Archive for the 'News' Category

GCO Vice President John Monroe answers questions on GA HB435

Thursday, October 24th, 2019

GCO has received many inquiries from members of other organizations, wanting to know why we oppose HB 435 (the Red Flag Law Bill). They say their organizations just oppose the bill without providing any analysis they can use to discuss the bill. So, we are providing the following analysis as a public service.

HB 435 provides a mechanism for someone (the “petitioner”) to petition a superior court to seize another person’s (the “respondent’s”) firearms and ammunition. That should be the first “red flag.” The respondent’s property is being taken without just compensation, in violation of the 5th Amendment.

The petitioner can be any law enforcement officer (“LEO”) or anyone who ever lived with the respondent in the same dwelling. This means college roommates and other casual acquaintances that once shared housing can file petitions. The petition can be filed in the county where the respondent resides or in the county where the petitioner’s law enforcement agency is located. In other words, the venue does not have to be in the county of the respondent’s residence, in violation of the state constitutional provision requiring that a person be sued in his own county. The petitioner can be in Valdosta and the respondent can be in Blue Ridge, and the petitioner can file in Lowndes County (Valdosta). Guess who has to drive five hours to defend himself?

The petitioner has to swear under oath that the respondent poses a significant danger of causing personal injury to himself or others by possessing a firearm. The petitioner has to identify the quantities, types, and locations of firearms and ammunition the respondent possesses (but there is no downside to the petitioner if the petitioner is wrong as long as the petitioner is not lying).

The petitioner has to attempt to notify a person who lived or formerly lived with the respondent, but has no obligation to attempt to notify the respondent himself. A hearing must be held within 14 days of filing the petition, so the respondent has only two weeks to find and hire a lawyer (perhaps hundreds of miles away), meet with the lawyer, prepare a defense, arrange for witnesses, and show up and put on the defense.

In the meantime, the petitioner could have requested an “ex parte” order, meaning the court could issue a “risk protection order” without notice to respondent. The standard for the ex parte order is very low, there only has to be “reasonable cause” to believe the respondent poses a significant danger to himself and others. This standard is below even “probable cause,” which at least would require that it is more likely than not that the respondent poses a danger. If the judge finds reasonable cause, the judge is required to issue an ex parte order.

An ex parte order requires the respondent to surrender all firearms and ammunition to a law enforcement agency. The agency can seek a search warrant if it wants to. The respondent has no opportunity to make alternative arrangements. The property is seized. After seizure, the respondent can request that the property be transferred to a third party.

At the 14-day hearing, the standard becomes higher. There must be clear and convincing proof that respondent poses a significant danger to himself or others. The respondent has no opportunity for discovery or any ability to know in advance what the evidence against him is. He has no meaningful opportunity to prepare for the hearing.

A respondent may request, one time, a hearing to vacate an order. The hearing is held 14-30 days after petitioner is served (i.e., the petitioner gets more notice for a hearing to vacate than the respondent gets for the initial hearing when he does not even know there is a case against him). At the hearing to vacate, the burden is on the respondent to prove by clear and convincing evidence that he does not pose a danger to himself or others (i.e., he must prove a negative).

A risk protection order can last up to 12 months, but it may be extended indefinitely with successive 12-month orders.

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GCO Wins Appeal Against Chatham Probate Judge

Thursday, October 24th, 2019

The Georgia Court of Appeals has ruled in GCO’s favor and reversed a superior court ruling that a probate judge may not be sued in his individual capacity for a declaratory judgment. In the case, the judge of the Chatham County Probate Court was sued because he was taking months to issue GWLs. The court’s opinion may be found here.

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GCO Challenges Falcons Gun Ban

Thursday, October 24th, 2019

In the wake of GCO’s win at the Supreme Court of Georgia against the Atlanta Botanical Garden, GCO has challenged the Atlanta Falcons over its ban on carrying guns in Mercedes-Benz Stadium. A copy of the letter to Falcons General Counsel Mike Egan can be found here.

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Court of Appeals Remands Campus Carry Case

Thursday, October 10th, 2019

The Georgia Court of Appeals has remanded the “campus carry” case to the Superior Court of Fulton County without a decision on the merits. In the case, a group of UGA professors sued former Governor Deal in his individual capacity to block “enforcement” of the law that partially decriminalizes campus carry. The superior court dismissed the case and the professors appealed. GCO filed an amicus curiae brief at the Court of Appeals. While the case was pending, former Gov. Deal’s term ended and Gov. Kemp took office. The professors attempted to substitute Gov. Kemp for Gov. Deal as an appellee by just providing notice of the substitution. The court of appeals has concluded that further proceedings are necessary to determine if and how such a substitution can take place when a government official is sued in his individual capacity. A copy of the Court’s order can be found here.

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Supreme Court Restores Botanical Garden Case

Tuesday, October 8th, 2019

Today, the Supreme Court of Georgia restored (for the second time) GCO’s lawsuit against the Atlanta Botanical Garden. The case, filed in 2014, challenges the policy of the Garden of disallowing GWL holders from carrying while at the Garden. State law prohibits lessees of public property from banning weapons. A copy of the decision may be found here.

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Statement on MCDV and Red Flag Laws

Thursday, August 8th, 2019

There has been a lot of discussion in recent months about passing so-called “red flag” laws or misdemeanor crime of domestic violence (“MCDV”) laws in Georgia. This article will examine the benefits or lack thereof of both.

MCDV Laws

Congress passed a MCDV law in 1996, making it generally illegal for anyone to possess a firearm or ammunition who had been convicted of a MCDV. Exactly what crimes constitute MCDVs and the extent of the ban are beyond the scope of this article, which focuses on passing state-level laws in Georgia. We will begin, however, with some of the flaws in the federal law.

The general public has a long-standing notion that misdemeanors are relatively minor crimes and felonies are relatively serious. Conviction of a misdemeanor generally has short-lived ramifications and after the sentence is served there is little impact on the person’s life. Felony convictions, on the other hand, are understood to have long-term impacts on life even after the (relatively longer) sentence is served. The federal MCDV law thus has the ironic provision that a person is too dangerous to possess a firearm but not too dangerous to be part of our free society.

It comes as a surprise to many, therefore, to learn that a MCDV conviction can result in permanent loss of a fundamental constitutional right, the right to keep and bear arms (“RKBA”). It is even more of a shock to learn that the battery conviction in 1995, before the MCDV law was even passed, has that result. Fundamental notions of fairness also lead a person to believe that a change in charge from battery – domestic violence to simple battery would remove the possible RKBA loss. That belief is incorrect. Under the federal MCDV law, it does not matter what the state calls the crime. If it meets the federal MCDV definition, it counts as a MCDV whether the state calls it domestic violence or jaywalking.

Another surprise to many is that, despite the word “violence” in the name, no violence is actually necessary. The Supreme Court of the United States has ruled that it is sufficient if there is “unwanted touching,” the common law definition of battery. Theoretically, a hand on a shoulder, when unwanted, is sufficient to convict for a MCDV.

The RKBA ban for a MCDV violation is permanent (i.e., for life). There is a provision in the MCDV law to remove the ban, but it requires some odd participation by the state of conviction. First, the state has to have in place some loss of a civil right as a result of the MCDV. The civil rights that can be lost generally are the right to sit on a jury, to vote, to hold public office, and RKBA. In Georgia, no civil rights are lost as a result of a MCDV conviction (Georgia following the majority of states in believing that misdemeanors should not result in loss of civil rights).

If, for example, Georgia law contained a provision that a person loses the right to hold public office upon conviction of a MCDV, then also contained a provision for restoration of the right, the federal RKBA would also be restored upon such state right restoration. To date, no Georgia legislator has proposed that he give up his right to hold public office at the same time you lose your RKBA.

This brings us to the potential enactment of a state-level MCDV law in Georgia. Such laws have been proposed for a couple sessions now, by both Democrats and Republicans. Rep. (now Sen.) Brian Strickland (R. – McDonough) and Sen. Jen Jordan (D. – Atlanta) are two current legislators who have introduced such bills. No bills have been passed by either house of the legislature. There are several reasons why they are a bad idea.

First, MCDV bills serve no purpose. There is not a single legitimate study showing that domestic violence improved in the 20-plus years since the federal MCDV bill was passed. If the bills do not do anything to reduce domestic violence, that begs the question, what is the purpose of the bills? What they really do is just deprive people of fundamental constitutional rights with no legitimate goal achieved. They are feel-good measures that make their sponsors look like the sponsors are trying to do something to curb domestic violence.

Second, state-level MCDV bills mostly mirror the federal law. That is, they do nothing to change the landscape, while chewing up limited legislative resources in the process.

Third, it is questionable whether a state-level MCDV bill would pass muster under Georgia’s RKBA, which is not co-extensive with the federal RKBA.

In reality, firearm homicides are not significant public safety issues. More Georgians die every year by suicide, auto accidents, and medical malpractice than by firearm homicides. If no single legislator thinks domestic violence is serious enough to risk his or her own right to hold public office, it is not serious enough to take away the public’s primary means of self-defense.

Red Flag Laws

Red flag laws have been passed in 17 states and the District of Columbia. They go by different names, but the basic premise is that a person’s family members or the police may petition a court to seize the person’s firearms on the grounds that the person is, at least temporarily, a danger.

Note the similarity in illogic with MCDV laws. A person is dangerous. Very dangerous. So dangerous that he cannot be trusted with firearms to the point that society should deprive him of his fundamental constitutional right to protect himself. So dangerous that his life is worth less than everyone else in the general public who retains the RKBA. But, not so dangerous that he should be confined.

Somehow, the logic goes, he is too dangerous to have a firearm, but he can be trusted with a motor vehicle (responsible for several times more homicides per year than firearms). He also can be trusted with kitchen knives, swords, archery equipment, fireworks, gunpowder, gasoline, kerosene, diesel fuel, ammonium nitrate, fuel oil, and a whole host of other substances and devices that are inherently dangerous or easily adapted to cause destruction of property and bodily injury.

Aside from the abject uselessness of such laws, they are unfair and unconstitutional. They result in the seizure of personal property without compensation. The person generally gets little notice of the proceeding and little opportunity to present a defense. There generally is no discovery, so that the person does not know what evidence will be brought against him. There generally is no right to a jury trial. There is, in sum, generally no right to due process.

The sanction of seizure of person property is harsh, and unheard of in any other non-criminal context. When a person is determined to be unfit to operate a motor vehicle, does the sheriff go seize all his cars? Of course not, and no one would think for a moment that such a result is just. The person can, after all, just be told he may not drive. He is never told he may not possess a motor vehicle. He is free to keep his car and get his friends, neighbors, or relatives to drive him where he needs to go in his own car. If the same person is found unfit to shoot a gun (what kind of evidence would be needed for this conclusion?), why must his guns be seized? Cannot he get his same friends, neighbors, or relatives to go out with him or stay in with him, protecting him with his own guns?’

If, however, a person is validly determined to be too dangerous to possess firearms at all (but not so dangerous as to make him give up paring vegetables), there simply is no basis for the wholesale seizure of his guns. The Supreme Court of the United States has ruled that a person who forfeits his RKBA by, for example, conviction of a felony, is entitled nonetheless to the economic value of his property. Outright seizure of his firearms is unconstitutional if it is not part of his sentence. He retains the right to sell or dispose of his firearms as he sees fit, provided it is done in a fashion where he is not able to possess or re-possess them.

There is no logical reason to believe that victims of red flag laws should not have the same right, and that is if the due process and Second Amendment violations can be worked out.

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Constitutional Carry

Tuesday, February 12th, 2019

“Constitutional carry” has been discussed quite a bit recently in the news and on social media.  GCO also receives occasional inquiries about.  GCO is therefore posting this article for the benefit of its members and readers.

A discussion of constitutional carry should begin with a definition of what it is.  There is not really a commonly accepted definition, even by those who advocate for it.  Many use the phrase to mean carrying a weapon without the need for a permit, which might more aptly be called “permitless carry.”  Permitless carry focuses on  the lack of a permit, regardless of any restrictions that might exist on where or how one can carry.

Others use the phrase to mean carrying whenever and wherever desired, so that the emphasis is on lack of restrictions, regardless of whether a permit is required.  This might more aptly be called “unrestricted carry.”

Still others use the phrase to mean a combination of both permitless and unrestricted carry.

Probably the phrase is used most often in Georgia to refer to permitless carry, and the current HB 2 sponsored by Rep. Matt Gurtler (R-Tiger), which Rep. Gurtler calls “constitutional carry,” is permitless carry.  The bill retains all present off limits locations.  For that reason, this article will use permitless carry as the definition of constitutional carry.

The name “constitutional carry” derives from a theory that the government may not require a permit to exercise a constitutional right.  That theory is no doubt attractive to many in the Second Amendment context, but it has very little legal support.  It is well established that the government may require a permit to exercise a constitutional right, even a fundamental one.  Every state in the union requires a license to marry, even though it is well known that adults have a constitutional right to marry.  The Supreme Court recently re-affirmed that right in Obergefell, the “gay marriage” case.  The court did not, however, say that states must allow gays to marry without a license.  It said the states may not deny a marriage license on account of being gay.  That is, the licensing regime is fine as long as licenses are readily available.  Similarly, governments may condition parades, demonstrations, and rallies, well-recognized First Amendment activities, on first obtaining a license.

Thus, calling permitless carry “constitutional carry” is at best a misnomer, at worst a public relations ploy designed to convince constituencies that permitless carry is a constitutional right.  It is not.

Nevertheless, permitless carry is attractive to many gun owners.  GCO has been advocating for permitless carry since its inception.  It became apparent early on, however, that the biggest issue in Georgia was not that a license was required to carry.  The biggest issue was that Georgia had so many places off limits.  Arguably, when GCO began, Georgia had more places off limits than any other state.  It did not matter whether a license was required or not.  Even those with licenses were disarmed almost everywhere they went.

GCO therefore concluded that, while continuing to advocate for permitless carry, it made more sense to put GCO’s limited resources into trying to eliminate off limits locations.  GCO has been very successful in that endeavor.  Perhaps the single most important change GCO’s efforts have brought about was the repeal of the “public gathering” law, which made it a crime to take a firearm “to or while at a public gathering.”  That law made it all but impossible for a law-abiding citizen to carry a firearm in any meaningful way.  In addition to eliminating the public gathering law, GCO has successfully lobbied to eliminate from the off limits locations restaurants that serve alcohol (at first one could carry but not consume, but then GCO removed that restriction as well), bars, churches if the church allows it, government buildings, polling places when elections are not taking place, parking lots of off limits locations, public transportation including MARTA trains and stations and airport terminals, college campuses, and the 1000-foot school zone surrounding school property.  GCO also was successful in eliminating the requirement to carry in a holster, repealing the crime against carrying a concealed weapon, and carrying knives.

In addition to the drastic reductions in off limits locations, GCO undertook to improve the licensing process, since it was apparent that permitless carry was not to be a reality soon. GCO has reduced the time to issue weapons carry licenses, required issuance to eligible applicants, added a private right of action against probate judges who fail to issue licenses, expanded statewide preemption, added a private right of action for preemption violations, and provided for damages to those aggrieved by preemption violations.

For those who desire permitless carry, GCO’s efforts also have resulted in it now being legal to carry knives with blades under 12” without a permit, as well as certain handguns.

Despite some reports to the contrary by Patrick Parsons and Georgia Gun Owners (who have never successfully introduced and passed any bills), GCO continues to support permitless carry, including the current bill as of this writing, HB 2.  It is important to note, however, that HB 2 does nothing to eliminate places off limits for carrying firearms.  Because the vast majority of GCO’s members have weapons carry licenses, eliminating the need for those licenses without expanding carry rights otherwise would be a bit of a hollow victory.  Most members would retain a license for reciprocity purposes, and because the license acts as an alternative to the NICS check when buying a gun from a gun store.

Each state that has enacted permitless carry has retained its off limits locations and other restrictions, most of which leave weapons carriers with more restrictions in those states than weapons carry licensees in Georgia.  Consider the following examples:

AK:  Their permitless carry bill in actuality was just a repeal of their concealed carry law.  GA already has repealed its concealed carry law, so we have that.  Instead, AK created a requirement to notify law enforcement that you are armed if you encounter an officer and allow him to secure it during the encounter.  It also requires you to obtain affirmative permission from a private property owner.

AZ:  Also just repealed its concealed carry law.  A permit is still required to carry in a restaurant that serves alcohol, so AZ has not really gone permitless.

AR:  Still a crime to carry concealed without a permit.  Their “permitless carry” bill only applied to open carry.

KS:  Places off limits with or without a permit:  government-owned medical facilities, indigent health clinics, hospital authority properties, public buildings, while under the influence, private property if posted,

ME:  Must inform law enforcement, license required in state and federal parks, no carrying in restaurants that sell alcohol or in any property that is posted,

MS:  A permit is still required for some forms of carry (e.g., particular hidden body locations).  Thus, permits are still part of the regulatory regime.  Cannot carry in restaurants that sell alcohol, in unsecured areas of airports, in churches, in private property that is posted, or while in a parade.

MO:  Local governments are not covered by preemption for open carry, so they have the power to require a permit.  Cannot carry in government buildings, restaurants that sell alcohol, colleges, child care facilities, sports arenas, hospitals.

ND:  In addition to the residency requirement (of at least 1 year), carriers must have a state-issued ID for at least one year, must notify law enforcement on contact.  Non-residents must have license to open carry.  And the foregoing only applies to concealed carry.  A license is required for open carry of a loaded handgun.  Must produce license on demand of law enforcement.  Cannot carry in restaurants that sell alcohol, at public gatherings.

SD:  Cannot carry in bars.

VT:  Cannot carry in govt buildings, certain parks, residential treatment programs,

WV:  Cannot carry in municipal buildings if local authority prohibits it; must have permit to have in parking lot of government buildings;

While GCO believes permitless carry is a laudable goal, it will continue to prioritize reducing the everyday burdens of carry firearms, rather than eliminating the need for a license that most members already have (and will continue to have for purposes of reciprocity and NICS alternative).

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Chatham Judge Seeks Sanctions Against GCO

Sunday, January 6th, 2019

Chatham County Probate Judge Thomas Bordeaux has filed a motion with the Court of Appeals of Georgia, seeking sanctions against GCO for filing a “frivolous appeal.” The motion apparently was filed in retribution against GCO because GCO sought to force Bordeaux to follow Georgia law in issuing GWLs in the time required by statute. The motion comes on the heels of Bordeaux’s motion in the Superior Court of Chatham County for an award of attorney’s fees against GCO for suing Bordeaux in the first place. The motion, and GCO’s response, can be found here.

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Path Cleared for Corps Decision to Be Vacated

Monday, July 2nd, 2018

The U.S. Court of Appeals for the 11th Circuit has cleared the way for the U.S. District Court for the Northern District of Georgia to vacate its earlier judgment against GCO in the case against the U.S. Army Corps of Engineers. GCO had brought the case to force the Corps to grant permission to GCO members to carry loaded firearms on Corps property. The district court ruled in favor of the Corps and against GCO. While an appeal was pending, the Corps began issuing permission, effectively mooting the case. The Court of Appeals issued an order to remand the case to the district court for the purpose of allowing the district court to vacate its ruling against GCO. Once the judgment is vacated, there will be no adverse ruling against GCO, and GCO will be free to reinstate the case if the Corps ever stops issuing permission to GWL holders. The court orders and other documents may be found here.

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GeorgiaCarry.Org Endorses Brian Kemp for Governor

Friday, June 8th, 2018

​GeorgiaCarry.Org proudly endorses Brian Kemp for governor. We believe that Brian, as a lifelong supporter of our Second Amendment rights and a Life Member of GeorgiaCarry.Org will protect and defend the Constitution of the State of Georgia and the United States on all rights, not just a few of them.

He strongly believes in the preservation and restoration of our Second Amendment rights and the protection of our due process rights enumerated in the Constitution. Our due process rights are also under attack along with our right to keep and bear arms. Many states have passed legislation diminishing due process rights and we have had several bills introduced here in GA to do the same. Without due process, we have no rights at all.

Therefore, we are endorsing Brian Kemp to defend and protect those rights as Governor of the Great State of Georgia!

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