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HB 60 Stirs Controversy Among Some in Law Enforcement

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Newton County Sheriff Ezell Brown is worried about HB 60 because it bars his deputies from detaining a person in Newton County absent probable cause or reasonable suspicion that such person has committed a crime. Sheriff Brown told CovNews that HB 60’s bar on detaining a person with a firearm merely to check his license “places them [his deputies] in a potential state of confusion, including concerns for personal and public safety when encountering an armed individual in the performance of one’s duty.”

HB 60 becomes law on July 1. A new statute, OCGA 16-11-137, will clarify that the current law’s requirement that a license be kept in one’s possession means “immediate possession,” but will provide in subsection (b) that:

“A person carrying a weapon shall not be subject to detention for the sole purpose of investigating whether such person has a weapons carry license.”

Note the words “sole purpose.” In other words, this provision does not mean that a law enforcement officer cannot ask a person whether he is licensed, and it does not mean that the officer cannot detain a person if the officer has constitutional grounds to do so. It means only that carrying a gun does not operate as a trigger for arbitrary harassment and detention by any and every police officer that encounters a person peacefully going about his daily business while armed.

When this author was in the police academy new police officers were taught that in order to be justified in detaining a person for criminal investigation, a police officer must, at a minimum, have an articulable reasonable suspicion that the person he is detaining is committing or is about to commit a crime. This is a lower level of justification than probable cause, which is the standard to meet justifying an arrest, but it is a higher standard than a mere hunch or suspicion on the officer’s part. In plain English, the officer’s suspicion of criminal activity must be reasonable, and it must be based on specific facts and circumstances that the officer can articulate.

Merely carrying a firearm has never been, in and of itself, reasonable suspicion of any crime. Georgia’s new law merely recognizes this fact and codifies it into statutory law. In short, this new law should not change anything about the way Sheriff Ezell’s deputies go about enforcing the law, as they never should have been detaining anybody for the sole purpose of investigating whether such person has a weapons carry license. This is basic Fourth Amendment search and seizure law taught in every police academy criminal procedure class in Georgia.

A quick analogy will help illustrate the point. Georgia law requires all drivers to possess a driver’s license and even requires presenting it to law enforcement officers on demand. Sheriff Ezell’s deputies cannot, however, drive around on the highways and arbitrarily activate their blue lights to stop random cars in Newton County for the sole purpose of investigating whether the drivers are properly licensed.

The standard is no different for weapons carry licenses. As the United States Supreme court has instructed in Florida v. J.L., 529 US 299 (2000), there is no “firearm exception” to the Fourth Amendment. Criminal procedure is still taught to police officers. Oconee County Chief Deputy Lee Weems, literally the guy who “wrote the book” on search and seizure for Peace Officer Standards and Training (POST is the institution responsible for police officer training in Georgia) put it this way on WGAU last week when he was asked whether HB 60 would prevent checking weapons carry licenses, “Well, that has been what the courts have ruled for years. We have to have reasonable articulable suspicion to detain someone and begin investigating him. . . . There is a difference between the guy hiding in the bush outside of an ATM and the guy that’s buying bread in Publix and carrying a pistol. As a cop, if you can’t tell the difference between those two guys, you need to get into another line of work.”

The bottom line is that HB 60 does not actually change an officer’s authority to detain a person for the sole purpose of checking his license. Police officers in Georgia have never had the lawful power to do so unless they possess knowledge of facts that would lead a reasonable officer to conclude that criminal activity is afoot. It is a constitutional requirement. HB 60 merely codifies what is already current law and thankfully brings this issue to the attention of some in law enforcement, like Sheriff Ezell Brown, who seemed to be unaware that constitutional rights apply even to the holders of a Georgia Weapons Carry License.

This is the first in a continuing series of articles explaining provisions contained in the newly signed bills, HB 60 and HB 826, both of which go into effect July 1. Be sure to subscribe if you do not wish to miss any of these important updates.

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