A federal judge in Atlanta recently issued a Temporary Restraining Order in favor of a Georgiacarry.org member. The Order requires a local probate judge and the Department of Public Safety to process the member’s application for a firearms license without disclosing his social security number. The basis for the lawsuit is the federal Privacy Act.

A copy of the federal court Order is here. http://www.georgiapacking.org/SSN_TRO.pdf

The lawsuit also seeks to prevent probate courts and the Department of Public Safety from demanding that applicants disclose their employment information in order to apply for a firearms license.

All relevant briefs filed in the case to date by the plaintiff and the government defendants are here:

http://www.georgiapacking.org/camp/

Many, but not all, probate judges in Georgia are refusing to issue temporary renewal firearms licenses at the time of renewal as required in the licensing statute (see prior “Alert!” on temporary licensing issue). Georgicarry.org needs your help in determining who the culprits are.

So far, we have compiled the following list of counties where the judges are and are not issuing temporary renewal licenses:

NOT ISSUING

Appling
Bacon
Baker
Baldwin
Banks
Cherokee
Clayton
Coweta
Dawson
DeKalb
Douglas
Fayette
Floyd
Forsyth
Fulton
Gwinnett
Hall
Henry
Lowndes
Meriwether
Rockdale
Spalding
Terrell
Toombs
Troup
Whitefield

ISSUING

Cobb *
Dougherty
Lee
Seminole (issues new card within 24 hours)
Upson (issues new card within 24 hours)

But there are 159 counties in Georgia, which means we lack information from 135 counties.

Please assist us. If your county is not listed in either category above, please contact your local probate court. All you have to do is say, “Hi. Are you issuing temporary renewal firearms licenses at the time of application for a five year renewal license?“

They will probably tell you, “There is no such thing as a renewal license anymore,” in which case, you may want to ask, just to clarify, whether they will issue you a temporary license when you apply for a renewal of yor current license.

Then please notify is of the answer and the county from which you obtained the answer.

Contact information for your probate court can be found here. http://www.georgiapacking.org/gfl1.php

Applicants for a renewal firearms license across the state are discovering that the majority of probate courts are refusing to issue temporary renewal licenses.  This began on July 1, 2006, when HB 1032 went into effect, causing mass confusion among the probate judges.  HB 1032 requires fingerprinting and a NICS check for renewal licenses as well as initial licenses.  This has lead probate judges to opine that the General Assembly “abolished” renewal licenses.  Nothing could be further from the truth.

 To read the text of HB 1032 for yourself, please go here.                                     http://www.legis.state.ga.us/legis/2005_06/fulltext/hb1032.htm

As you can see, HB 1032 struck through the old subsections (a) through (d) of the licensing statute (O.C.G.A. 16-11-129) and inserted new, similar sections that added “or renewal license” to many of the requirements that, prior to July 1, 2006, applied only to first time applicants.

How one reads a statute that says “renewal license” a dozen times and declares that there is now “no such thing” as a “renewal license” is difficult to fathom.

Anyway, the old subsection (i) is still intact, untouched by the July 1, 2006 amendment.  Subsection (i) declares that an applicant for a renewal license may receive a temporary license, good for 90 days, upon payment of $1.00.  It also declares that the judge is to issue the temporary license “at the time of application,” not later after some background check or fingerprinting.  Here is the text of the subsection:

O.C.G.A. 16-11-129(i) Temporary renewal licenses.

(1) Any person who holds a license under this Code section to carry a pistol or revolver may, at the time he applies for a renewal of the license, also apply for a temporary renewal license if less than 90 days remain before expiration of the license he then holds or if his previous license has expired within the last 30 days.

(2) Unless the judge of the probate court knows or is made aware of any fact which would make the applicant ineligible for a five-year renewal license, the judge shall at the time of application issue a temporary renewal license to the applicant.

(3) Such a temporary renewal license shall be in the form of a paper receipt indicating the date on which the court received the renewal application and shall show the name, address, sex, age, and race of the applicant and that the temporary renewal license expires 90 days from the date of issue.

(4) During its period of validity the temporary renewal permit, if carried on or about the holder?s person together with the holder?s previous license, shall be valid in the same manner and for the same purposes as a five-year license.

(5) A $1.00 fee shall be charged by the probate court for issuance of a temporary renewal license.

(6) A temporary renewal license may be revoked in the same manner as a five-year license.

Georgiacarry.org appealing adverse ruling.

To many of you who have read the licensing statute, O.C.G.A. 16-11-129, the answer to the question contained in the title appears to be rather simple and straightforward.

Not later than 60 days after the date of the application the judge of the probate court shall issue the applicant a license to carry any pistol or revolver if no facts establishing ineligibility have been reported and if the judge determines the applicant has met all the qualifications, is of good moral character, and has complied with all the requirements contained in this Code section.

As many of you already know, most of the counties take substantially longer than 60 days to issue a firearms license. Every one of them points the blame for delay to a source outside the probate court, which leaves one wondering how some of the probate courts manage to consistently issue firearms licenses within the statutory timeline.

Recently, the Honorable Allen B. Keeble, Judge of the Superior Court of Coweta Judicial Circuit, ruled that the statutory language quoted above means that a probate judge need not issue within 60 days. “The statute’s plain language gives probate judges the discretion to go beyond the 60 day time period . . .”

The briefs and the court order are available for viewing here: http://www.georgiapacking.org/sccc/

Georgiacarry.org is busy appealing this ruling to the Georgia Court of Appeals on behalf of the plaintiff and will post updates as they are available.

Georgia recognizes licenses from 21 other states.  A list of the states is contained in the Georgia Attorney General’s most recent press release. 

 http://www.state.ga.us/ago/press/press.cgi?prfile=PR.20060622.02

In addition, Arizona should qualify for recognition in Georgia, which makes 22 states outside the borders of Georgia that give effect to Georgia’s license.  In addition, many states allow open carry without a license of any sort.  See www.opencarry.org for a list of those states.  One state, Vermont, allows concealed carry but has no provision for licensing. 

The web site administrator over at www.georgiapacking.org has just completed a painstaking review of the county and municipal ordinances in all 159 counties and innumerable cities in Georgia and discovered to his relief that only 8 counties and 13 cities ban the carry of firearms in local parks or other facilities.

 We hope to reduce that number to zero.

The state law pre-emption statute (O.C.G.A. 16-11-173) expressly forbids cities and counties from passing such ordinances.

 To see if your city or county of residence is on the list, visit:                             http://www.georgiapacking.org/gflnol.php and review the list.

There are 159 counties in Georgia. Of those, only 8 counties have local ordinances banning the carry of firearms on certain county property, the most common of which is “parks.” The state government, however, has pre-empted the field of firearms regulation, leaving only three items on which local governments can pass legislation. Accordingly, I sent the following letter on August 22, 2006, to a local commissioner. On August29, 2006, I received a telephone call from the county administrator stating that the county attorney was reviewing this issue to recommend a course of action to the county commission. I will continue to keep you posted on further developments.

Here is the letter in its entirety:

Edward A. Stone
Address redacted
xxx, Georgia 30XXX
Telephone redacted
email redacted

August 22, 2006

VIA FACSIMILE (770)254-2606
ORIGINAL VIA U.S. MAIL
Hon. Paul Poole
Commissioner, First District
Coweta County Board of Commissioners
Coweta County Administration Building
22 East Broad Street
Newnan, Georgia 30263

Re: Coweta Ordinance 46-33(c)

Dear Commissioner Poole,

As you can see from my address, I am your constituent. I had the pleasure of briefly meeting you personally prior to a Board of Commissioners meeting last winter. I apologize in advance for taking your time, but it has come to my attention that Coweta County has an ordinance in effect that violates state law. The purpose of this letter is to ask you, as my commissioner, to take affirmative action to repeal the offensive portion of the ordinance.

The particular ordinance in question is 46-33(c), which purports to prohibit “firearms” “on or about Coweta County recreation facilities, sports fields, or any surrounding areas being property of the county.” I have enclosed a copy of the entire ordinance for your use. Regardless of anyone’s opinion regarding the desirability of such an ordinance, it is prohibited by the laws of the State of Georgia.

I will point you to three sources supporting the contention that this ordinance is pre-empted by state law. They are:

(1) a state statute,

(2) case law, and

(3) an opinion of the Attorney General for the State of Georgia.

The state statute expressly forbids the ordinance at issue. The case law declares that even without such a statute, the county would be without authority to pass such an ordinance because the field of firearms regulation has been preempted by the General Assembly’s extensive regulation on the subject, and the Attorney General opinion reinforces those points in response to a question from a county on the legality of a firearms ordinance.

THE STATUTE

So, in addition to the field of firearms regulation having been completely pre-empted by the extensive state laws on the subject, there is a specific statute declaring that Coweta County cannot “regulate in any manner” the “carrying . . . of firearms.” As if to reinforce the point, the state statute lists three exceptions on which Coweta County can pass ordinances.

These are the only three things Coweta County may regulate pertaining to firearms. As you can see for yourself, an ordinance like section 46-33(c), pertaining to possession or carrying of a firearm, even on Coweta County property, such as in a county park, is not one of the three things listed by the General Assembly as a matter that Coweta County may regulate.

I have enclosed a complete copy of O.C.G.A. § 16-11-173 for your use.

CASE LAW

Even if there were no statute prohibiting the ordinance, the courts in Georgia have recognized that the entire field of firearms regulation has been pre-empted by the General Assembly. Please see Sturm Ruger Co. v. City of Atlanta, 253 Ga. App. 713, 560 S.E.2d 525 (2002), in which the Court of Appeals stated very clearly that the “comprehensive nature of statutes regulating firearms in Georgia” means that “preemption can be inferred.”

The statutes cited relate to the carrying of firearms and where one may carry them, among other things, which is exactly what Coweta County’s ordinance attempts to regulate. The result of preemption is that only the General assembly has the authority to regulate the ownership and possession of firearms. “The practical effect of the preemption doctrine is to preclude all other local or special laws on the same subject.” Sturm Ruger Co. v. City of Atlanta, 253 Ga. App. 713, 718, 560 S.E.2d 525, 530 (2002) (emphasis added).

And a footnote (FN1) in the same opinion commenting on preemption:

(emphasis in bold is mine). When the court begins to discuss the pre-emption statute, it uses the word “also.” “More importantly, the State has also expressly preempted the field of firearms regulation in O.C.G.A. § 16-11-184, which, even before its amendment in 1999, provided ‘that the regulation of firearms is properly an issue of general, state-wide concern’.” The court opinion then quotes the Georgia Constitution:

The Sturm Ruger case makes it quite clear that only the General Assembly may regulate the carrying of firearms. The statute cited in the case is now re-numbered as section 173, and it expressly forbids the sort of ordinance passed by Coweta County, which does not fall into any of the three exceptions listed.

THE ATTORNEY GENERAL OPINION

The Attorney General for the State of Georgia routinely gives legal opinions to local governments on matters of state law. The Attorney General has previously given his opinion to a county attempting to exercise its regulatory power outside one of the three things listed above in the statute. See Attorney General Opinion U98-6. The opinion concludes that the county is without authority to pass an ordinance not relating to one of the three exceptions. The Attorney General opinion on preemption may be reached in its entirety at the following internet address:
http://www.state.ga.us/ago/read.cgi?searchval=firearm&openval=U98-6
The opinion is in response to a question by Muscogee County (Columbus Consolidated Government) about the legality of an ordinance regarding “safe storage” of firearms. The attorney General responded that the ordinance “would be ultra vires . . . because the regulation of firearms, with exceptions not relevant hereto, has been preempted by the General Assembly.” In pertinent part, the opinion states:

(Although the opinion cites to section 184, this is now section 173, as the statute has been re-numbered, but not re-written, since this AG Opinion). The Attorney General Opinion may be summarized by stating that there are only three things a county may regulate regarding firearms. Coweta County Ordinance 46-33(c) does not fall into one of the three statutory exceptions.

Accordingly, I would request that you take action to repeal this law. The State has preempted the field of firearms regulation, both through extensive regulation of the subject and a statute declaring preemption, but Coweta County has an ordinance on the very subject preempted. Please note that it is a harsh ordinance, as the penalty for its violation is six months’ confinement in jail and a $1,000.00 fine.

I do not believe my request to be a difficult one. Essentially, I am asking only that Coweta County comply with the laws of the State of Georgia. That should not be a hard sell to the entire commission.

Commissioner Poole, if you need any assistance from me on this matter, I will be happy to lend it. Otherwise, please contact me to inform me of your intended course of action. I may be reached at the phone number and address above, or at my work phone xxxx, or my email address xxxx. Thank you in advance for your attention to this matter, and I look forward to hearing from you within the next two weeks.

Sincerely,

Edward A. Stone