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Comp-tech
State Researcher
| Joined: | Tue Apr 10th, 2007 |
| Location: | Alabama USA |
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Posted: Sat Sep 20th, 2008 01:29 am |
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Grapeshot wrote: pro2A wrote: Good job! It only gets easier from here. I think I'm to the point now its so natural that I don't notice if people notice... if that makes sense. I'll get the occasional inquiry, but that's about it.
Fine in Va. & Pa. but apparently not so good in Alabama but please do notice what others are doing where ever you are.
Cannot imagine going out to eat with a few friends - all of my really good friends OC - and being charged with a violation of public demonstration law. Has this actually happened or is this hypothetical?
Yata hey
Never happened that I'm aware of...and I don't think LE would try and use that statute.
When OCers here that have been arrested, it has been under 13a-11-52 (carrying a pistol on premises not his own) and/or 13a-11-7 (disorderly conduct)....neither of which apply IMHO
But then, my opinion doesn't count when being put face down, hand-cuffed, my property seized etc.
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Grapeshot
Activist Member
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Posted: Sat Sep 20th, 2008 05:52 am |
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Comp-tech wrote: Grapeshot wrote: pro2A wrote: Good job! It only gets easier from here. I think I'm to the point now its so natural that I don't notice if people notice... if that makes sense. I'll get the occasional inquiry, but that's about it.
Fine in Va. & Pa. but apparently not so good in Alabama but please do notice what others are doing where ever you are.
Cannot imagine going out to eat with a few friends - all of my really good friends OC - and being charged with a violation of public demonstration law. Has this actually happened or is this hypothetical?
Yata hey
Never happened that I'm aware of...and I don't think LE would try and use that statute.
When OCers here that have been arrested, it has been under 13a-11-52 (carrying a pistol on premises not his own) and/or 13a-11-7 (disorderly conduct)....neither of which apply IMHO
But then, my opinion doesn't count when being put face down, hand-cuffed, my property seized etc.
That's the same church - different pew.
Aren't any of these people filing/winning suits - payouts =education !
Yata hey
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Comp-tech
State Researcher
| Joined: | Tue Apr 10th, 2007 |
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Posted: Sat Sep 20th, 2008 07:57 am |
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Grapeshot wrote: That's the same church - different pew.
Aren't any of these people filing/winning suits - payouts =education !
Yata hey
None that I'm aware of......
One of the members here was arrested and got the charges dropped using a pro-bono lawyer....but I don't think the lawyer was interested in filing a case without $
IIRC, they had him sign something saying he wouldn't sue in return for dropping charges, or something along those lines.
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kurtmax_0
Member
| Joined: | Mon Apr 23rd, 2007 |
| Location: | Auburn, Alabama USA |
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Posted: Mon Sep 22nd, 2008 07:47 pm |
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Release dismissal agreements are kind-of enforceable. In this case it probably wouldn't be as the agreement was obviously made to protect an officer from wrongful arrest charges.
IIRC a release dismissal agreement needs to meet specific requirements to be binding. Covering a police officer's ass is not one of them. It's basically supposed to only be used when someone has been legitimately charged with an actual crime and could probably win in criminal court, but the prosecutor doesn't have the time to prosecute, and also doesn't want to get sued.
My guess is that if Mathis really wanted to go after the officer, a higher court would disregard the agreement.Last edited on Mon Sep 22nd, 2008 08:00 pm by kurtmax_0
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Grapeshot
Activist Member
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Posted: Mon Sep 22nd, 2008 09:47 pm |
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Comp-tech wrote: Grapeshot wrote: That's the same church - different pew.
Aren't any of these people filing/winning suits - payouts =education !
Yata hey
None that I'm aware of......
One of the members here was arrested and got the charges dropped using a pro-bono lawyer....but I don't think the lawyer was interested in filing a case without $
IIRC, they had him sign something saying he wouldn't sue in return for dropping charges, or something along those lines.
Find an attorney that will take it on a contingency basis - got to be one !
Yata hey
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Phoenixphire
Activist Member
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Posted: Sat Sep 27th, 2008 08:28 am |
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Section 13A-11-59 Possession of firearms by persons participating in, attending, etc., demonstrations at public places.
(a) For the purposes of this section, the following words and phrases shall have the meanings respectively ascribed to them in this subsection, except in those instances where the context clearly indicates a different meaning:
(1) DEMONSTRATION. Demonstrating, picketing, speechmaking or marching, holding of vigils and all other like forms of conduct which involve the communication or expression of views or grievances engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. Such term shall not include casual use of property by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers.
(2) FIREARM. Any pistol, rifle, shotgun or firearm of any kind, whether loaded or not.
(3) LAW ENFORCEMENT OFFICER. Any duly appointed and acting federal, state, county or municipal law enforcement officer, peace officer or investigating officer, or any military or militia personnel called out or directed by constituted authority to keep the law and order, and any park ranger while acting as such on the grounds of a public park and who is on regular duty and present to actively police and control the demonstration, and who is assigned this duty by his department or agency. Such term does not include a peace officer on strike or a peace officer not on duty.
(4) PUBLIC PLACE. Any place to which the general public has access and a right to resort for business, entertainment or other lawful purpose, but does not necessarily mean a place devoted solely to the uses of the public. Such term shall include the front or immediate area or parking lot of any store, shop, restaurant, tavern, shopping center or other place of business. Such term shall also include any public building, the grounds of any public building, or within the curtilage of any public building, or in any public parking lot, public street, right-of-way, sidewalk right-of-way, or within any public park or other public grounds.
(b) It shall be unlawful for any person, other than a law enforcement officer, to have in his or her possession or on his or her person or in any vehicle any firearm while participating in or attending any demonstration being held at a public place.
(c) It shall be unlawful for any person, other than a law enforcement officer as defined in subsection (a) of this section, to have in his or her possession or about his or her person or in any vehicle at a point within 1,000 feet of a demonstration at a public place, any firearm after having first been advised by a law enforcement officer that a demonstration was taking place at a public place and after having been ordered by such officer to remove himself or herself from the prescribed area until such time as he or she no longer was in possession of any firearm. This subsection shall not apply to any person in possession of or having on his or her person any firearm within a private dwelling or other private building or structure.
(d) Any person violating any of the provisions of this section shall be guilty of a misdemeanor and shall be punished as provided by law.
(Acts 1979, No. 79-455, p. 743; Code 1975, §13-6-131.)
Frankly, this should be challenged on constitutional grounds.
Basically, this law is stating that it is illegal to exercise two Constitutionally guaranteed rights at the same time.
You could participate in or attend a demonstration, no problem. You can also carry a firearm, no problem. But, try to exercise both at the same time!?! Horrors! That's a no-no!
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Comp-tech
State Researcher
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Posted: Sun Sep 28th, 2008 12:05 am |
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Phoenixphire wrote: Frankly, this should be challenged on constitutional grounds.
Basically, this law is stating that it is illegal to exercise two Constitutionally guaranteed rights at the same time.
You could participate in or attend a demonstration, no problem. You can also carry a firearm, no problem. But, try to exercise both at the same time!?! Horrors! That's a no-no!
I agree....I don't think it would stand either...
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Grapeshot
Activist Member
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Posted: Sun Sep 28th, 2008 03:56 am |
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No Minutemen allowed law - not even for 60 sec. 
Yata hey
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Comp-tech
State Researcher
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Posted: Sun Sep 28th, 2008 10:32 am |
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How would a challenge be brought? Would someone need to get arrested then challenge?
I wonder too, if the requirement for a PL to have a pistol in a vehicle, might be unconstitutional in the same way.
If I understand case law, travel is indeed a Right......
The U.S. Supreme Court ruled that: The "RIGHT" to travel is a part of the liberty of which the Citizen cannot be deprived without due process of the law under the 5th Amendment. (Emphasis added) See: Kent v. Dulles, 357 U.S. 116, 125
The U. S. Supreme Court ruled that:
Undoubtedly the "RIGHT" of locomotion, the "RIGHT" to remove from one place to another according to inclination, is an attribute of personal liberty, and the "RIGHT," ordinarily, of free transit from or through the territory of any State is a "RIGHT" secured by the Fourteenth Amendment and by other provisions of the Constitution. (Emphasis added). See: Williams v. Fears, 343 U.S. 270, 274
Last edited on Sun Sep 28th, 2008 10:34 am by Comp-tech
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Phoenixphire
Activist Member
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Posted: Mon Sep 29th, 2008 03:31 am |
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Actually, the proper way to question this law is to file for a declaratory judgement.
Most states have a Uniform Declaratory Judgement Act.
I don't know if Alabama does, and I am to lazy to look it up right now.
http://en.wikipedia.org/wiki/Declaratory_judgment
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Comp-tech
State Researcher
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Posted: Mon Sep 29th, 2008 05:02 am |
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Phoenixphire wrote: Actually, the proper way to question this law is to file for a declaratory judgement.
Most states have a Uniform Declaratory Judgement Act.
I don't know if Alabama does, and I am to lazy to look it up right now.
http://en.wikipedia.org/wiki/Declaratory_judgment
Thanks for the "pointer"....
Uniform Declaratory Judgments Act Ala. Code § 6-6-220 et seq.
http://www.legislature.state.al.us/CodeofAlabama/1975/coatoc.htm
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HungSquirrel
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Posted: Mon Sep 29th, 2008 11:19 pm |
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Because getting this nonsense overturned may require an actual "case or controversy", I feel it may be safer (and quicker) to try to find sympathetic ears in the legislature, and have them draft a bill to repeal it. Even if you don't get support, that option ought to be tried before anyone risks arrest to get it overturned...
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Comp-tech
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Posted: Tue Sep 30th, 2008 03:16 am |
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HungSquirrel wrote: Because getting this nonsense overturned may require an actual "case or controversy", I feel it may be safer (and quicker) to try to find sympathetic ears in the legislature, and have them draft a bill to repeal it. Even if you don't get support, that option ought to be tried before anyone risks arrest to get it overturned...
Wouldn't a law being unconstitutional be considered a controversy?
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HungSquirrel
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Posted: Tue Sep 30th, 2008 03:39 am |
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There you go being logical again. You have to remember to think like a lawyer. Under "cause and controversy", there usually isn't a controversy until you are somehow directly wronged by the law, e.g. get arrested for carrying while protesting. That's my understanding, anyway. Haven't yet had a chance to read Alabama laws on this matter.
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Comp-tech
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Posted: Tue Sep 30th, 2008 04:46 am |
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HungSquirrel wrote: There you go being logical again.
Sorry HS...just can't help myself
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Phoenixphire
Activist Member
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Posted: Tue Sep 30th, 2008 01:04 pm |
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HungSquirrel wrote: There you go being logical again. You have to remember to think like a lawyer. Under "cause and controversy", there usually isn't a controversy until you are somehow directly wronged by the law, e.g. get arrested for carrying while protesting. That's my understanding, anyway. Haven't yet had a chance to read Alabama laws on this matter.
The purpose of the Uniform Declaratory Judgment Act is outlined in the act. Namely, this is so that you DON'T have to actually "test" the law. Instead, you ask the court to "pre-rule" the issue.
Section 6-6-221Purpose, construction and administration of article. This article is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respects to rights, status, and other legal relations and is to be liberally construed and administered. This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments.
The court has jurisdiction on matters of "insecurity of rights" when it comes to Declaratory Judgments. The "controversy" is created by a person asking to the court to clarify their rights and responsibilities in regard to the law.
So, you are correct, there does need to be a "controversy". This law just makes it simple to create it. All you have to do is state there is one, presuming, of course, that the matter has not been resolved previously.
Last edited on Tue Sep 30th, 2008 01:06 pm by Phoenixphire
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denthack
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Posted: Wed Oct 1st, 2008 02:48 am |
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I don't want to jump the gun here... but i think pheonixphire just brought to our attention a way to actually get something done about our gun laws in AL. 
I have been trying to find and "Officer" friendly to open carry and gun right to request an AGO... since us citizens cannot.
http://www.ago.state.al.us/opinion.cfm
Who is entitled to request an Attorney General's opinion?
Any officer, governing body, department or agency of the State, a county, or municipality.
How should opinion requests be submitted?
Opinion requests should be submitted in writing. If the opinion request is submitted by a board or governing body, a resolution from the board or governing body should also be included.
When will opinions not be issued?
The Attorney General does not address issues concerning matters currently in litigation. The Attorney General does not address moot, private, or personal questions in which the state, county, or public is not materially or primarily interested. The Attorney General does not address the constitutionality of statutes.
So under this Uniform Declaratory Judgement Act, how can a request for a ruling be made? Would a legislator have to make the request? Would we have to find a lawyer willing to request it? (Pro Gun Rights Lawyer might not be a bad idea of have on board anyways)
Who actually makes the ruling? If the ruling is unsatisfactory could it be challenged or taken to a higher court? What if SCOAL rules unfavorably... Would it have the potential of going to SCOTUS as Heller did?
I'm all for trying to get these laws changed through the courts without someone having to get arrested.... my mother just wouldn't understand... 
I realize i said "laws changed" when in fact they need to be clearly interpreted, and depending on the courts interpretation then changed.
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Phoenixphire
Activist Member
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Posted: Wed Oct 1st, 2008 03:58 am |
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Well, basically, you file a lawsuit.
In Indiana, it can be done in any court of record, such as a superior court or circuit court.
Every state has its own requirements on who is required to be named party to the suit. Indiana, for constitutionality challenges, requires the Attorney General to be named for statues, and the municipality for local ordinances.
First, you want to make sure that the law in question hasn't already been challenged on constitutional grounds. If there is a previous ruling, most courts will not attempt to overturn a precedent.
If you don't find any previous case law regarding your concern, then start preparing your suit.
The best way is to hire an attorney (or, even better, an experienced paralegal... that is who will be doing it for the attorney anyway) to help you prepare the filing, to ensure it is in the proper format, etc.
You simply need to outline what the controversy is... Where the conflict between your rights and the law arises. You file it, the court schedules a hearing, and provides a ruling.
You most definitely can appeal a Declaratory Judgment, as well. For example: Heller vs. District of Columbia.... It began as a Declaratory Judgment case, called Parker v DC. Parker was dismissed for several reasons, one being standing. (There was no basis for some of the plaintiffs to file for having a gun in their home in DC, as they did not live in DC, etc.) They reworked to filing to meet the courts requirements, then appealed the dismissal to the DC Court of Appeals ( http://tinyurl.com/ywcg7k ) They won there. The District of Columbia then appealed to the SCOTUS.
http://dcguncase.com/blog/case-filings
EDIT: Alabama has a Uniform Declaratory Judgment Act. You should read it.
http://www.legislature.state.al.us/CodeofAlabama/1975/coatoc.htm
It starts at 6-6-220 (Title 6, Chapter 6, Section 220)
Last edited on Wed Oct 1st, 2008 04:06 am by Phoenixphire
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