CCA11 Decision: GeorgiaCarry.Org v. Georgia - LOSS!

Al Norris · Jul 20, 2012

Item #46 on Mark's list of cases:

At CCA11 today, the panel flat out rejected the appeals from GeorgiaCarry.Org that challenged a State law that banned carry in churches. See: Federal Appeals Court upholds Georgia ban on guns in places of worship

The Second Amendment argument that the preacher and GeorgiaCarry.org made, Tjoflat wrote, asked the court "to destroy one cornerstone of liberty — the right to enjoy one's private property — in order to expand another — the right to bear arms. This we will not do."

John Monroe, the attorney for GeorgiaCarry.org, said he did not know yet if the group would continue its challenge. But, he said, the decision referenced an argument the group did not make.

"The state can't prohibit anyone form carrying a gun in church," Monroe said. "We never argued that a person should be able to carry against the church's wishes."

This decision flies in the face (as did the districts grant of the defendants MTD) of what was really asked. As a matter of property rights, it should be up to the churches themselves, whether or not they will permit carry on their property. The State has no compelling reason to interfere with such internal administration of a religious order.

All the case filings can be viewed here.

press1280 · Jul 21, 2012

This stinks to high heaven. The state is banning otherwise legal conduct in a PRIVATE building, a religious one no less.
Is it possible this case should have been brought not under a 2A challenge, but under a private property rights challenge?
Also, the panel appears to have completely missed the argument. Does this help chances for SCOTUS/en banc review?

esqappellate · Jul 22, 2012

press1280 said:
This stinks to high heaven. The state is banning otherwise legal conduct in a PRIVATE building, a religious one no less.
Is it possible this case should have been brought not under a 2A challenge, but under a private property rights challenge?
Also, the panel appears to have completely missed the argument. Does this help chances for SCOTUS/en banc review?

This is the essence of the court's opinion and the opinion is expressly limited to this holding:

"We conclude that the Second Amendment does not give an individual a right to carry a firearm on a place of worship’s premises against the owner’s wishes because such right did not pre-exist the Amendment’s adoption."

In essence, you don't have a 2A right to carry on private property against the owner's wishes. I can live with that result. We are lucky that the opinion is that limited. Count your blessings, this could have been much, much worse. If counsel is smart, they will let this case go.

Kilroy · Jul 22, 2012

This shouldn't have been a 2A issue. It should have been framed as a private property rights issue. Maybe even a religious rights issue. We know that the disciples of Jesus were packing heat, the state shouldn't be able to forbid his followers from doing the same.

MDFF2008 · Jul 22, 2012

I agree the court doesn't seem to have addressed the issue.

I don't care if a church bans carry, as a private organization they are free to do that.

I don't see how the government has a right to do a blanket ban though.

esqappellate · Jul 22, 2012

gprimr1 said:
I agree the court doesn't seem to have addressed the issue.

I don't care if a church bans carry, as a private organization they are free to do that.

I don't see how the government has a right to do a blanket ban though.

Take a close look at that statute's text set forth in the opinion. It required the weapon carrier to approach the owner and ask for permission and then criminalize a refusal to comply (or ask). It left the carrying up to the owner (not just a church, but the plaintiffs wanted to carry in a church). That enabled the court to focus the owner's rights. A odd statute for sure, but it wasn't a blanket ban.

Al Norris · Jul 22, 2012

esqappellate said:
This is the essence of the court's opinion and the opinion is expressly limited to this holding:

"We conclude that the Second Amendment does not give an individual a right to carry a firearm on a place of worship’s premises against the owner’s wishes because such right did not pre-exist the Amendment’s adoption."

In essence, you don't have a 2A right to carry on private property against the owner's wishes. I can live with that result. We are lucky that the opinion is that limited. Count your blessings, this could have been much, much worse. If counsel is smart, they will let this case go.

However, that is not the argument.

Take a close look at that statute's text set forth in the opinion. It required the weapon carrier to approach the owner and ask for permission and then criminalize a refusal to comply (or ask). It left the carrying up to the owner (not just a church, but the plaintiffs wanted to carry in a church). That enabled the court to focus the owner's rights. A odd statute for sure, but it wasn't a blanket ban.

It does not square with the text of the statute:

(b) A person shall be guilty of carrying a weapon or long gun in an unauthorized location and punished as for a misdemeanor when he or she carries a weapon or long gun while:

(4) In a place of worship;
(d) Subsection (b) of this Code section shall not apply:

(2) To a license holder who approaches security or management personnel upon arrival at a location described in subsection (b) of this Code section and notifies such security or management personnel of the presence of the weapon or long gun and explicitly follows the security or management personnel’s direction for removing, securing, storing, or temporarily surrendering such weapon or long gun[.]

The license holder must approach the property manager and remove and secure his firearm. The license holder is banned from carrying the firearm at a place of worship by statute, whether or not the property manager allows him to carry or not.

The State by statute is usurping the discretion of a religious organizations right to administer their church property in direct violation of 1st amendment protections.

That was the argument.

Having said this, I always thought the inclusion of a 2A claim was weak and diluted the effect of the real claim.

esqappellate · Jul 22, 2012

Al Norris said:
However, that is not the argument.

It does not square with the text of the statute:

The license holder must approach the property manager and remove and secure his firearm. The license holder is banned from carrying the firearm at a place of worship by statute, whether or not the property manager allows him to carry or not.

The State by statute is usurping the discretion of a religious organizations right to administer their church property in direct violation of 1st amendment protections.

That was the argument.

Having said this, I always thought the inclusion of a 2A claim was weak and diluted the effect of the real claim.

I read that language as the court did: If the directions were that you could keep it then the prohibition in subpart b didn't apply if you followed the directions. I do see the ambiguity though.

Maestro Pistolero · Jul 23, 2012

It doesn't seem as if the language allows permission to be granted, only direction given as to how the church member must be disarmed. I suppose if the direction given is to retain the weapon, then the attendee can be said to have complied with the instructions. But it's definitely ambiguous when overlaid with the court decision.

Even in the case of a church member having blanket, ongoing permission from security and/or management personnel, the attendee must have a new conversation renewing said permission each time he/she arrives on the property according to the law. Weird.

press1280 · Jul 23, 2012

From the District Court decision: Plaintiffs do not argue, however, that they possess a constitutional right to carry a firearm onto
private property against the wishes of the owner or controller of the property.

Yet the 11th has based their decision upon this. It seems, at a minimum, that the statute is vague. I'm still reading through but I never see where the court says that the church can simply give permission(blanket or specific) for someone to carry while in church. If the state had simply said the church can do this, then there would be no issue. But the state it seems didn't argue this-instead using public safety and "only in the home" arguments.

esqappellate · Jul 23, 2012

press1280 said:
From the District Court decision: Plaintiffs do not argue, however, that they possess a constitutional right to carry a firearm onto
private property against the wishes of the owner or controller of the property.

Yet the 11th has based their decision upon this. It seems, at a minimum, that the statute is vague. I'm still reading through but I never see where the court says that the church can simply give permission(blanket or specific) for someone to carry while in church. If the state had simply said the church can do this, then there would be no issue. But the state it seems didn't argue this-instead using public safety and "only in the home" arguments.

I find it very telling that the Court did not even address the State's argument but instead went off to base its opinion and holding on the rights of the property owner. Regardless of how it was argued (by either side) that makes the court's opinion very limited in its impact on the 2A. I agree that the court never addressed whether a blanket permission is appropriate, but there is an excellent argument that the consent of the security personnel is sufficient to negate the ban otherwise imposed by subsection (b). For example, (b) is expressly negated under the statute if the carrier complies with the security personnels' direction to the CCW carrier in the manner of "storage" If the security personnel told the carrier to "store" the piece in his holster or told the OC person to conceal it, that should be sufficient. You just gotta ask and then comply. The court's rationale essentially can be read as imposing no limits at all other than the consent of the property owner. From the standpoint of precedent, this is NOT a bad result.

Bob A · Jul 23, 2012

I see the point Esquappellate is making, though it is just a bit labored rather than being explicitly spelled out - at least that's how it appears to a non-legal mind.

The operative point is, how will it be read and interpreted by the legal mind of a public prosecutor?

press1280 · Jul 23, 2012

Bob A said:
I see the point Esquappellate is making, though it is just a bit labored rather than being explicitly spelled out - at least that's how it appears to a non-legal mind.

The operative point is, how will it be read and interpreted by the legal mind of a public prosecutor?

Probably twisted into "only in the home".

I'm still not buying this. The pastor AND the church are plaintiffs. If it was as simple as Esquappellate says, this should have been an easy decision stating, YES, if the church says it's OK to carry(concealed or openly), then YES, the pastor and other licensed carriers are good to go, period.
Instead, the statute is simply repeated by the court, and most people reading the words," removing, securing, storing, or temporarily surrendering such weapon or long gun" would have to believe this DOES NOT mean carry(of a loaded, operational firearm). Look at how the statute for no carrying in a bar is different:
(6) In a bar, unless the owner of the bar permits the carrying of weapons or long guns by license holders;
There's obviously a reason they worded it differently. The court, unfortunately, didn't seem to recognize it. If churches were worded like bars were, there would be no argument.

esqappellate · Jul 23, 2012

press1280 said:
Probably twisted into "only in the home".

I'm still not buying this. The pastor AND the church are plaintiffs. If it was as simple as Esquappellate says, this should have been an easy decision stating, YES, if the church says it's OK to carry(concealed or openly), then YES, the pastor and other licensed carriers are good to go, period.
Instead, the statute is simply repeated by the court, and most people reading the words," removing, securing, storing, or temporarily surrendering such weapon or long gun" would have to believe this DOES NOT mean carry(of a loaded, operational firearm). Look at how the statute for no carrying in a bar is different:
(6) In a bar, unless the owner of the bar permits the carrying of weapons or long guns by license holders;
There's obviously a reason they worded it differently. The court, unfortunately, didn't seem to recognize it. If churches were worded like bars were, there would be no argument.

I don't blame you a bit. It is a weird statute. Still, it almost doesn't matter (for those of us outside of GA), as the court's opinion and rationale is very limited. I am happy with the rationale. As to what the GA prosecutor would do, who knows, as every prosecutor is different. Still, it is hard to believe that a prosecutor would take his time with a case where the CCW permit holder complied with the statute by first securing his piece and getting express direction from security and then fully complying with those directions (whatever they might be). The CCW would almost become an agent of the church if the church told him to hold onto his piece.

press1280 · Jul 23, 2012

I would definitely concede this is NOT a good 2A vehicle. Just like Gura getting pestered by the 7th Circuit over the issue of bar carry, some issues can be dealt with other ways than a 2A lawsuit.

HT4 · Jul 23, 2012

THis should have been an establishment clause case IMO.

Gray Peterson · Jul 24, 2012

The argument was presented directly. The pastor of the church wanted to carry. Under state law, he couldn't.

esqappellate · Jul 24, 2012

Gray Peterson said:
The argument was presented directly. The pastor of the church wanted to carry. Under state law, he couldn't.

But, I don't recall that the pastor had directly complied with the statute, e.g., asked "security" (whatever that is) and then complied with directions. That would be an as applied challenge and the court refused to consider as applied challenge. And the court expressly rejected the argument that the statute was a flat ban. See footnote 36 which states:

"The plain language of the Carry Law belies any argument that all firearms are per se
prohibited from a place of worship; quite simply, this is not the “ban” that Plaintiffs make it out
to be."
The real essence of the opinion is that that the statute is constitutional in at least some of its applications and thus is NOT facially invalid.

"Enforcing the Carry Law against a license holder who carries a firearm on private property against the
owner’s instructions would therefore be constitutional. Plaintiffs’ facial challenge fails because the Carry Law is capable of numerous constitutional applications. See Salerno, 481 U.S. at 745, 107 S. Ct. at 2100." (slip op. at 40).

That leaves open an "as applied" challenge which again the court expressly refused to consider here. See page 28 footnote 34.

Bob A · Jul 24, 2012

Sounds like the pastor needs approval from his Deity. Are stone tablets or burning bushes admissible in court?

esqappellate · Jul 24, 2012

Bob A said:
Sounds like the pastor needs approval from his Deity. Are stone tablets or burning bushes admissible in court?

CCA11 Decision: GeorgiaCarry.Org v. Georgia - LOSS!

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