Alabama attorney general’s office: Requirement to disclose concealed firearms unenforceable
Permitless carry bill included mandate for individuals to tell law enforcement if they were armed, but no penalties included for failing to do so
Alabama Attorney General Steve Marshall prior to the State of the State address by Gov. Kay Ivey on Tuesday, March 7, 2023 in Montgomery, Ala. (Stew Milne for Alabama Reflector)
When the Alabama Legislature last year allowed permitless carry of concealed weapons, it included a provision requiring people with concealed weapons to disclose that fact to a law enforcement officer.
But a recent Alabama attorney general’s opinion says that provision may be toothless.
The opinion, issued in May in response to a request from the Tuscaloosa City Attorney’s office, said that because the law does not include a penalty for failure to disclose that information, no penalty can be enforced with respect to that part of the law.
“The plain language of the statute does not include a penalty, and under the established rules of statutory construction, words used in a statute must be given their ‘natural, plain, ordinary, and commonly understood meaning,’” wrote Ben Baxley, chief of the Opinions Division for the Alabama Attorney General’s Office.
HB 272, sponsored by Rep. Shane Stringer, R-Citronelle, did away with the requirement for pistol permits for concealed carry in most circumstances. They are still required when attending events at schools and may be required when a person travels outside the state.
Messages seeking comment were left with Stringer.
The Alabama Sheriffs Association opposed the law in part because of its effect on revenues, but also because the permit requirement allowed law enforcement to detain people they suspected could be committing or planning to commit a crime.
Legislators included provisions that required people carrying concealed weapons to disclose that to a law enforcement officer. The bill also allowed law enforcement to confiscate a weapon if the officer had “reasonable suspicion” that the person was committing a crime or about to do so, or if the officer believed there was a threat to safety. The bill required the return of the firearm if no crime was committed or no threat was determined.
But the legislation did not include penalties for not disclosing the information to an officer. The attorney general’s opinion cites Smith v. State, a 1983 state criminal case, which said that a “criminal statute must be definite and certain with respect to the punishment it is intended to impose.”
The opinion also cited Hankins v. State, a 2006 Alabama criminal case, which said that someone cannot be penalized unless there is language within the statute spelling out the punishment.
“Therefore, there is no penalty for violating this section, and no penalty can be enforced,” Baxley wrote.
HB 272 does include penalties for other actions, such as bringing a firearm in a federal facility where firearms are prohibited or brandishing a weapon in public.
Law enforcement criticism
Sheriffs throughout Alabama have been critical of the bill that became law earlier this year because it has cost them hundreds of thousands of dollars. They also said losing the ability to detain people for failure to carry a permit hurt public safety.
“This has nothing to do with what the Attorney General says,” Montgomery County Sheriff Derrick Cunningham said in an interview Wednesday. “It has a lot to do with what the Legislature did. They should have put that into the law when they made the law. Anytime you make a law you have to make a law that has consequences built into it.”
Cunningham said the law could limit the ability of officers to act during a traffic stop.
“It is going to be dangerous,” Cunningham said. “It is already dangerous. This right here puts icing on the cake, letting law enforcement know that you can’t arrest a person for failing to tell you they have a weapon in their possession.”
Some representatives agree.
“You can’t make an arrest,” said Rep. Chris England, D-Tuscaloosa, who works as an attorney in the Tuscaloosa City Attorney’s office. “Right now, there is no force of law behind it.”
In the last session, England introduced HB 12, which would have made failing to inform law enforcement when people have a firearm in their possession a Class A misdemeanor, punishable by up to a year in jail and a maximum $6,000 fine. The bill passed committee but did not come to a vote in the House of Representatives.
“This whole thing is to balance out our Second Amendment rights with law enforcement’s ability to protect themselves,” England said. “Disclosing when you have a firearm is crucial to that.”
Rep. Allen Treadaway, R-Morris, one of HB 272’s cosponsors and a retired Birmingham assistant police chief, said he had not read the opinion from the Attorney General, said in an interview Wednesday that law enforcement already takes precautions when approaching people.
“When asking that, they are trained to assume there is a weapon,” he said.
Treadaway said that a penalty wasn’t added because there exist cases in which there is a reason that a person may have a weapon without their knowledge. A child may be the person driving a parent’s car without knowing there is a firearm in the car. It could also be a spouse or a friend driving the vehicle.
“You have to look at how it applies when you have a right to carry a weapon without a permit,” he said. “They didn’t know there was a weapon in there, they are of legal age, and there was a weapon in the car, is that illegal under the Second Amendment?”
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