An Analysis of Act 283: Alabama's New Gun Legislation
| Jurisdiction | Alabama,United States |
| Citation | Vol. 74 No. 5 Pg. 0305 |
| Pages | 0305 |
| Publication year | 2013 |
Americans own no fewer than 200 million small arms.1 And, by one estimate, over 160,000 Alabama citizens-about three percent of the state's population-have a permit to carry a concealed pistol2 There is no doubt that America's long tradition of private firearm ownership is unique in the world, and that Alabamians relish it about as much as anyone else.
After more than two centuries of relative silence on the meaning of the Second Amendment, the United States Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. ___, 130 S. Ct. 3020 (2010), established that the Second Amendment guaranteed an individual right to bear arms, and that the right was protected from infringement by the state and the federal governments alike.
Meanwhile, crazed individuals have used firearms in particularly horrific criminal acts, leading some in Congress and in various state legislatures to propose stricter limits on private firearm ownership. So many forces pulling in opposing directions made it inevitable that individuals' rights under the Second Amendment, traditional concepts of private property rights and employers' prerogatives to govern employee conduct would come into contact with one another.
On May 21, 2013, Governor Bentley signed into law Act 2013-283 ("Act 283" or "the Act"). Act 283 is a wide-ranging revision of the law relating to firearms in Alabama. At 38 pages, the Act addresses a broad range of firearms-related topics, some of which have received attention in local news media, and some of which have not been as widely discussed or understood.
Most of the provisions of Act 283 do not directly affect employers' employment policies, but some certainly do. This article provides an overview of the provisions of the Act, with particular emphasis on employers' and businesses' rights and obligations under it.
Background: Alabama Firearms Laws before Act 283
To understand Act 283, it may help first to clarify a few high points about Alabama firearms law as they existed before the Act became effective.
First, it is important to know what a "pistol permit" is, and what it is not, under Alabama law. The phrase "pistol permit" is often used in imprecise ways tending to suggest, incorrectly, that one must have a permit or license to buy or possess a pistol. No permit or license is required to purchase, own or possess a pistol or any other common firearm in Alabama. That said, however, Alabama law has long prohibited the concealed carryingof pistols.3 Present-day law prohibits any person from "carry[ing] a pistol in any vehicle or concealed about his or her person," unless the person has a permit either issued by the sheriff of the Alabama county of his or her residence, or issued by another state and recognized through reciprocity.4 A "pistol permit" allows the holder legally to carry a pistol outside his or her own home or business, concealed on or about his or her person, or in his or her vehicle. That has always been the purpose of a "pistol permit" under Alabama law.5
That leads to the "may issue" versus "shall issue" distinction. Alabama sheriffs have long enjoyed fairly broad discretion to refuse to issue a pistol permit to anyone deemed not to be "a proper person" to hold such a permit: the standard in Alabama has long been that a sheriff "may issue" a permit if deemed appropriate.6 Under a "shall issue" statute, by contrast, the sheriff is presumptively required to issue a pistol permit upon application, unless cause is affirmatively shown why the permit ought not to be issued. You may be surprised to learn that Alabama, one of the reddest of the red states, was, until now, one of the few remaining "may issue" states. In recent years, most other states have either changed their laws to the "shall issue" standard or altogether abolished their permit requirements.7 Act 283 makes Alabama a "shall issue" state.
Enter Act 283
Act 283 covers a lot of ground, and the primary focus in this article is on the provisions directly affecting employers and business owners. To provide a broad overview of the scope of Act 283, however, the following are a few examples of the range of other topics covered in the legislation:
• It clarifies the legal status of "open carry" in Alabama by creating a rebuttable presumption that merely carrying "a visible pistol, holstered or secured, in a public place" does not, by itself, constitute the offense of disorderly conduct;
• It provides, as noted above, that sheriffs "shall issue" a pistol permit unless there are specific, documented grounds for denying issuance of the permit;
• It creates procedures and standards for judicial review of the denial or revocation of pistol permits;
• It makes changes to Alabama's law regarding reciprocity with other states' pistol permits; and
• It rewrites Alabama law relating to the legislature's preemption of local regulation of firearms.
The effective date of Act 283 was August 1, 2013.
Workplace Implications: The Parking Lot Rule
The central feature of Act 283 relating to the employer-employee relationship is the "parking lot rule." Subject to certain restrictions, starting August 1, Alabama employers must allow their employees to keep firearms in their vehicles in the parking lot.
Act 283 does not allow employees carte blanche to carry and possess firearms during the course of employment. To the contrary, Act 283 expressly reaffirms the employer's preexisting, common-law authority to regulate the possession of firearms by employees.8 Section 4(a) of Act 283 says:
Except as provided in subdivision (b), a public or private employer may restrict or prohibit its employees, including those with a license issued or recognized under Section 13A-11-75, Code of Alabama 1975 [i.e., a "pistol permit"], from carrying firearms while on the employer's property or while engaged in the duties of the person's employment.
While reaffirming that general common-law authority, Act 283 creates a narrow exception from the employer's prerogative to prohibit the possession of firearms in the workplace. The exception is limited to the employee's privately owned car, in the parking lot. The relevant part of the Act, found in Section 4(b), provides:
(b) A public or private employer may not restrict or prohibit the transportation or storage of a lawfully possessed firearm or ammunition in an employee's privately owned motor vehicle while parked or operated in a public or private parking area if the employee satisfies all of the following:
b. If the weapon is any firearm legal for use for hunting in Alabama other than a pistol:
ii. The weapon is unloaded at all times on the property;
iii. It is during a season in which hunting is permitted by Alabama law or regulation;
iv. The employee has never been convicted of any crime of violence as that term is defined in Section 13A-11-70, Code of Alabama 1975, nor of any crime set forth in Article 6 of Title 13A, Code of Alabama 1975, nor is subject to a Domestic Violence Order, as that term is defined in Section 13A-6-141, Code of Alabama 1975;
v. The employee does not meet any of the factors set forth in Section 13A-11-75(a)(1)a.1-8; and
vi. The employee has no documented prior workplace incidents involving the threat of physical injury or which resulted in physical injury.
(3) The firearm is either of the following:
b. In a motor vehicle unattended by the employee, kept from ordinary observation and locked within a compartment, container or the interior of the person's privately-owned motor vehicle or in a compartment or container securely affixed to the motor vehicle.
To qualify for the parking lot rule, the employee must satisfy the requirements set out in Section 4(b), and all of subparagraphs (1), (2) and (3). There are two separate and independent ways by which the employee may satisfy subparagraph (1), so we'll take up those last.
The Common Requirements: Section 4(b), 4(b)(2)-(3)-In all cases, in order for the parking lot rule to apply, the firearm or ammunition must be "lawfully possessed" (for example, it must be lawful for the employee to possess a firearm in the first place,9 and, if the firearm is a pistol, the employee must not be a minor,10 and generally must have a valid pistol permit11 ); the firearm must be kept in the employee's vehicle in the parking lot where the vehicle is otherwise allowed to be...
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