Tag Archive | Alabama

Alabama’s Self Defense Law and Stand Your Ground Law

With the trial and then verdict in the case of George Zimmerman there has been a lot of discussions about the law of Self Defense.

In Alabama the Self Defense law has been modified to give people more rights to protect themselves, their home and other people.  We have a “Stand Your Ground” provision in the law. The provision states that “ is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person… ”  the criteria is listed in the law below.  The law goes even further and states “a person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.

Presumption and immunity are a strong words and are a strong defense if every charged with a crime or sued, but the law has carved out several areas that the presumption and immunity are lost.

They are:

The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;

The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used

The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity;

The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties;

The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;

The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;

The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.

This law is very strong if determined the use of force was justifiable, but that does not mean a person will not be charges with a crime, just gives the person a strong defense. You will need to get a lawyer who will aggressively use the law before it gets to the trial stage.  I have had several case where a client was charged, but by invoking the law, the charges were either dropped or did not come out of the grand jury.

Know the law, know your rights and make sure you hire an aggressive attorney if you find yourself in this situation.

13A-3-23. Self-defense — Defense of others.

  • (a)  A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or the defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is:
    • (1)  Using or about to use unlawful deadly physical force.
    • (2)  Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling.
    • (3)  Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree, forcible rape or forcible sodomy.
    • (4)  In the process of unlawfully and forcefully entering, or has unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle, or federally licensed nuclear power facility, or is in the process of sabotaging or attempting to sabotage a federally licensed nuclear power facility, or is attempting to remove, or has forcefully removed, a person against his or her will from any dwelling, residence, or occupied vehicle when the person has a legal right to be there, and provided that the person using the deadly physical force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring. The legal presumption that a person using deadly physical force is justified to do so pursuant to this subdivision does not apply if:
      • a.  The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
      • b.  The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;
      • c.  The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
      • d.  The person against whom the defensive force is used is a law enforcement officer acting in the performance of his or her official duties.
  • (b)  A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.
  • (c)  Notwithstanding the provisions of subsection (a), a person is not justified in using physical force if:
    • (1)  With intent to cause physical injury or death to another person, he or she provoked the use of unlawful physical force by such other person.
    • (2)  He or she was the initial aggressor, except that his or her use of physical force upon another person under the circumstances is justifiable if he or she withdraws from the encounter and effectively communicates to the other person his or her intent to do so, but the latter person nevertheless continues or threatens the use of unlawful physical force.
    • (3)  The physical force involved was the product of a combat by agreement not specifically authorized by law.
  • (d)  A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.
  • (e)  A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.

Lawyers look to Alabama Supreme Court on juvenile killer sentences after legislature fails to act

By Kent Faulk | kfaulk@al.com 
May 21, 2013 at 6:13 PM

BIRMINGHAM, Alabama – How Alabama judges will handle the sentencing of juveniles convicted of capital murder – for at least the immediate future — now appears to be in the hands of the Alabama Supreme Court after the Alabama Legislature failed to enact a bill addressing the issue.

A bill had been pending in the state legislature to address a U.S. Supreme Court ruling in Miller v. Alabama last June that bars automatic no-parole sentences for juvenile killers. The session ended Monday with no final action on the bill.

“We were very disappointed that the legislature didn’t act,” said Wendell Sheffield, the attorney for one of the teens awaiting trial on capital murder charges in the deaths of five people at a house in Ensley. “We have an act that’s unconstitutional. We have a client who is in jail on a no-bond.”

Sheffield is among several attorneys who have asked local circuit judges to toss out the capital murder indictments against their teen clients after the U.S. Supreme Court ruling.

Those teens include:

 Rashad Stoves (Sheffield’s client), one of three teens indicted on capital murder charges in the January 2012 shooting deaths of five men at a house in the Ensley Highlands neighborhood of Birmingham. Stoves was 17 at the time of the shooting.

– Larry Henderson was indicted on a capital murder charge in the June 6, 2010, shooting death of Alex Rogers, 69, after a dispute in Ensley. Henderson was 16 years old at the time of the shooting. Another man, Detrick McGee, also was charged in Rogers’ death but McGee was 18 at the time of that shooting.

– Andrew Amison, was 17 when Mobile police arrested him on allegations that he participated in the robbery and killing of Sam Richardson inside in Main Street Barbershop on Nov. 22, 2011. Last month Amison’s attorney asked Mobile County Circuit Judge Robert Smith to throw out the capital murder charge.

Judges denied the requests in the Stoves and Henderson cases. In March Sheffield and Donald Colee, who represents Henderson, argued their appeals to the Alabama Supreme Court.

The Alabama Supreme Court had not ruled in the appeal as of today in the Stoves and Henderson appeals. “I think everybody was thinking they (Supreme Court justices) were waiting on the legislature” to address the issue first, Sheffield said.

“We are definitely looking for some action on their (Alabama Supreme Court) part,” Sheffield said. “Everybody’s in limbo.”

The U.S. Supreme Court in 2005 had ruled that juveniles cannot face the death penalty. Since then when juveniles in Alabama have been convicted of capital murder, they have automatically been sentenced to life without the possibility of parole _ the only other option remaining under Alabama’s capital punishment law.

But in last year’s ruling the U.S. Supreme Court said that judges must have options to sentence juveniles to something other than life without the possibility of parole.

Many attorneys and judges believed the Alabama Legislature would enact a bill that would deal with the issue. The bill introduced in the 2013 state legislative session, which ended Monday, called for giving judges the option of sentencing a juvenile convicted of capital murder to life, with one shot at parole after 40 years.

State Sen. Cam Ward, R-Alabaster, who had sponsored the bill in the Alabama Senate, stated in an email this afternoon that the reason the bill didn’t pass was mainly because it got caught up “in the procedural log jam of the last day.”

“Also, you had some people who wanted to make it 70 years instead of 40 which in my opinion would have been unconstitutional,” Ward stated.

Sheffield said that if the Alabama Supreme Court were to grant their appeal in the quest to have the capital murder indictment tossed out, he believes the state prosecutors would move “very, very, quickly” to charge Stoves with murder.

If the Alabama Supreme Court were to rule against them, however, it would basically leave the question in place about what state judges can do in sentencing teens convicted of capital murder, Sheffield said. If that happened, they would continue the appeal, he said.

“We’re not going to let this drop,” Sheffield said.

If the bill had been approved, Sheffield said they would have challenged it anyway. One shot at parole after 40 years only gave “lip service, not substance” to the U.S.

“I think courts in this jurisdiction need direction from the Supreme Court of Alabama in how they need to proceed,” Sheffield said.

Tommy Nail, the presiding Jefferson County Circuit Court criminal judge, said today that the judges and lawyers are “left to our own devices” and will have wait until the Alabama Supreme Court renders a decision.

Scathing report on treatment of inmates: Legislator says feds could take over Tutwiler: Cam Ward says ‘abuses are well documented’

Cam Ward says ‘abuses are well documented’

Written by
Kala Kachmar

A state legislator openly expressed concern that there could be a federal takeover of Alabama’s prison system if corrections are not made at Julia Tutwiler Prison for Women.

The concern was expressed at a meeting of the Joint Legislative Prison Committee held to discuss a U.S. Department of Justice’s National Institute of Corrections (NIC) report that found a multitude of problems at the prison, including a failure to report sexual abuse of inmates. The report was based on a three-day on-site assessment of cross-gender supervision at Tutwiler.

Alabama Prison Commissioner Kim Thomas requested the assessment months after the Montgomery-based nonprofit Equal Justice Initiative released a report that found Alabama Department of Corrections employees had illegal sexual contact with dozens of women at the Wetumpka facility. The group also said official responses to reports of abuse created an atmosphere of intimidation that discouraged future complaints.

Thomas began implementing new policies to take corrective action in December, about a month after the report, which found a culture of “intimidation and undue harshness” at the prison, was released. Since then, Thomas and his staff have developed an official action plan that directly addresses some of the issues in both reports.

State Sen. Cam Ward, R-Alabaster, said it’s important legislators show “political will” to start fixing some of the problems at Tutwiler and in other prisons in the state. He said the prison system is the most underfunded, overcrowded in the country.

Ward said the system is in jeopardy of being taken over by the federal government, and taking steps to make changes will help “fend off” future litigation.

“I think we’re going to make sure we hold the officials in the Department of Corrections accountable,” Ward said. “We have a definite issue at Tutwiler. The abuses are well documented.”

He said although there is an action plan, the Legislature has to provide oversight to make sure it’s carried out.

Rep. Allen Farley, R-McCalla, said after reviewing the 30 issues summarized at the end of the NIC report, only seven had to do with budget constraints. He said the rest “dealt with management, people and responsibility,” and that staff should have been responsible for things such as making sure the hotlines used to report staff misconduct or sexual assault were working.

Farley asked Thomas to consider reopening investigations of staff members at the facility that were “swept under the rug.”

Thomas said he wasn’t opposed to the idea.

State Sen. Vivian Davis Figures, D-Mobile, said part of the problem is that for decades in Alabama, political leaders have used calls for stricter punishment of criminals to get elected.

“Until we as a legislature deal with the reality of what’s happening, nothing is going to change,” she said.

Figures also said an NIC report should be done on all 28 of the state’s prison facilities, and that there are sexual assaults and inmate mistreatment in male prisons too. The reports can help political leaders and corrections staff decide the best way to make changes.

“We want to be proactive instead of reactive,” Ward said. “We don’t want to get into another situation like Tutwiler that bubbles over.”

Scathing report on treatment of inmates: Legislator says feds could take over Tutwiler: Cam Ward says ‘abuses are well documented’

Alabama Dept of Corrections plan addresses Tutwiler abuses

State Prisons Commissioner Kim Thomas on Friday released an action plan for Julia Tutwiler Prison for Women to take “aggressive steps” to address allegations of rape at the facility.

The release of the plan follows a three-day visit by the National Institute of Corrections in September to review the Wetumpka facility.

Thomas said he invited the NIC to tour the facility after the nonprofit group Equal Justice Initiative released a report that found widespread rapes of inmates by Tutwiler employees.

The four-person NIC team produced a 38-page report on the prison, and Thomas conceded Friday that the agency found an “oppressive, intimidating atmosphere” at the facility.

The NIC team met with staff members after its visit, and Thomas said changes began almost immediately.

“The very next day we began to implement changes while we awaited the final report,” Thomas said.

EJI Executive Director Bryan Stevenson said it was a good sign that Thomas invited the NIC on his own accord but added that a long-term solution is going to be needed to fix the state’s prisons.

“I think this report really wakes people up,” Stevenson said.

He added the report points to issues that are systemwide, including a lack of funding and prison overcrowding.

Stevenson and Thomas both said Tutwiler is at least 90 percent over capacity. Thomas said it also is only 60 percent staffed.

Thomas would not go into details Friday about how many ADOC employees had been fired or prosecuted in connection with sexual assaults at Tutwiler. He said there had been one pregnancy as the result of a rape of an inmate by a correctional employee.

Among the problems found in the report were a lack of security cameras and a lack of female employees.

In his action plan, Thomas vows to pursue at least $3.2 million to provide cameras and monitoring equipment at Tutwiler.

The plan calls for the recruitment and hiring of female correctional officers to work at Tutwiler and directing any new trainees with ADOC from the Montgomery area to be assigned to either Tutwiler or the Montgomery Women’s Facility.

Other directives in the action plan include more training in the Prison Rape Elimination Act and changes to improve conditions in general at the prison.

Corrections plan addresses Tutwiler abuses

Equal Justice Initiative Investigation Into Sexual Violence at Tutwiler Prison for Women