This is part five in a continuing series. Sen. Loudermilk introduced a bill yesterday that provides a counterexample to Rep. Hill's bill exempting legislators from the gun laws. SB 188 is a bill that, if passed, would exempt Georgia weapons carry license holders from the places off limits list generally, with exceptions for:
- jail
- prison
- courtrooms
- beyond the security checkpoint at a courthouse
- schools
- nuclear power plants
- a state mental health facility, and
- local government buildings, if they choose to ban firearms.
The last exception is to be accomplished by the local government banning weapons through a local ordinance or resolution and would be an exception to the general rule on express preemption in OCGA 16-11-173 (the statute declaring that only the General Assembly may regulate the carrying and possession of firearms). The bill also restated the substance of OCGA 16-11-127's statement permitting owners and leaseholders to exclude weapons.
This bill is a step in the right direction, but there are some complicated issues to be analyzed. An interesting question, with respect to courthouses, is whether the deputies manning the metal detectors would be required to secure loaded firearms for citizens visiting the courthouse, as they do for law enforcement personnel currently. For example, at the Fulton County courthouse, a law enforcement officer shows his identification, and the sheriff deputy performing courthouse security functions opens a felt lined drawer, that swings out on a hinge. Inside the drawer is a card with a number matching the number on the drawer. The officer places his firearm in the drawer, the deputy locks it, and the officer proceeds inside the courthouse. When leaving, the officer presents his card to the deputy, who opens the drawer. The officer retrieves his loaded firearm, holsters the weapon, and leaves.
This same procedure could be accomplished with Georgia weapons carry license holders showing their license, but since the bill is silent, the more likely result would be that the person with the license would be told to leave the building and put his firearm in his car before returning to the courthouse, where he then prays that his firearm will still be in his vehicle upon his return from the courthouse.
Another issue is with respect to local governments and their buildings. As it is written, SB 188 appears to give local governments the power to restrict carry of weapons in buildings that may not be off limits currently. Not all government-owned or utilized buildings are currently off limits to carrying weapons. OCGA 16-11-127 places a government building off limits only if a government entity is housed there or meets there. If the building is privately owned, then only the portion of the building where the government entity meets is off limits and then only when the meeting is in progress. Local governments are prohibited from enacting more stringent regulation on the carry of firearms by the state's express preemption statute.
Under SB 188, a "government building" that is not currently off limits, such as the branch of a library where the library department of a municipality does not meet and is not housed, could be placed off limits to carriers by the action of an ordinance or even a mere "resolution" by the city or county. Short of extensive legal research into local resolutions, there would be no way for a Georgia license holder to realize that he is violating the law by carrying into a location with respect to which the same license holder was able to carry earlier.
Since this column began by pointing out that SB 188 is a counterexample to Rep. Hill's bill, it is only fair to point out what SB 188 does not do. Although it adds license holders to OCGA 16-11-130, it does not add them to the numbered exempt list in subsection (a), which is where the little old lady at the courthouse who accepts your legal filings is listed along with police officers, persons in the military service of the state or United States, coroners, prosecuting attorneys, judges, and others. The numbered list in subsection (a) is where Rep. Hill hypocritically sought to add former and current legislators, but not you.
SB 188 instead adds a new sub-sub section, (a.1), and therefore the result is very different. The persons in the exempt list are exempt from all of the places listed above in the bullet point list, and, in addition, exempt from carry bans in colleges as well as elementary and secondary schools. Accordingly, the partial exemption being offered by SB 188 is very different from that available to Georgia National Guardsmen, state solicitors general, medical examiners, and clerks of the superior courts. It is very different from HB 394, being proposed for current and former legislators, and HB 60, already passed by the House and pending in the Senate, which would offer the full exemption to retired city court judges.
One final word on SB 188 is that it would be an affirmative defense to prosecution, because OCGA 16-11-130 states, "A prosecution based upon a violation of Code Section 16-11-126 or 16-11-127 need not negative any exemptions." See subsection (d). What that basically means in non-lawyer language is that a person being arrested for carrying in a location off limits, should SB 188 pass, can raise this defense to a jury at trial. An arresting officer has no duty even to inquire into the affirmative defense before making an arrest. See Patterson v. State, 196 Ga. App. 754 (1990) (probable cause exists to arrest before inquiring into any affirmative defenses). The Georgia General Assembly removed all of the affirmative defenses with respect to firearms carry laws when it passed SB 308 in 2010, to keep Georgia license holders from being harassed and arrested without legal recourse (for example, the charge involved in the Patterson case was repealed, and possession of a license in places like MARTA was made an element of the offense, rather than an affirmative defense).
In summary, SB 188 is a good bill that moves Georgia law in the correct direction, but it may need some changes before passage.
This is part 5 in a continuing series.
Part 1, HB 60 The distance between citizens and their government is growing larger is available by clicking on the link, or clicking here. <---- UPDATE: HB 60 quickly passed the House and is in the Senate. Contact your Senator to ask whether your life is less valuable than a retired city court judge, or whether a woman with a violent stalker is at less risk than a retired city court judge.
Part 2, Three bills pending to restore the right to bear arms in church, is available here.
Part 3, HB 29 Georgia Campus Carry Act of 2013, is available here.
Part four, HB 394 The Hypocrite Act of 2013, is available here.
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