Hyde v. City of Birmingham
| Decision Date | 17 June 1980 |
| Docket Number | 6 Div. 238 |
| Citation | 392 So.2d 1226 |
| Parties | William Wayne HYDE v. The CITY OF BIRMINGHAM. |
| Court | Alabama Court of Criminal Appeals |
J. Louis Wilkinson, Birmingham, for appellant.
Rowena M. Crocker, Asst. City Atty., Birmingham, for appellee.
William Wayne Hyde was tried and convicted in Birmingham Municipal Court based upon a complaint charging him with "unlawfully (disturbing) the peace of others by having a firearm or firearms in his possession in a public place or within public view under circumstances where the natural tendency of such possession would be to provoke a breach of the peace, contrary to and in violation of Ordinance 79-71 of the General Code of the City of Birmingham, Alabama, 1964, as amended."
Appellant appealed the conviction to the Jefferson County Circuit Court where he obtained a jury trial. The jury found him "guilty as charged in the complaint" and fixed his punishment at a fine of one hundred dollars. The trial court set sentence in accordance with the verdict of the jury and the costs of court were also assessed against the appellant. Additionally, the appellant was sentenced to a total of twenty-seven days hard labor for the fine and the costs of the case.
The facts giving rise to the instant charge, as established at trial, are as follows:
In the summer of 1979, a young black woman, Bonita Carter, was shot and killed by a white police officer outside one of two Jerry's convenience stores located in the Kingston area of Birmingham, Alabama. Following that incident, racial tension was acute in the city and open acts of violence and racial conflict occurred in the area near the two Jerry's convenience stores. The two stores were located within five blocks of each other. The Bonita Carter shooting incident and the racial disturbances that followed were widely reported by various news media.
On July 6, 1979, at approximately 3:00 p. m., Officers John A. Gjellum and Chris Moore of the Birmingham Police Department received a radio dispatch to proceed to the area near one of the Jerry's convenience stores which had been the scene of several disturbances. Upon arriving at that location, the two officers observed a black pickup truck, which had been described in the radio dispatch, located in the parking lot of the convenience store. The truck immediately crossed the street to the Holiday Inn parking lot where another police car, manned by Officers Daniel Phillips and Michael C. Shores, was parked. Three white males were in the truck and the appellant was driving.
Officer Phillips approached the appellant and asked him to leave the area because they were expecting trouble. About that time Officers Gjellum and Moore drove into the parking lot, got out of their car, and approached the pickup truck. Officer Gjellum approached the driver's side of the truck and Officer Moore went to the passenger side. Both officers testified that from the outside of the truck they could clearly see a shotgun propped up against the seat of the truck between the appellant and the middle passenger. Officer Phillips testified that he was standing behind the driver's door at that time and did not see a gun.
Officer Gjellum asked appellant to step out of the truck and then removed therefrom three pistols and the shotgun. According to Gjellum the appellant stated at that time that the guns belonged to him. Neither of the other passengers claimed ownership of any of the guns.
Appellant was not charged with unlawful possession of the pistols because he had a valid permit; he was arrested, however, on the instant charge.
Appellant testified in his own behalf that he was in the vicinity of Jerry's convenience store on the day in question in order to pick up a friend and to go to target practice. Appellant disclaimed ownership of the shotgun and insisted that this friend, Wayne Sharp, brought the gun out of his house when he was picked up. Appellant explained that he stopped at Jerry's convenience store to get some ice, grapefruit juice and cigarettes and then drove across the street to the Holiday Inn parking lot to speak to a police officer he mistakenly thought he recognized.
He also stated on cross-examination that he was aware of the shooting which had taken place two weeks earlier and that the area around the Jerry's convenience stores had been the scene of late of violence and unrest.
I
On appeal appellant contends that Ordinance 79-71, General City Code of Birmingham, 1964, as amended, violates Article I, Section 26 of the Alabama Constitution of 1901.
Article I, Section 26, of the Alabama Constitution of 1901 provides as follows: "That every citizen has a right to bear arms in defense of himself and the state."
It is well-settled and "universally recognized," however, that this right of a citizen to bear arms in defense of himself and the state is subject to reasonable regulation under the police powers of the state. Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), affirmed, 267 Ala. 507, 103 So.2d 341, cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306; Jackson v. State, 37 Ala.App. 335, 68 So.2d 850 (1953).
It is likewise well-settled that the State of Alabama has conferred the full measure of its police power on the City of Birmingham to protect the public's safety, health, and welfare. § 11-45-1, Code of Alabama 1975; Holloway v. City of Birmingham, 55 Ala.App. 568, 317 So.2d 535 (1975).
The issue before this court on this appeal is whether the ordinance in question is a reasonable and valid exercise of the city's police powers.
The ordinance in question, omitting formal parts, reads as follows:
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City of Tucson v. Rineer, 2CA-CR97-0407
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