rights in American law. The Supreme Court has termed the right to exclude the most important stick in the of the bundle of property rights.[21] It’s time for Alabama to give that stick back to business owners.

 

 

 

 

 

[1] Ex parte Tulley, ___ So.3d ____, No. 1140049, 2015 WL 5192182 (Ala. Sept. 4, 2015) at *3.

[2] Id; In this article I discuss a property owner’s right to exclude those who possess a “concealed carry” firearm permit. Tulley, however, apparently partook in “open carry” – the open display of a pistol without a permit.

[3] Id.

[4] Id.

[5] Id. at *3-4.

[6] Id. at *10.

[7] Id.

[8] See U.S. Const. amend II; District of Columbia v. Heller, 554 U.S. 570, 595 (2008).

[9] As referred to in this blog, a concealed weapons permit allows a person to carry a concealed pistol on their person. See Ciara McCarthy, Concealed Carry is Now Legal in All Fifty States, Slate,http://www.slate.com/blogs/crime/2013/07/11/illinois_concealed_carry_carrying_guns_in_public_is_legal_in_all_50_states.html (last visited Mar. 8, 2016).

[10] See Eric Benson, Vermont’s Long, Strange Trip to Gun-Rights Paradise, The Trace, (discussing how Vermont is the only state which does not have, and has never had, a firearm permit requirement) http://www.thetrace.org/2015/07/vermont-gun-rights-constitutional-carry/ (last visited Mar. 8, 2016).

[11] Amber Phillips, California has the nation’s strictest gun laws, Washington Post, https://www.washingtonpost.com/news/the-fix/wp/2015/12/04/california-has-the-nations-strictest-gun-laws-here-are-the-other-strictest-and-loosest-states/ (last visited Mar. 8, 2016).

[12] Ala. Code § 13A-11-65 (West through 2016 Reg. Sess).

[13] See e.g., Ala. Code § 13A-11-65 (West through 2016 Reg. Sess).

[14] Ethan T. Stowell, Note, Top Gun: The Second Amendment, Self-Defense, and Private Property Exclusion, 26 Regent U. L. Rev. 521, 541 (2014).

[15] J. Blake Patton, Note, Pro-Gun Property Regulation: How the State of Oklahoma Controls the Property Rights of Employers Through Firearm Legislation, 64 Okla. L. Rev. 81, 99-102 (2011) (critiquing the Tenth Circuit’s reasoning in upholding an Oklahoma parking lot law in Ramsey Winch Inc. v. Henry); Also See Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1211 (10th Cir. 2009).

[16] Tex. Penal Code Ann. § 30.06 (West through end of 2015 Reg. Sess.).

[17] Id.

[18] Id.

[19] Guns are prohibited inside five categories of facilities in Alabama. These are (1) police facilities (2) corrections facilities (3) mental health facilities (4) public or private school or university athletic event not related to firearms (5) professional athletic event not related to firearms. See Ala. Code. 13A-11-61 (West through Act 2016-54 of 2016 Reg. Sess.)

[20] Jeremy Diamond, Silently protesting Muslim woman ejected from Trump rally, Cable News Network, http://www.cnn.com/2016/01/08/politics/donald-trump-muslim-woman-protesting-ejected/ (last visited Mar. 8, 2016).

[21] Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979).

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