Thursday, October 10, 2019

Atlanta Botanical Garden Gun Rights Lawsuit - Victory! © 2019 Phillip Evans

Finally, after a long five year fight in the courts, and I won a highly satisfying victory from the Georgia Supreme Court, published Monday, Oct. 7th, 2019.

Atlanta Botanical Garden photo by David Berkowitz used under Creative Commons 2.0 License

For the Atlanta Botanical Garden in particular, one small detail needs to be taken care of by a lower court. Their lease with the City of Atlanta must be ruled on to determine if it is a "usufruct" (to possess and enjoy the fruits thereof), or an "estate for years" (as if one owns the property).

However, the main issue was settled (in a sense). If a private entity leases public property, and if that lease is not an "estate for years", then that private entity cannot ban lawfully carried weapons onto the property.

I stated, "in a sense", because there are an awful lot of leases of public property out there, and I'm wondering if each one must be litigated. I suppose so it would seem. 

But this is not all thorns and weeds. Consider this scenario: A person who is licensed to carry, carries into a public park for an event to which the public is invited, but the event is hosted by a private entity which leases the park for the event. Event security along with local police throw the person out.

That person can sue, and if the lease is found to not grant ownership rights (hint: probably about zero leases of public property which is used for the benefit of the public are "estate for years" type leases), then the event host, their private security, the police, and the local government can be sued and lose big time, with at least the local government being responsible for the legal fees of the plaintiff. Will they risk it?

Where does this public vs. private property argument come from? Back in 2014, the Georgia General Assembly passed HB 60 which was signed into law by then Gov. Deal. 

Four times the word, "private" was inserted before "property" in the weapons law (OCGA 16-11-127), in order to ensure that local governments could not do an end-run around state preemption by leasing public property to a private entity. Looks pretty clear, right?

Apparently neither Judge Gail Tusan of Fulton County Superior Court nor the GA Court of Appeals could grok a clear understanding of this law, but thankfully the highest court in Georgia did. Sad that it took five long years to get here.

But coming back to the Garden. I have read their lease contract, obtained via an open records request with the City of Atlanta. To me, the way it reads (and I'm not a lawyer), is that it is merely a usufruct. 

Too many stipulations by the City make it hard to believe that the Garden holds 30 acres of Atlanta's Piedmont Park as if it were the owner, notwithstanding the 50-year long term of the lease.

One mildly humorous argument made by the Garden's attorneys was that if Georgia Carry and I win, publicly owned stadiums would be awash with guns and no one could do anything about it.

To those who have and who will continue to hand-wring about this, folks, this is a nothing burger. There is already a law in place that takes care of this.

Most large publicly owned stadiums are considered to be "government buildings", and if weapons screening is in place, they may indeed lawfully ban firearms. 

If a public building does not qualify as a "government building", it can become one by being the place where a government entity meets in its official capacity.  

Some supposed gun-rights supporters have said I should have kept my firearm concealed and then there would have been no issue.

Well, what if my cover garment got blown by the wind, or I reached up to point at a tree and my gun became visible? There's nothing wrong with lawful concealed carry, but hiding your firearm doesn't solve everything. Frankly, neither does open carry. 

But you know what? True liberty means not being forced to conceal.

What if I want to openly, honestly, and honorably wear my holstered pistol? If the law allows me to, it is then a public exercise of my rights if I so choose to do so. Don't knock my manner of carry and I won't knock yours. Live and let live, right? This isn't about debating open vs. concealed carry. It's about public and private entities following state law.

I'm looking forward to starting back my family's visits to the Garden. It is one of the most beautiful places to visit in Atlanta. They've done a great job there with their large plant sculptures and other displays. Tell them I sent you.

A huge thanks to Georgia Carry, and to Attorney John R. Monroe for his tireless efforts and long hours in litigating this case, with perhaps a little more work ahead if the Garden does not concede that its contract is a usufruct.

Please consider joining Georgia Carry and become part of a force to be reckoned with when it comes to fighting for our rights in Georgia.

New: Click here to listen to Atty. John R. Monroe give an interview on public radio.


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