Proposed Deterrents to Boating Under the Influence

Georgia’s New Weapons Laws
2014 Legislative Session
Presented by:
J. Dale Mann
[[email protected]]
Special acknowledgement to the
Georgia Prosecuting Attorneys’
Charles A. Spahos, Executive Director
Prosecuting Attorneys’ Council
Two Gun Bills Were
Passed/Signed into Law
• There are differences in HB 826 (13 pages)
and HB 60 (29 pages), especially in the
definitions of terms… However, the last one
signed is controlling if there is a difference in
the language of the “NEW” code section.
Effective Date of Changes
• HB 60 signed by Governor on 4/23/14
– Effective 7/1/14
• HB 826 signed by Governor on 4/21/14
– Effective 7/1/14
HB 60 will control if inconsistent.
SB 340
Statutory Construction
“legislation enacted at the same session of the General Assembly
and amending the same statutory provision shall be considered
in pari materia, and full effect shall be given to each if that is
possible; Acts enacted during the same session shall be treated as
conflicting with each other only to the extent that they cannot be given
effect simultaneously; in the event of such a conflict, the latest
enactment, as determined by the order in which bills became law with
or without the approval of the Governor, shall control to the
extent of the conflict unless the latest enactment contains a
provision expressly ceding control in such an event; and
language carried forward unchanged in one amendatory Act
shall not be read as conflicting with changed language contained
in another Act passed during the same session.”
(In pari materia – upon the same subject matter; Statutes in pari
materia are to be construed together – Black’s Law Dictionary)
General Prohibition at School
OCGA § 16-11-127.1
• (b)(1) “…it shall be unlawful for any
person to carry or possess or have under
such person’s control while within a
school safety zone …any firearm or
explosive compound, other than
NOTE: Differences in HB 826 and HB 60.
Different Definitions
– HB 826 concentrated on the purpose the
vehicle is being operated for.
– HB 60 concentrated on the owner or who
“furnished” the transportation.
Different Definitions
– HB 826 adds definitions of “Dangerous
weapon”, “Firearm”, “Fireworks”, “Machine
gun”, and School.
– HB 826 deleted the definition of “Weapon”.
General Authorizations of
OCGA § 16-11-126
• Nothing New - Any person not prohibited
may have a: (Without a permit)
– “handgun or long gun…on his or her property or
inside his or her home, motor vehicle, or place of
– “long gun …” but if loaded “shall only be carried
in an open and fully exposed manner”
– “handgun …that is enclosed in a case and
People Eligible for a Permit
(but NOT required to have one)
• May transport in a private motor vehicle a
handgun or long gun:
– However; private property owners:
(person in legal control through a lease, rental
agreement, licensing agreement, contract, etc.)
Has the right to forbid possession … on their
property (except parking lot rules of OCGA
§ 16-11-135.
O.C.G.A. § 16-11-126 (d)
If You Have a License…
• From GA or a state that recognizes our
• Can carry everywhere not listed in (1) – (7)
below, subject to the rules of employer
provided parking outlined in OCGA § 16-11135;
– UNLESS : Private property owner (or lawful
possessor) excludes or ejects a person from the
private property.
O.C.G.A. § 16-11-127.1(c)
Employee’s Vehicle in Employer’s
Parking Lot
• OCGA § 16-11-135 regulates what both
public and private employers can and can
not prohibit in locked cars in their
employee parking lots.
Recognition From Other States
If another State recognizes our permits we will recognize a
permit from that State – same rules of carry apply to out of state
license holders that apply to GA license holders.
According to DPS - Alabama, Alaska, Arkansas, Arizona,
Colorado, Florida, Idaho, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Michigan, Mississippi, Missouri, Montana, New
Hampshire, North Carolina, North Dakota, Oklahoma,
Pennsylvania, South Dakota, Tennessee, Texas, Utah, West
Virginia, Wisconsin, and Wyoming.
O.C.G.A. § 16-11-126 (e)
Hunting & Fishing License
• A valid hunting or fish license, while “hunting,
fishing, or engaging in sport shooting” on
property that you have permission of the owner to
be on does not require a weapons carry permit.
• Parks, historic sites and recreational areas and the
publically owned buildings thereon– valid permit
– can carry unless prohibited by federal law.
O.C.G.A. § 16-11-126 (f ) & (g)
Crime and Punishment
• OCGA § 16-11-126 (h) “No person shall
carry a weapon without a valid weapons
carry license unless one of the exceptions
… commits the offense of carrying a
weapon without a license.”
• 1st – misdemeanor.
• 2nd within 5 years – felony 2 to 5 years.
General Prohibitions of
OCGA § 16-11-127
• “a person shall be guilty of carrying a
weapon or long gun in an unauthorized
location … carries a weapon or long gun”
Where Prohibited
(1) Government building;
(2) Courthouse;
(3) Jail or Prison;
(4) Place of Worship – see except;
(5) State mental health facility
(6) Nuclear power facility;
(7) Within 150 feet of a polling place
O.C.G.A. § 16-11-127(b)
• "Courthouse" means a building occupied
by judicial courts and containing rooms in
which judicial proceedings are held.
NOTE: Look at the definition of
“Government building.”
O.C.G.A. § 16-11-127(a)
1) a building in which a government entity is housed;
2) a building where a government entity meets in its official capacity,
but if the building is not a publicly owned building, the building is be
considered a government building for the purposes of this Code
section only during the time such government entity is meeting at such
building; or
3) the portion of any building that is not a publicly owned building that
is occupied by a government entity.
NOTE: OCGA § 16-11-127.1 treats schools and school safety zones
differently and OCGA § 16-11-130.2 deals with commercial airports.
O.C.G.A. § 16-11-127 (a)
• “an office, agency, authority, department,
commission, board, body, division,
instrumentality, or institution of the state
or any county, municipal corporation,
consolidated government, or local board
of education within this state.”
O.C.G.A. § 16-11-127 (a)
OCGA § 16-11-127 (e)
• Exceptions to General Prohibition - Carry in a
government building, when open for
business where ingress is not restricted or
screened by security personnel.
• If a license holder who enters or attempts to
enter a government building where ingress is
restricted or screened by security personnel,
- it’s a misdemeanor if one POST certified
security personnel is present.
Definition of Peace Officer 35-8-2
(A) An agent, operative, or officer of this state, a subdivision or
municipality thereof, or a railroad who, as an employee for hire
or as a volunteer, is vested either expressly by law or by virtue of
public employment or service with authority to enforce the
criminal or traffic laws through the power of arrest and whose
duties include the preservation of public order, the protection of
life and property, and the prevention, detection, or investigation
of crime;
(B) (For effective date, see note.) An enforcement officer who
is employed by the Department of Transportation in its Office of
Permits and Enforcement and any person employed by the
Department of Juvenile Justice who is designated by the
commissioner to investigate and apprehend delinquent children
and any child with a pending juvenile court case alleging the
child to be a child in need of services;
Definition of Peace Officer 35-8-2
(B.1) (For effective date, see note.) Personnel who are authorized to exercise
the power of arrest, who are employed or appointed by the Department of
Juvenile Justice, and whose full-time duties include the preservation of public
order, the protection of life and property, the detection of crime, or the
supervision of delinquent children in the department's institutions, facilities, or
(C) Personnel who are authorized to exercise the power of arrest and who
are employed or appointed by the Department of Corrections, the State Board of
Pardons and Paroles, municipal correctional institutions employing 300 or more
correctional officers, county probation systems, and county correctional
institutions; and
(D) An administrative investigator who is an agent, operative, investigator,
or officer of this state whose duties include the prevention, detection, and
investigation of violations of law and the enforcement of administrative,
regulatory, licensing, or certification requirements of his or her respective
employing agency.
Law enforcement support personnel are not peace officers within the meaning
of this chapter, but they may be certified upon voluntarily complying with the
certification provisions of this chapter.
• “a license holder who immediately exits or
leaves… upon notification … of failure to
clear security … shall not be guilty”
• However – “A person who is not a license
holder who attempts to enter a government
building carrying a weapon shall be guilty
of a misdemeanor”
O.C.G.A. § 16-11-127 (e)
What about the COURTHOUSE?
• Is the courthouse a “government
– PAC’s Advice:
• Establish your restricted access at the point of
• At least one member must be POST certified;
• Post the prohibition; and
• Give the license holder the chance to immediately
exit or leave.
• “private property owners or persons in legal
control of private property through a lease, rental
agreement, licensing agreement, contract, or any
other agreement to control access to such property
shall have the right to forbid exclude or eject a
person who is in possession of a weapon or long
gun on their private property in accordance with
paragraph (3) of subsection (b) of Code Section 167-21,”(Criminal Trespass – Remain).
O.C.G.A. § 16-11-127 (c)
• Forbidden unless the governing body or
authority of the place of worship permits the
carrying of weapons or long guns by license
• A license holder shall not be arrested and can
only be fined $100. A non-license holder punished for a misdemeanor.
O.C.G.A. § 16-11-127 (b) & (e)
• Treated no differently than any owner/lessor of
private property:
• License holder may enter, but owner/lessor has
right to “exclude or eject a person who is in possession
of a weapon or long gun on their private property in
accordance with the criminal trespass statute” –
[remains on the property after being given notice
to depart].”
• Under former law, no entry permitted unless bar
owner permitted.
deleted O.C.G.A. § 16-11-127 (a)(1), (b)(6)
see O.C.G.A. § 16-11-127 (c)
OCGA § 16-11-134
Discharging firearm while under the influence of
alcohol or drugs
a) It shall be unlawful for any person to discharge a
firearm while:
1) Under the influence of alcohol or any drug or any combination
of alcohol and any drug to the extent that it is unsafe for the
person to discharge such firearm except in the defense of life,
health, and property;
2) The person's alcohol concentration is 0.08 grams or more at any
time while discharging such firearm or within three hours after
such discharge of such firearm from alcohol consumed before
such discharge ended; or
OCGA § 16-11-134
Discharging firearm while under the influence of
alcohol or drugs
Subject to the provisions of subsection (b) of this Code section, there is any
amount of marijuana or a controlled substance, as defined in Code Section 1613-21, present in the person's blood or urine, or both, including the metabolites
and derivatives of each or both without regard to whether or not any alcohol is
present in the person's breath or blood.
The fact that any person charged with violating this Code section is or
has been legally entitled to use a drug shall not constitute a defense
against any charge of violating this Code section; provided, however,
that such person shall not be in violation of this Code section unless
such person is rendered incapable of possessing or discharging a
firearm safely as a result of using a drug other than alcohol which such
person is legally entitled to use.
Any person convicted of violating subsection (a) of this Code section
shall be guilty of a misdemeanor of a high and aggravated nature.
Nuclear Power Facility
OCGA § 16-11-127.2
• No Weapons or long guns “on the premises”.
• Punishment:
– Misdemeanor.
– If done with “intent to do bodily harm on the
premises” – felony, 2 to 20 and $10,000 fine.
O.C.G.A. § 16-11-127 (b)(6)
A person who has been authorized in writing by a duly authorized
official of the school [a school, local board of education, or
postsecondary institution] [a public or private elementary or
secondary school or a public or private technical school, vocational
school, college, university, or other institution of postsecondary
education or a local board of education as provided in Code Section
16-11-130.1] to have in such person's possession or use as part of any
activity being conducted at a school building, school property, or
[within a school safety zone, at a school function, or on a bus or
other transportation furnished by a school a weapon] [ school
function a weapon within a school safety zone or on a bus or other
transportation furnished by a school a firearm] which would
otherwise be prohibited by this Code section. Such authorization
shall specify the weapon or weapons types of firearms which have
been authorized and the time period during which the authorization
is valid;
• New Exception to General Prohibition:
“(5) This subsection shall not apply to any
firearm used for classroom work authorized
by a teacher.”
• Exception in current law in the definition
of a “Weapon” – “excludes any of these
instruments used for classroom work
authorized by the teacher”.
Exceptions to School Requirements
for Authorizing
Adopts a policy;
Certain personnel;
List of approved weapons;
Mandatory methods of securing weapons;
Personnel must be a license holder and pass a
background check.
O.C.G.A. § 16-11-130.1
Punishment for Violating
OCGA § 16-11-127.1
• License holder – misdemeanor.
• Non-License holder – felony 2 to 10 and
up to $10,000 fine.
• If it involves a dangerous weapon or
machine gun – felony 5 to 10 and up to
$10,000 fine.
OCGA § 16-11-130.2
• Commercial service airport
“(a) no person shall enter the restricted access area
… in or beyond the airport security checkpoint, …
weapon or long gun.”
– Non License Holder – misdemeanor.
– License Holder – misdemeanor, but right to retreat .
– With intent to commit a separate felony – 1 to 10 years
and $1000 - $15,000 fine.
License Holder’s Right to Retreat
at an Airport
Upon notification;
At the screening check point for the restricted area;
That they are in possession of a weapon or long gun;
Immediately leaves the restricted access area and
compliance with TSA rules; then
NOTE: No requirement for POST certified screeners here
like other government buildings.
O.C.G.A. § 16-11-130.2
Where Prohibition does NOT Apply
• An Airport Drive;
• General Parking Area;
• Walkway;
• Shops; or
“Areas of the terminal that are outside the screening
checkpoint and that are normally open to
unscreened passengers or visitors to the airport.”
O.C.G.A. § 16-11-130.2
“(d) …shall be null, void, and of no force and
effect, and this Code section shall preempt any
preempt any such ordinance, resolution,
regulation, or policy.”
O.C.G.A. § 16-11-130.2
OCGA § 16-11-137
– (a) must carry the permit or proof of exemption
… “failure to do so shall be prima-facie evidence
of a violation of …16-11-126 through 16-11-127.2”
NOTE: (c) can only charge $10 if they produce in court the permit valid
at the time or proof of exemption valid at the time.
– (b) “A person carrying a weapon shall not be
subject to detention for the sole purpose of
investigating whether such person had a weapon
carry license”
Convicted Felons and Affirmative
• HB 60 eliminates from OCGA §16-3-24.2 the exception for
offenses found under Part 3 of Article 4 of Chapter 11.
• In other words, a defendant’s assertion of an affirmative
defense of justification under Code Section 16-3-21, 16-3-23,
16-3-23.1, or 16-3-24 may no longer be defeated by the fact
that the person was in violation of any of the statutes included
within Part 3.
• Since possession of a firearm by a convicted felon is one of
those offenses found under Part 3, the use of deadly force by a
defendant, who was a convicted felon and unlawfully in possession
of a firearm under OCGA §16-11-131, will not, in and of itself,
prevent the defendant from asserting an otherwise lawful
justification defense.
O.C.G.A. § 16-11-138
Defense of Self or Others
• HB 60 added a new OCGA §16-11-138
which provides as follows: “Defense of
self or others, as contemplated by and
provided for under Article 2 of Chapter 3
of Title 16 shall be an absolute defense to
any violation under this part.”
OCGA § 8-3-202
It is now unlawful to “require as a condition
of tenancy in public housing, any
prohibition or restriction of any lawful
possession of a firearm within an individual
dwelling unless required by federal law or
Regulation of Your Employees
OCGA § 16-11-173
The sheriff, chief of police, commanding
officer of any law enforcement agency, the
district attorney and the solicitor-general:
“shall regulate and determine the
possession, carrying, and transporting of
firearms and weapons … so long as …
comport with state and federal law.”
• General prohibition for under 21, except:
– (i) Is at least 18 years of age;
– (ii) Provides proof that he or she has completed
basic training in the armed forces of the United
States; and
– (iii) Provides proof that he or she is actively
serving in the armed forces of the United States
or has been honorably discharged from such
O.C.G.A. § 16-11-129
• (i) Pointing a gun or a pistol at another in
violation of Code Section 16-11-102;
deletes O.C.G.A. § 16-11-129 (b)(2)(H)
– “(J) … hospitalized as an inpatient in any mental
hospital or alcohol drug treatment center within the
five years immediately preceding the application”.
– “(K) … any person who has been adjudicated
mentally incompetent to stand trial; or
– … any person who has been adjudicated not guilty by
reason of insanity at the time of the crime pursuant to
Part 2 of Article 6 of Chapter 7 of Title 17.
O.C.G.A. § 16-11-129
Petitions for Relief from License
• New paragraph (b.1) applies to an individual
denied a license because of mental health.
• In the Court of original adjudication after
notice to the civil party or the prosecuting
• Establishes procedures for a hearing.
O.C.G.A. § 16-11-129
• “(3) The court shall grant the petition for relief if such
court finds by a preponderance of the evidence that
the person will not likely act in a manner dangerous to
public safety in carrying a weapon and that granting
the relief will not be contrary to the public interest.”
• “(5) …petition for relief once every two years…”
• No petition prior to discharge from treatment.
O.C.G.A. § 16-11-129 (b.1)(3,5)
Creates New Cause of Action
• Superior Court - Action in Mandamus or
“other legal proceedings in order to obtain
such license”. This is following a denial.
• Probate Court – “relative to the applicant’s
fitness to be issued such license.
• Duty upon denial of a license to inform the
applicant of their remedies under these
O.C.G.A. § 16-11-129 (j)
• Fingerprinting shall not be required for
applicants seeking temporary renewal
licenses or renewal license.
O.C.G.A. § 16-11-129 (c)
• (k) Data base prohibition. A person or entity shall not
create or maintain a multijurisdictional data base of
information regarding persons issued weapons carry
• (l) Verification of license. “…shall not be authorized
to provide any further information regarding license
NOTE: exception for subpoena or court order, or for
public safety purposes – can verify legitimacy and
O.C.G.A. § 16-11-129 (k) & (i)
Silencers or Suppressors
OCGA § 27-3-4
• Generally prohibited from hunting, however;
– You are on your private property, or
– You have “verifiable permission” of the property
owner; or
– Public land in areas designated by DNR; then
You may hunt.
Violation is a misdemeanor with a 3-year
hunting privilege suspension.
State of Emergency Declaration
OCGA § 38-3-37
• Can’t change the Rules by declaring a
state of emergency.
• Any person from the government,
including the National Guard is
prohibited from:
– Seizing any firearm or ammunition.
– Prohibit possessing.
– Prohibit a license holder from carrying
HB 773
Revises the Offense of Discharging a
Gun or Pistol Near a Public Highway
• Amends 16-11-103
• It is a misdemeanor to discharge a firearm
within 50 yards of a public highway
(public street, road or highway in the state of
HB 773
• Exceptions include:
– If the discharge is shielded from the view of a
traveler on the public highway.
– Indoor or outdoor shooting range.
– Facilities used for that purpose.
– Business locations for a licensed firearms
Policing an armed citizenry
• Rule # 1 – Watch the hands… If you see actions
that threatens your safety… Act… Control
• Rule # 2 – It ain’t the gun that should get all your
attention… Switch your observation skills from
“gun” to “behavior”…. Actions that can justify a
Tier 2 encounter should be noted carefully…
• Rule # 3 – Become the conversationalist of the
decade…. Learn to talk to people and keep the
encounter, as long as possible, at Tier 1… All
voluntary… All cooperative and All pleasant…
Supreme Court holdings sculpt out, at least theoretically,
three tiers of police-citizen encounters: (1)
communication between police and citizens involving no
coercion or detention and therefore without the
compass of the Fourth Amendment, (2) brief 'seizures'
that must be supported by reasonable suspicion, and (3)
full-scale arrests that must be supported by probable
cause. Under the first tier, a police officer may approach
an individual and ask a few questions without triggering
Fourth Amendment scrutiny. The second tier occurs
when the officer actually conducts a brief investigative
Terry stop of the citizen. In this level, a police officer,
even in the absence of probable cause, may stop
persons and detain them briefly, when the officer has a
particularized and objective basis for suspecting the
persons are involved in criminal activity. The third tier is
an actual or de facto arrest which requires probable
cause and involves restraint of one's liberty. ..Lewis v.
State, 233 Ga. App. 560, 560 (504 S.E.2d 732) (1998). 58
In the United States District Court
for the Southern District of Georgia
Brunswick Division
Case 2:12-cv-00171-LGW-JEG Document 28
Decided and Filed 02/27/14
This action is predicated on a traffic stop and request for a firearms permit. On
August 3, 2012, Theobald travelled south along Interstate 95 in McIntosh County,
Georgia... Shortly after midnight, Theobald stopped at a convenience store... He
was carrying a Glock pistol in a holster outside his jeans…Theobald wore the pistol
underneath a seersucker suit coat. …The pistol was not visible from a "normal
vantage" without something causing the jacket to open... Deputy Kabler was on
duty inside the convenience store with two other officers, Sergeant Myles and
Deputy Wainwright.
After pumping gas, Theobald entered the store to purchase a snack, and noticed the
officers as he entered….When Theobald opened the convenience store door, the wind
blew open his jacket, revealing the firearm. ..Theobald grabbed his jacket and closed
it…Deputy Kabler asked Sergeant Myles if he had seen the weapon, and Sergeant
Myles responded in the affirmative… Sergeant Myles stated that he "also told Deputy
Kabler that because it appeared to [him] that the white male had attempted to cover
up the gun,
making it no longer visible, [he] was concerned about whether the white male
possessed a valid weapon's license allowing him to possess the weapon in a
convenience store." Sergeant Myles advised Deputy Kabler that he believed it would
be appropriate for Deputy Kabler to make contact with [him]
"because the concealing of the weapon by the white male upon encountering law
enforcement seemed suspicious to [him]… Deputy Kabler testified that where "early in
the morning at a convenience store, (a person] walk[ed] in and saw three law
enforcement officers and made an obvious move to conceal the weapon," the
concealment of the firearm was
of a "significant" and "suspicious" nature… Shortly thereafter, Theobald returned to his
car and exited
the convenience store parking lot.. Deputy Kabler walked outside and observed [him]
drive away.
Deputy Kabler initiated a traffic stop shortly after Theobald merged onto the
interstate… Within a minute, Sergeant Myles and Deputy Wainwright
arrived as backup…
Sergeant Myles and Deputy Wainwright never spoke
to Theobald and remained behind Theobald's vehicle for the duration of the stop…The
traffic stop lasted eight minutes and fifty seconds… during which time
Theobald remained in his car... Deputy
Kabler testified that the purpose of the stop was
“to identify that he . . . had a permit to carry the weapon that he concealed in front of
us." …Deputy Kabler approached Theobald's car on the passenger
side and asked to see Theobald's driver's license. Deputy Kabler then asked Theobald
if he had a weapon with him... Theobald "asked [Deputy Kabler] if he
had to answer" the question and Deputy Kabler stated, "I would hope [you] would be
truthful" or "honest."
Theobald said that he had a Florida Weapons Permit…
Deputy Kabler asked to see the weapons permit. Theobald again asked, "Do I have to
show it .. Kabler responded, "Yes, sir, you do." Theobald produced his concealed
Florida Weapons Permit.
Theobald testified that he "had some concern that if [he] answered the question in the
affirmative . . . , which was the truth, that would have . . . escalated the stop and . . .
[he] would have been . . . made to get out of the car or [Deputy Kablerl would have
pointed his firearm at [him] or something like that.“ Deputy Kabler testified that
Theobald was being "evasive" in the "way he was questioning [Deputy Kabler's]
questions" and by answering Deputy Kabler's questions with questions of his own…
After Theobald gave Deputy Kabler his licenses, Deputy
Kabler walked behind Theobald's car and ran Theobald's driver's license…Theobald
had a valid license… Aside from looking at Theobald's weapons permit, Deputy Kabler
took no other stops to verify its validity… Deputy Kabler returned Theobald's licenses
and told him he was free to go…Deputy Kabler did not issue a traffic citation.
Theobald asked Deputy Kabler for his name and badge number and for their current
location…Deputy Kabler informed Theobald that they were in McIntosh County,
Georgia, and told Theobald that he could find information about his rights
online…Deputy Kabler went to his vehicle to retrieve a business card but realized he
was out of cards. In lieu of a business card, Deputy Kabler gave Theobald his name
and badge number to write down.
Theobald testified that Deputy Kabler "wasn't particularly aggressive or antagonistic"
and that he was not concerned about Deputy Kabler's manner or attitude during the
On September 21, 2012, Plaintiffs
("GCO") and Theobald filed a complaint seeking relief under 42 U.S.C. § 1983 for
violations of Theobald's constitutional rights at the hands of Defendant Deputy Kabler.
Specifically, Plaintiffs contend that Defendant violated Theobald's rights under the
Fourteenth Amendment of the United States Constitution by subjecting him to an
seizure. Id. Plaintiffs also contend that Defendant violated O.C.G.A. §§ 16-11-173 and
Plaintiff Theobald seeks damages from Defendant in his individual capacity… Both
Plaintiffs seek declaratory and injunctive relief against Defendant in his official
1. Fourteenth Amendment
Plaintiff contends that Defendant violated his Fourteenth Amendment rights by
detaining Theobald without reasonable suspicion, by performing an unreasonable
search, and by telling Plaintiff that Defendant could ask to see a person's permit any
time Defendant saw a weapon.
According to the Eleventh Circuit, "[i]f an Amendment
provides an explicit textual source of constitutional protection against the sort of
conduct complained of, that Amendment—not the more generalized notion of
substantive due process under the Fourteenth Amendment—is the guide for analyzing
the claim."
Jordan v. Mosley, 298 F. App'x 803, 805 (11th Cir. 2008). The Fourth Amendment to
the United States Constitution explicitly protects against "unreasonable searches and
seizures…. Thus, Plaintiffs' unreasonable seizure claims should be analyzed under the
Fourth Amendment.
2. Fourth Amendment
The Fourth Amendment applies to the states through the Fourteenth
Amendment's Due Process Clause, and provides that "[t]he right of the
people to be secure in their persons against unreasonable searches and
seizures, shall not be violated." U.S. Const. amend. IV. A court must
consider the totality of the circumstances to decide whether a search or
seizure is reasonable under the Fourth Amendment.
Under the Supreme Court's decision in Terry v. Ohio,
law enforcement officers may seize a suspect for
a brief, investigatory Terry stop where
(1) The officers have a reasonable suspicion that the
suspect was involved in, or is about to be involved in, criminal activity, and (2) the
stop 'was reasonably related in scope to the circumstances which justified the
interference in the first place.'
To justify pulling a vehicle over for a Terry stop, the police officer must "be able to
point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that intrusion."
The facts must show more than an 'inchoate and unparticularized suspicion or
hunch.“… "While 'reasonable suspicion' is a less demanding standard than probable
cause and requires a showing considerably less than preponderance of the evidence,
the Fourth Amendment requires at least a minimal level of objective justification for
making the stop.“ In this case, the totality of the circumstances generated reasonable
suspicion to perform a traffic stop to investigate whether Plaintiff possessed a license
to carry the firearm. Deputy Kabler's reasonable suspicion formed when Theobald
made "an obvious move to conceal the weapon."
"While 'reasonable suspicion' is a less demanding
standard than probable cause and requires a showing considerably less than
preponderance of the evidence, the Fourth Amendment requires at least a minimal
level of objective justification for making the stop." ,,, In this case, the totality of the
circumstances generated reasonable suspicion to perform a traffic stop to investigate
whether Plaintiff possessed a license to carry the firearm. Deputy Kabler's reasonable
suspicion formed when Theobald made
"an obvious move to conceal the weapon.“… As noted above, the officers saw that
Theobald was carrying a
firearm when the wind blew his jacket open. After he saw the three officers inside the
convenience store, Theobald concealed the firearm by closing his outer garment.
Although Theobald's testimony indicates that he was unaware that the officers saw his
firearm when it was accidentally exposed, this does not refute the totality of the
circumstances that would warrant a
reasonable officer's reasonable suspicion that Theobald was carrying a concealed
firearm without a permit.
Courts have considered the time of night as a relevant
factor in determining the reasonableness of a Terry stop. See U.S. v. Abokhai, 829 F.2d
666, 670 (8th Cir. 1987) Theobald entered the convenience store sometime after
midnight, contributing to Deputy Kabler's reasonable suspicion.
Deputy Kabler observed Theobald carrying a concealed weapon in a place where
Georgia law requires individuals to possess a valid weapons license. O.C.G.A. § 16-11126(h) (1) states, "No person shall carry a weapon without a valid weapons carry
license unless he or she meets one of the exceptions to have such license as provided
in subsections (a) through (g) of this
Code section."
By Theobald entering the convenience store after
midnight and closing his outer garment so as to conceal the weapon in the presence of
police officers, a reasonable officer could form reasonable suspicion that Theobald did
not possess a valid weapons license to carry a concealed firearm.
3. Qualified Immunity
Even if it could be said that Deputy Kabler was wrong in his conclusion
that reasonable suspicion existed, there was at least arguable reasonable
suspicion. As such, he is entitled to qualified immunity. "When an officer
asserts qualified immunity, the issue is not whether reasonable suspicion
existed in fact, but whether the officer had 'arguable' reasonable suspicion
to support an investigatory stop." Jackson v. Sauls, 206 F.3d 1156, 1166
(11th Cir. 2000) (citing Williamson v. Mills, 65 F.3d 155, 157 (11th Cir.
Government officials performing discretionary functions receive qualified
immunity if a reasonable official would not have known that his actions
violated clearly established law.
In the Eleventh Circuit, only "binding precedent—cases from the United
States Supreme Court, the Eleventh Circuit, and the highest court of the
state under which the claim arose—[can be used] to determine whether the
right in question was clearly established at the time of the violation." Coffin
v. Brandau, 642 F.3d at 1013.
Binding precedent did not exist on August 3, 2012 to inform Deputy Kabler
that he should not have formed a suspicion or that stopping Theobald to
determine whether he possessed a valid weapons license was an
unreasonable seizure. Plaintiffs have not presented, and this Court has not
found, U.S. Supreme Court,
Eleventh Circuit, or Georgia Supreme Court precedent establishing that a
law enforcement officer would not form reasonable suspicion to validate a
Terry stop under the circumstances of this case. Deputy Kabler is entitled
to qualified immunity.
4. State Law Claims
Defendant moved for summary judgment on the state law claims as well. Plaintiffs
contend that Deputy Kabler violated O.C.G.A. § 16-11-173 by enforcing his own
regulation on carrying concealed weapons in Georgia…
5. Plaintiffs also contend that "[Deputy] Kabler violated O.C.G.A. § 51-7-20 because
he had no authority to detain [Plaintiff] Theobald." This Court concludes that both of
Plaintiffs' state law claims fail as a matter of law... Consequently, Plaintiffs' state law
claim under O.C.G.A. § 16-11-173 fails as a matter of law.
False Imprisonment Georgia law defines false imprisonment as "the unlawful detention
of the person of another, for any length of time,
whereby such person is deprived of his personal liberty.“ O.C.G.A. § 51-7-20. In
Durden v. State, the Georgia Supreme Court held that "[a]n arrest and search, legal
under federal law, [is] legal under state law.“The court explained that this holding was
necessary because the dual federal and state inquiries into probable cause or reasonable
suspicion "serve no useful purpose and result in complicating the law in an area which
needs to be readily
understood by law enforcement officers." Id.
Because Deputy Kabler had reasonable suspicion to conduct a Terry stop of Theobald,
Deputy Kabler did not violate Theobald's state right to be free from unlawful
detention under O.C.G.A. § 51-7-20.
Therefore, Plaintiffs' false imprisonment claim fails as a matter of law.
For the reasons stated above, Defendant's Motion for
Summary Judgment is GRANTED (Dkt. No. 17) and Plaintiff's Motion for Partial
Summary Judgment is DENIED. Dkt. No. 21. The Clerk of Court is directed to enter
the appropriate judgment.
Special acknowledgement to the
Georgia Sheriffs’ Association
Terry Norris , Executive Director
Georgia Sheriffs’ Association
HB 845
Relates to Booking Photographs
• Creates O.C.G.A. 35-1-18
• (a) As used in this Code section, the term
'booking photograph' means a photograph or
image of an individual taken by an arresting
law enforcement agency for the purpose of
identification or taken when such individual
was processed into a jail.
HB 845
• (b) Except as provided in Code Section 5018-77 and booking photographs required
for publication as set forth in Titles 16 and
40, for the State Sexual Offender Registry,
and for use by law enforcement agencies for
administrative purposes, an arresting law
enforcement agency or agent thereof shall
not post booking photographs to or on a
HB 845
• (c) An arresting law enforcement agency shall
not provide or make available a copy of a
booking photograph in any format to a person
requesting such photograph if:
• (1) Such booking photograph may be placed in
a publication or posted to a website or
transferred to a person to be placed in a
publication or posted to a website; and
• (2) Removal or deletion of such booking
photograph from such publication or website
requires the payment of a fee or other
HB 845
• (d) When a person requests a booking
photograph, he or she shall submit a
statement affirming that the use of such
photograph is in compliance with
subsection (c) of this Code section. Any
person who knowingly makes a false
statement in requesting a booking
photograph shall be guilty of a violation of
Code Section 16-10-20."
HB 845
• But what if the photo is not a “booking
photo from the jail”? What if you made the
photo from a freeze frame taken from the
dashcam? And, you need to post a picture
of the person, now wanted for another
crime, on your website? Some
disagreement exists about how to do this.
______________________________________ is a news organization which may have occasion to
request booking photographs from the _______________ County Sheriff’s Office. Such booking
photographs may be broadcast, published, and/or posted to a website in the normal course of
Neither ___________________________________, nor any employee or agent thereof, shall ever
remove or delete such booking photograph from such broadcast, publication, and/or website in
return for the payment of a fee or other consideration.
This statement is in compliance with subsection (c) of O.C.G.A. § 35-1-18.
Executed this ______ day of __________, 20____
Authorized Agent / Title
Notary Public
My Commission Expires
911 Calls
HB 449 – Rep. Micah Gravley (7/1/14)
This Bill amends OCGA § 50-18-72 (Open
Records) by adding a new section (26.1)
“prohibits disclosure of audio recordings of 911
calls which contain distressed speech or cries in
extremis of a caller who died during the call or
the speech or cries of a person who was a minor
at the time of the call.”
Exceptions to Exemption
1) an appointed representative of the deceased
caller's estate;
2) a parent or legal guardian of a minor caller;
3) a defendant in a criminal case;
4) a party in a civil action;
5) an attorney representing 1-4 above; and
6) an attorney who may pursue a civil action
and the audio recording is relevant
SB 383 ~ 45-16-25(c)
Coroners and Deceased’s Property
"(c) The coroner or county medical examiner shall, in
the absence of the next of kin of the deceased person,
take possession of all property of value found on
such person, make an exact inventory thereof on his
or her report, and surrender the same to the person
entitled to its custody or possession. In no
circumstance shall any property of value found on
or belonging to the deceased be converted to the
personal use of the coroner or county medical
SB 383 ~ 45-16-25(c)
Coroners and Deceased’s Property
“…when the medical examiner's or coroner's need for
their retention has ended, provided that any property of
value shall be returned to the next of kin of the deceased
when no longer needed in the investigation or for
evidence in a prosecution. Any coroner who converts
property of a deceased to his or her personal use shall be
guilty of a violation of Code Section 16-18-4 and upon
conviction shall be punished as provided in paragraph
(3) of subsection (a) of Code Section 16-18-12…”
SB 383 ~ 45-16-25(c)
Coroners and Deceased’s Property
• OOPS – violation of 16-18-4 –
• there is no Chapter 18 in Title 16 OCGA…
• But this bill passed the Senate 52 – 0 and
the House 163 – 6. Governor Deal signed
it on April 24, 2014…
Christmas Trees – Criminal Justice
HB 271 – Rep. Jay Neal (no longer there) (7/1/14)
This Bill passed the House in 2013. It was
about records restriction and the
prosecutor’s role in the process – these
provisions ended up in Criminal Justice
Reform II.
Felony Murder
Part I of the Bill creates a new offense of 2nd
degree murder:
“when, in the commission of cruelty to
children in the second degree, he or she
causes the death of another human being
irrespective of malice.”
Cruelty to Children in the 2nd
• § 16-5-70. Cruelty to children
(c) Any person commits the offense of cruelty to
children in the second degree when such person with
criminal negligence causes a child under the age of 18
cruel or excessive physical or mental pain.
– (d)(2) A person convicted of the offense of cruelty to
children in the second degree shall be punished by
imprisonment for not less than one nor more than ten
Punishment for 2nd Degree Murder
“(2) A person convicted of the offense of
murder in the second degree shall be
punished by imprisonment for not less than
ten nor more than 30 years."
No Mental Health Court for 2nd
Degree Murder
Amended OCGA § 50-18-72 so as to add this
code section to the list of offenses that may
not be diverted to a mental health court,
“In the case of a separate court supervised reentry
program designed to more closely monitor mentally ill
offenders returning to the community after having
served a term of incarceration.”
2nd Degree Murder Related to
O.C.G.A. § 15-11-203 relates to when DFACS
does not have to make reasonable efforts to
place the child back with the parent that:
– “has been convicted of the murder or murder in
the second degree of another child of such parent.”
O.C.G.A. § 15-11-233 relates to termination
of parental rights – adds the new code
Superior Court has Exclusive
Section 2-4 adds 2nd degree murder to
OCGA § 15-11-560, related to concurrent
and original jurisdiction of the Superior
Possession of Firearms by
Convicted Felons
Section 2-5 amends OCGA § 16-11-131 & 133
to include both murder and second degree
murder in the definition of “forcible felony”
and when the aggravated punishment is
Bail and Bonds
HB 271 also amends §17-6-15(b)(1)(E) relating to the rules
and regulations that a sheriff may provide for the
acceptance of a surety in the county.
Current Law:
“If the sheriff determines that a professional bonding
company is an acceptable surety, the rules and regulations
shall require, but shall not be limited to, the following: …
(E) Establishment of a cash escrow account or other form of
collateral in a sum and upon terms and conditions approved by the
What does this mean to Professional
Bonding Company?
• Less than 18 months of continuous operation:
– the sheriff can require the bonding company to
establish a cash escrow in an amount to be
determined by the sheriff;
• Longer than 18 months:
– not to exceed 10% of the current outstanding bail
bond liability;
• No insurance policy:
– in lieu of cash escrow account, unless the company
was using such policy as collateral as of December 31,
Bonds Further Clarified
Amends 17-6-30
(a) to provide that sureties may not charge or receive
more than 15% of the face amount of the bond set,
(including principal and surcharges) (used to be 12% on
bonds of $10,000 or less)
A surety may charge and receive a minimum of $50.00
per bonded charge or offense as compensation,
regardless of whether such compensation exceeds 15%
of the face amount of any bond set.
Strangulation – Aggravated
HB 911 - Rep. Mandi Ballinger (7/1/14)
This Bill adds a new subsection (a) to O.C.G.A.
§ 16-5-21 (Aggravated Assault) regarding
strangulation. 'Strangulation' is defined as:
“impeding the normal breathing or circulation of
blood of another person by applying pressure to the
throat or neck of such person or by obstructing the
nose and mouth of such person.”
When Strangulation Occurs
O.C.G.A. § 16-5-21(b)(3) provides that the
offense of aggravated assault can be
committed when, he or she assaults:
“With any object, device, or instrument which,
when used offensively against a person, is likely
to or actually does result in strangulation.”
HB 911 (cont’d)
− It shifts all remaining subsections in
O.C.G.A. § 16-5-21 down a letter (change
your warrant and indictment forms).
− This Bill also amends O.C.G.A. § 15-11-2
of the juvenile code to include the
strangulation definition.
Home Invasion
HB 770 – Rep. Chuck Efstration (former ADA) (7/1/1/4)
• Creates the new crime of “Home Invasion" when
a person enters or remains in an occupied dwelling
with the intent to commit a forcible felony or forcible
misdemeanor while armed.
• Penalties:
– Life in prison or 10-20 years with $10,000 to $100,000
fines, without probation, suspension or deferment and
would run consecutively to any other offenses under this
code section.
First Degree Home Invasion
• O.C.G.A. § 16-7-5 (b) defines first degree home
invasion when a person, with intent to commit a
forcible felony, without authority and while in
possession of a deadly weapon, enters into the
occupied dwelling of another.
• Penalty:
– Life imprisonment, or 10 to 20 years in prison and
a $100,000.00 fine.
Second Degree Home Invasion
• O.C.G.A. § 16-7-5 (c) defines second degree home
invasion when a person, with intent to commit a
forcible misdemeanor without authority and while in
possession of a deadly weapon, enters into the
occupied dwelling of another.
• Penalty:
– 5 to 20 years in prison and a $100,000.00 fine.
O.C.G.A. § 16-7-5 (e) allows for the sentencing
court to issue a probated sentence but prohibits that
sentence to be suspended, deferred or withheld.
O.C.G.A. § 16-11-133 (b) (Minimum periods of
confinement for persons convicted who have prior
convictions) by adding “home invasion in any
degree,” to the list of enumerated offenses which
trigger enhanced sentencing.
Other Considerations
Amends O.C.G.A. § 16-11-160 (D) , (Use of
machine guns, sawed off rifles or firearms with
silencers during commission of certain offenses),
by adding a new subparagraph (D.1) which reads
to include the offense.
Amends O.C.G.A. § 16-16-1, relating to definitions
for forfeiture of a weapon used in the commission
of a crime to include Home Invasion.
Bail and Appeal Bonds
• O.C.G.A. § 17-6-1 (a) (5.1) to make home
invasion as an offense that is only bailable before
a superior court judge.
• O.C.G.A. § 17-6-1(g) to include persons
convicted of home invasion as those that are not
eligible for an appeal bond if they are sentenced
to incarceration of 5 years or more.
Victims’ Rights and Not Eligible for
Voluntary Surrender
• Amends O.C.G.A. § 42-1-11 to include home
invasion on the list of crimes that requires penal
institutions to notify crime victims of the
impending release of an offender.
• Amends O.C.G.A. § 17-10-9.1(a) (5.1) to include
home invasion to the list of crimes that are not
eligible for voluntary surrender to county jail or
correctional institutions upon sentencing.
Cargo Theft (GBI’s Bill)
HB 749 – Rep. Geoff Duncan (7/1/14)
This Bill creates new OCGA § 16-8-22 to
define the crime of cargo theft. It is a felony
to unlawfully take (or convert) any vehicle or
equipment related to commercial transportation
of cargo or the cargo transported therein; or to
steal any trailer or similar equipment or the
cargo therein which is deployed by or used by
law enforcement.
NOTE: This includes a “rail car”.
Value and Punishment
• Value – “the fair market value of such
vehicle, appurtenances, and cargo taken or
unlawfully appropriated.”
• Controlled Substance:
– less than $10K – 1 to 10; $10K to $100K fine.
– $10K to $1M – 5 to 25; $50K to $1M fine.
– $1M or more – 10 to 30; $100K to $1M fine.
• Everything Else:
– less than $1500 – misdemeanor.
– $1500 to $10K – 1 to 10; $10K to $100K
– $10K to $1M – 5 to 20; $50K to $1M
– $1M or more – 10 to 20; $100K to $1M
• Property Deployed by Law Enforcement (Regardless of
Value) – 1 to 10; $10K to $100K
Additional Punishment
provides for the revocation of a defendant’s
commercial driver’s license in accordance with
OCGA 40-5-151 upon conviction
Fifth Wheel
The Bill also creates new O.C.G.A.§16-8-23
which provides that it is unlawful to modify,
alter attempt to alter, and if altered, to possess,
sell or move on the highways of this state "a
device known as a fifth wheel or the antitheft
locking device attached to the fifth wheel" with
the intent to use the device to commit or
attempt to commit cargo theft under new
Section 16-8-22.
“Not less than one nor more than ten years,
a fine of not less than $10,000.00 nor more
than $100,000.00, or both."
Commercial Motor Vehicles
HB 753 – Rep. Alan Powell (7/1/14)
• Amends O.C.G.A. § 32-6-5 to allow the Department
of Transportation (DOT) to close any portion of the
state highway system due to “a declared state of
emergency for inclement weather conditions” and to
provide punishment (fine up to $1000) for causing
an accident in disregard of the DOT instructions.
• Section 2 modifies O.C.G.A. § 40-1-8 so that
violations of certain Federal Motor Carrier Safety
Regulations can be prosecuted as state offenses.
• Amends Chapter 11 of Title 40 Related to
Abandoned Motor Vehicles – allows for the
continued accrual of expenses related to storage, up
to the date of retrieval or public sale. It allows the
proceeds after the satisfaction of the lien to be
“divided equally” between the lien holder an the
governing authority.
• Creates a new subsection (a)(1) to O.C.G.A. § 40-6-51
which prohibits motor vehicles with more than six
wheels and CMVs from driving on Interstates 20, 75,
85, and Georgia Highway 400 inside Interstate 285.
Exceptions for Being Inside the Perimeter
– (A) picking up or delivering a shipment;
– (B) traveling to or from the motor vehicle’s terminal
– (C) traveling to a repair facility; or
– (D) travelling to the operator’s residence.
• Violators can be fined $150 unless they were driving
during a declared state of emergency for inclement
weather, in which case they “shall” be fined $1,000.
Statewide Master Jury List
HB 776 – Rep. Alex Atwood (7/1/14)
• Clarify and strengthen the duty of various state
agencies to provide information regarding
persons convicted of felonies, persons identified as
noncitizens, persons declared mentally incompetent,
and deceased persons to the Council of Superior
Court Clerks.
• Increases the authority of the Superior Court
Clerks with regard to jury selection (excuse for
age, etc.) and service and bars the establishment of
new jury clerks.
Ineligible to Serve as a Juror
• Amends O.C.G.A. § 15-12-4
"(a) Any person who has served as a trial or
grand juror at any session of the superior or
state courts shall be ineligible for duty as a
juror until the next succeeding county
master jury list has been received by the
NOTE: Same provision in HB 1076.
Children Testifying (Remotely Live)
HB 804 – Rep. Edward Lindsey (7/1/14)
New O.C.G.A. § 17-8-55:
Child – “under 17 years of age”
As a witness or victim of:
Murder, felony murder (16-5-1) Stalking (16-5-90)
Simple assault (16-5-20)
Family Viol Ord (16-5-95)
Simple battery (16-5-23)
Sexual Assaults (most)
Battery (16-5-23.1)
Armed Robbery (16-8-41)
Criminal Gang Activity (16-15-4) Kidnapping (15-5-40)
Cruelty to children (16-5-70)
Procedural Aspects
• Requires a motion; (10 days prior to trial)
• Hearing – to “determine whether a child
shall testify outside the physical presence
of the accused”;
• Preponderance finding – that the “child is
likely to suffer serious psychological or
emotional distress or trauma which
impairs such child’s ability to
communicate as a result of testifying in
the presence of the accused.”
Court May Consider
1) The manner of the commission of the
offense being particularly heinous or
characterized by aggravating
2) The child's age or susceptibility to
psychological or emotional distress or
trauma on account of a physical or
mental condition which existed before
the alleged commission of the offense;
3) At the time of the alleged offense, the
accused was:
– (A) The parent, guardian, legal custodian, or
other person responsible for the custody or
care of the child at the relevant time; or
– (B) A person who maintains or maintained an
ongoing personal relationship with such
child's parent, guardian, legal custodian, or
other person responsible for the custody or
care of the child at the relevant time and the
relationship involved the person living in or
frequent and repeated presence in the same
household or premises as the child;
4) The alleged offense was part of an
ongoing course of conduct committed by
the accused against the child over an
extended period of time;
5) A deadly weapon or dangerous
instrument was used during the
commission of the alleged offense;
6) The accused has inflicted serious physical
injury upon the child;
7) A threat, express or implied, of physical
violence to the child or a third person if
the child were to report the incident to
any person or communicate information
to or cooperate with a court, grand jury,
prosecutor, police officer, or law
enforcement office concerning the
incident has been made by or on behalf of
the accused;
8) A threat, express or implied, of the
incarceration of a parent, relative, or
guardian of the child, the removal of the
child from the family, or the dissolution
of the family of the child if the child were
to report the incident to any person or
communicate information to or cooperate
with a court, grand jury, prosecutor,
police officer, or law enforcement office
concerning the incident has been made
by or on behalf of the accused;
9) A witness other than the child has
received a threat of physical violence
directed at such witness or to a third
person by or on behalf of the accused,
and the child is aware of such threat;
10)The accused, at the time of the inquiry:
– (A) Is living in the same household with the
– (B) Has ready access to the child; or
– (C) Is providing substantial financial support
for the child; or
11)According to expert testimony, the child
would be particularly susceptible to
psychological or emotional distress or
trauma if required to testify in open court in
the physical presence of the accused.
NOTE: Very specific requirements of the order
and the method of taking the testimony,
including what and who may be present.
Release of Automobile Accident Information
HB 828 – Rep. Ronnie Mabra (7/1/14)
This Bill creates a new O.C.G.A. § 33-24-53,
which defines a "capper," "runner," or "steerer" to
be a person that is paid by an attorney, health care
professional, or owner of a health care practice or facility
for soliciting clients, patients, or customers for the
purpose of obtaining insurance benefits or
asserting a claim against another insured party or
insurance company for provision of services to the
client, patient, or customer.
New Crime
• Makes it unlawful for individuals, employees, and
companies to act as "cappers,” "runners," or
"steerers," and makes it unlawful for attorneys and
health care providers to compensate them in any way.
• A first conviction for this offense is punishable
as a misdemeanor with a minimum 30 days to
serve, and second and subsequent violations are
Media Must Play by the Rules
• Also amends O.C.G.A. § 50-18-72(a)((5)(I) to provide that
members of the media requesting a Uniform Motor Vehicle
Accident Report as part of information gathering efforts
for a media organization must affirm that the use of the
accident report complies with the new O.C.G.A. § 33-24-53.
• Knowingly making a false statement when requesting an
accident report under this Code section is made
punishable as a violation of O.C.G.A. § 16-10-20 (False
Statements and Writings).
Public Interest Requests
• O.C.G.A. § 50-18-72(a)((5)(J) is amended
such that requests for accident reports for
public interest purposes (i.e., research)
only apply to reports on accidents that
occurred more than 60 days prior to the
Invasion of Privacy
HB 838 – Rep. Kevin Tanner (7/1/14)
• This Bill is targeted at the individual who
posts intimate images of an ex-partner in
order to embarrass them.
• It adds a new code section, O.C.G.A. § 1611-90, to address the transmission of
photography or video depicting nudity or
sexually explicit conduct to another person
without their consent.
New Code Contains
a) defines the prohibited conduct including the
terms harassment, nudity, and sexually explicit
conduct as defined in Code Section 16-12-100.
b) describes the prohibited conduct as a person
knowing the content of a transmission or post, and
without consent of the person depicted in the image,
Special Provisions
• Misd. (H&A) – 1st; 1 to 5 Felony 2nd ($100,000).
• Special jurisdiction provisions related to out-ofstate residence or out-of-state victim if offender
is in state.
• Exceptions for law enforcement and several
consent provisions.
• A rebuttable presumption that an internet
provider does not know the content of a
transmission or post.
Animal Cruelty
HB 863 – Rep. Rich Golick (7/1/14)
“Malice” is now defined as:
A. An actual intent, which may be shown by
the circumstances connected to the act, to
cause the particular harm produced
without justification or excuse; or
Definition of “Malice (cont’d)
B. The wanton and willful doing of an act
with an awareness of a plain and strong
likelihood that a particular harm may
***This language came from the pattern jury
charge for “malice.”
Cruelty to Animals
1) Causes physical pain, suffering, or death to an
animal by any unjustifiable act or omission; or
***This comes from the current misdemeanor
statute, with “willful neglect” deleted (so as to
make willful neglect a felony)
Cruelty to Animals
NEW – “Adequate Care” Provision
2) Having intentionally exercised custody,
control, possession, or ownership of an animal,
fails to provide to such animal adequate food,
water, sanitary conditions, or ventilation that is
consistent with what a reasonable person of
ordinary knowledge would believe is the
normal requirement and feeding habit for
such animal's size, species, breed, age, and
physical condition.
Aggravated Cruelty to Animals
1) Maliciously causes the death of an animal;
2) Maliciously causes physical harm to an animal by
depriving it of a member of its body, by rendering
a part of such animal's body useless, or by
seriously disfiguring such animal's body or a
member thereof;
3) Maliciously tortures an animal by the infliction of
or subjection to severe or prolonged physical pain;
Aggravated Cruelty to Animals
4) Maliciously administers poison to an animal, or exposes an
animal to any poisonous substance, with the intent that the
substance be taken or swallowed by the animal; or
5) Having intentionally exercised custody, control,
possession, or ownership of an animal, maliciously fails to
provide to such animal adequate food, water, sanitary
conditions, or ventilation that is consistent with what a
reasonable person of ordinary knowledge would believe is
the normal requirement and feeding habit for such
animal's size, species, breed, age, and physical condition to
the extent that the death of such animal results or a member of
its body is rendered useless or is seriously disfigured.
• 1st misdemeanor offense – as a
• 2nd or subsequent – as a misdemeanor of a
high and aggravated nature.
• 1st felony offense – 1 to 5 years, up to
• 2nd or subsequent – 1 to 10 years, up to
Prior Convictions
• Both felony and misdemeanor recidivism
provision now includes:
– Any other state, territory, possession,
dominion of the United States;
– Any foreign nation recognized by the US;
– Adjudication of a juvenile;
***So long as the act would constitute our
offense, it counts.
• All the regular justifications (justification,
defense of self or others, rendering
assistance to law enforcement, defense of
habitation, etc.)
“reasonably believes that such act is necessary to
defend against an imminent threat of injury or
damage to any person, other animal, or
Which Justifications Do NOT
Exceptions to Justification:
– Committing or attempting to commit a
– Committing or attempting a trespass or
tortious act.
– The animal is not lawfully on the
Identity Theft – Consumer Protection
HB 915 Rep. Clark (1/1/15)
• Amends Title 10 Related to Identity Theft
and Security Freezes.
– “Protected Consumer” – under 16 or guardian
requesting on behalf of minor under 16.
– “Security freeze for a protected consumer”
• when no record exists, the consumer credit
reporting agency can release anything.
• If they have a record, they are restricted from
releasing that information.
When to Freeze
• New OCGA § 10-1-914.1
“(a) A consumer credit reporting agency shall
place a security freeze for a protected consumer
if the consumer credit reporting agency receives a
request from the protected consumer's representative
for the placement of the security freeze and the
protected consumer's representative:”
Requirements of Request
1) Submits the request to the consumer credit reporting
agency at the address or other point of contact and in
the manner specified by the consumer credit reporting
2) Provides to the consumer credit reporting agency
sufficient proof of identification of the protected consumer and
the representative;
3) Provides to the consumer credit reporting agency
sufficient proof of authority to act on behalf of the
protected consumer; and
4) Pays to the consumer credit reporting agency a fee as
provided in subsection (g) of this Code section.
Consumer Credit Agency
• Create a file if they do not have one.
– NOTE: A record created under this subsection
shall not be used to consider the protected
consumer's creditworthiness, credit standing,
credit capacity, character, general reputation,
personal characteristics, or mode of living.
• Place a freeze (within 30 days).
• Do not release any information.
Duration and Fees
• Duration;
– Request that it be removed;
• A reasonable fee, not to exceed $10 for
each placement or removal. Unless:
– Police report establishing identity fraud.
– The consumer credit reporting agency has a
consumer credit file on the protected
Georgia 911Medical Amnesty Law
HB 965 – Rep. Sharon Cooper (4/24/14)
• Creates new O.C.G.A. § 16-13-5 which
provides immunity from prosecution for
persons seeking in good faith medical
assistance for a drug overdose (or Alcohol) or
for a person who has witnessed another person
overdosing and obtains medical assistance for
that other person.
Limitations on Immunity
• Simple possession of 4 grams/milliliters or less
under 16-13-30 (a);
• Possession of less than an ounce of marijuana;
• Possession or use of drug related objects under
• Violating O.C.G.A. § 3-3-23 related to:
Purchase or possession of alcohol
Misrepresent age to purchase alcohol
Act as an agent to purchase alcohol for under 21
Using a false identification to purchase alcohol
Nozolene – Overdose Drug
• Creates a new O.C.G.A. § 26-4-116.2 to
provide for licensed Georgia doctors to
prescribe opioid antagonists (brand name
Nozolene) to certain individuals, entities
and pharmacies to dispense such opioid
(used to counter and reverse an opioid overdose)
Who Can Have It?
• It may be prescribed/dispensed to
individuals, entities and emergency medical
technicians for use in treating such
• The Code section also provides immunity
from civil and criminal liability or
professional licensing sanctions when the
actions taken by the accused are authorized
by this new Code section.
Juries and Grand Juries
HB 1078 Rep. Trey Kelly (4/29/14)
• Clarifies jury provisions so that there is clear the
distinction between trial and grand juries.
• Specific issue addressed:
– Amends OCGA § 15-12-62.1 to require that grand juries
must be selected from the county master list the same ways
as trial juries. The current law said the clerk was to
select grand jurors "in the manner specified by and in
accordance with the rules adopted by the Supreme
Court," but the Court never adopted any rules.
Grand Jury Questioned and Oath
• Creates a new OCGA § 15-12-66:
– “that judges who empanel grand juries and the
district attorneys have the right to question potential grand
jurors, under oath, about their qualifications to serve before
they are sworn in as jurors and that the presiding judge
must excuse those persons who are not eligible to
– It also prescribes the oath that potential grand jurors
will have to be administered.”
What Happens if You Run Out of
Grand Jurors?
• OCGA § 15-12-66.1 allows individuals
who have been already summoned as trial
jurors to be switched to grand jury duty if
not enough qualified grand jurors show
up on the first day of the term.
Criminal Justice Reform IV
SB 364 Sen. Jesse Stone (4/28/14)(7/1/14)
• Parts II through III of the Act amend the
definition in 16-13-30 (m) of "solid
substance," included in the version of 1613-30.(7/1/14)
• Juvenile Court Revisions, specifically
related to Children In Need of Services
(CHINS) and Delinquency proceedings.
• Any CHINS order – must be entered
before the child turns 18.
• Brings modifications of orders entered
under the old juvenile code under the
provisions of the new Code.
• Several changes to both Dependency
Proceedings and Termination of Parental
Procedural Changes to CHINS
• Shortens the time limits for continued
custody hearings;
• Expands O.C.G.A. § 15-11-420 regarding
who may file a CHINS petition to include
"a parent, a guardian, a legal custodian, a
law enforcement officer, a guardian ad
litem, or an attorney;“
Delinquency Proceedings
• Amends O.C.G.A. § 15-11-476 (a) to eliminate the
requirement that the court appoint a CASA to act as
a guardian ad litem whenever possible.
• Amends O.C.G.A. § 15-11-531 to require that the
petition must be served 72 hours before a hearing;
• Amends O.C.G.A. § 15-11-582 to require that the
adjudication hearing be held (rather than scheduled)
within 10 days of the filing of the petition
Delinquency Proceedings (cont.)
• Amends O.C.G.A. § 15-11-602(d)(3) and 15-11604(a), respectively, to require that a child be
given credit for any time spent in a secure or
non-secure residential facility (including any
time spent in a facility for treatment of a
physical or mental disability);
• Amends O.C.G.A. § 15-11-656 (d) to allow
placement of a child deemed incompetent in a
"crisis stabilization unit" or a DBHDD facility.
Criminal Justice Reform IV
SB 365 Sen. Jesse Stone (7/1/14)
• Juvenile - amends O.C.G.A. § 15-11-600, to
require a court to have a hearing to determine
whether or not a child who has committed a
delinquent act should receive treatment, remain in
their home, or if reasonable efforts have been made to
prevent a child’s removal from their home.
• The Bill requires a court to make findings “based
on such determinations.”
Procedural Clean-ups
• Amends O.C.G.A. §15-11- 620 to provide
rules for calculating the 60-day hearing
requirement when a child is placed in a
non-secure facility, a juvenile detention
facility or is moved from a secure facility
to a foster home.
Review Hearings on Placement
• Amends O.C.G.A. 15-11-621, which
governs periodic review hearings to
require a periodic review hearing before an
administrative review panel within six months
of being placed in a non-secure facility and
every six months thereafter for any child that
the child remains in such facility.
Permanency Plans
• Creates an outline for a “permanency
plan” under O.C.G.A. § 15-11-623 – “a
specific written plan designed to reunify a
child with their family or ensure that a child
quickly attains a substitute long-term home.”
• Subsection (b) sets the requirements for a
court to hold a hearing to review the
Permanency Plan for children committed to
the Department of Juvenile Justice when it is
not in the child’s best interest to return to
their home and is placed in a non-secure
• Follow up every 12 months thereafter.
Certified Rehabilitated or Pardoned
• The Bill also creates a rebuttable presumption that
issuance of a certificate (Program and Treatment
Completion Certificate (PTCC) – issued by the Board
of Corrections), or the granting of a pardon by the
State Board of Pardons and Paroles that an
employer or school has exercised due care in the
hiring, retaining, licensing or leasing, admitting
to a school or program of an offender with a
Drug Court and Driver’s License
• This Bill amends O.C.G.A. § 40-5-76 to allow a
presiding judge of a drug court division to “order
the suspension of a defendant’s driver’s license for the
defendant’s violation of probation. A court may also
order restoration of a suspended driver’s license or
issue a limited driving permit if the underlying
charge is not related to the operation of a motor
Journey Ann Cowart Act
Child Fatality Review
• The Bill also amends OCGA § 15-11-743, 19-15-1 to move
responsibility for coordinating and supervising the work
of the Georgia Child Fatality Review Panel from the
Child Advocate for the Protection of Children to the GBI
and provides that “the GBI is to assist local child fatality
review committees with the investigation of child deaths.”
• It amends OCGA § 19-15-2 so that the protocol
developed by the local child abuse protocol committees
covers the prosecution of child abuse cases as well as
their investigation.
Retail Theft – “Refund Fraud”
SB 382 Sen. Jeff Mullis (7/1/14)
New O.C.G.A. § 16-8-14.1:
• (a)(1) makes it unlawful “to use a stolen, false or
forged identification for the purpose of obtaining a
refund from a retail establishment.”
• (a) (2) makes it “unlawful for a person to obtain
a refund in the form of cash, check, credit card or
in any other form using another's driver's license
or using one that contains false information.”
• $500 and under – misdemeanor.
• Over $500 – felony 1 to 10.
• 3 stores, 1 county, and 7 days or less – and the aggregate
value of more than $500 – felony 1 to 10.
• Theft over a period of 180 days and the aggregate value
of more than $500 – felony 1 to 10.
• 2nd offense (of any violation) – minimum fine of $500.
• 3rd offense – felony (at least 30 days in prison) and may
order a psychological evaluation and treatment.
• 4th and subsequent – felony 1 to 10 (with 1 year
mandatory minimum in prison.
Value, Venue and Restitution
• Value – “actual retail price of the property at the
time and place of the offense.”
• Venue in Magistrate Court and Municipal Court
for misdemeanor refund fraud.
• O.C.G.A. § 51-10-6 allows a property owner to
recover $300.00 or three times the value of the
item taken as a result of a theft.
HB 251
Selling of Cigarettes, Tobacco and Other
Related Objects.
– Any noncombustible product containing nicotine
that is intended for human consumption, whether
chewed, absorbed, dissolved, or ingested by any
other means.
HB 251
– means any cigars, little cigars, granulated, plug cut,
crimp cut, ready rubbed, and other smoking tobacco;
snuff or snuff powder; cavendish; plug and twist
tobacco; fine-cut and other chewing tobaccos; shorts;
refuse scraps; clippings, cuttings, and sweepings of
tobacco; and other kinds and forms of tobacco,
prepared in such manner as to be suitable for
chewing or smoking in a pipe or otherwise, or both
for chewing and smoking.
HB 251
– any noncombustible product containing nicotine that
employs a heating element, power source, electronic
circuit, or other electronic, chemical, or mechanical
means, regardless of shape or size, that can be used to
produce vapor from nicotine in a solution or other
HB 251
• No individual under the age of 18 may
purchase any of these items.
• Any place of business which sells shall post a
sign which shall contain the following
statement: “Sale of Cigarettes, Tobacco,
Tobacco Products, Tobacco Related Objects,
Alternative Nicotine Products or Vapor
Products to Persons Under 18 Years of Age is
Prohibited by Law.”
HB 251
• Code Sections involved are 16-12-170, 16-12171, 16-12-172, 16-12-173, 16-12,174 and
HB 459
Prohibits the Operation of Motor Vehicles in
the Passing Lane at Slow Speeds
• Adds subsection ( c ) & ( d ) to 40-6-184.
• Prohibits the operation of a motor vehicle in
the left-hand lane of a controlled access
highway except to pass another vehicle.
HB 774
• Revises Code Section 40-6-21 (a)(2)(3)
relating to the meaning of traffic signals, as
• (2) Steady Yellow Yellow indications shall
have the following meanings……….
HB 774
• ( C ) is brand new to the section
• (C) Traffic, except pedestrians, facing a
flashing YELLOW ARROW signal may
proceed in the direction of the arrow.
Vehicular traffic turning shall yield the right
of way to approaching vehicles. Vehicular
traffic shall stop and remain stopped to allow
a pedestrian to cross the roadway within a
crosswalk when the pedestrian is lawfully
within the intersection or an adjacent
crosswalk at the time such signal is exhibited,
HB 774
• when the pedestrian is upon the half of the
roadway upon which the vehicle is traveling, or
when the pedestrian is approaching and is within
one lane of the half of the roadway on which the
vehicle is traveling or onto which it is turning. For
the purposes of this subparagraph, 'half of the
roadway' means all traffic lanes carrying traffic in
one direction of travel; and
• (3) Steady red Red………….
HB 774
• This is brand new to the section.
• (H) Traffic, except pedestrians, facing a flashing
RED ARROW signal, after stopping as provided
in subparagraph (A) of this paragraph, may
make a right turn but shall stop and remain
stopped for pedestrians and yield the right of
way to other traffic proceeding as directed by
the signal at such intersection."
HB 774
• Code Section 40-6-181 (b) (3) is also
revised as follows:
• (3) Sixty-five Seventy miles per hour on a
highway on the federal interstate system
which is inside of an urbanized area of
50,000 population or more, provided that
such speed limit is designated by
appropriate signs;
HB 870 & HR 1183
• Creates OCGA §15-21-151
– requires an additional 10% of fines for convictions
of Reckless Driving to be deposited into Brain and
Spinal Injury Trust Fund
• The Fund previously established by OCGA
§15-21-142 regarding extra fine in DUI cases
• HB 870 requires a constitutional amendment
allowing state legislature to add the penalty to
Reckless Driving cases before it can be
• HR 1183 allows for a vote to amend the State
HB 872
• New law OCGA §24-5-510
• Communications between a law
enforcement officer and departmentally
appointed peer counselor are privileged.
– Extends to communication between the
officer’s immediate family and the peer
HB 872
• Exceptions
– Person communicating with peer counselor
consents to disclosure; if deceased, consent given
by executor or administrator; if no executor or
administrator, consent by family member
– Compelled by court order
– Peer counselor involved with incident or not
acting in official role of peer counselor when
communication made
– Officer or family member charged with a crime
– Reporting suspected child abuse as required in
OCGA §19-7-5
HB 877
• Modifies definitions in OCGA §40-1-1
– ATV-4 low pressure tires, straddle seat, handlebars
– Golf car/golf cart-avg. speed <15 MPH; designed
to carry persons/equip. for purpose of playing golf
– PTV –minimum 3 wheels; unladen weight <1301
lbs; top speed < 20 MPH or minimum 4 wheels,
maximum unladen weight <1376 lbs; top speed <
20 mph and designed for no more than 8 persons
HB 877
– Manufacturer- added anyone doing business in
state engaged in manufacture or modification of
PTV’s adversely affecting safe operation.
– Shared use path-separate pathway from normal
motor vehicles for bicycles, wheel chairs, other
motorized and non-motorized authorized users
• OCGA §40-2-20
– Licensing and registration not required for electric powered
PTV’s, mopeds, or any golf cars
HB 877
• OCGA §§40-3-4 & 40-3-30.1
– PTV’s shall not be titled or registered
• OCGA §40-4-2 – RE: confidential part
– Identifying numbers not required for PTV parts
• OCGA §40-4-5.1
– PTV’s manufactured after July 1, 2014 must have VIN,
manufacturer, model name or code, contact info, nominal
system voltage, fuel type, and load capacity
HB 877
• OCGA §40-5-20
– Includes driver’s license exemption as described in Chapter 6
• OCGA §40-5-21
– Driver’s license not required to operate PTV on publicly
maintained way of travel exclusively for use by PTV’s or
crossing a public roadway at designated crossing pursuant to
PTV plan authorized by a local authority.
• OCGA §40-6-330.1
– Required equipment for PTV’s
HB 877
• OCGA §40-6-331
– Local authorities can authorize use of PTV’s on
public streets; driver’s license required unless
exempted by local authority
– Operation restrictions generally
• Multiple statutes regarding local authorities
establishing or regulating PTV plans and
• OCGA §40-8-1 exempts PTV’s from general
equipment requirements for motor vehicles
HB 898
• OCGA §49-4B-1 – Interstate Compact for
• OCGA §49-4B-2 – Authorizes Governor to sign
• The return of juveniles to their “home” state
when requested
– Juveniles absconding from probation or parole, or
other required supervision
– Runaways
HB 898
• Interstate Commission can promulgate rules to
effect purposes and obligation enumerated in the
compact that have the force and effect of statutory
– Establish standards and procedures for compliance in
carrying out compact
– Procedures for challenging proposed rules
– State legislature can reject certain rules
• State Council does not include reps of local
– No specific mention of who is responsible for
transport of juveniles
HB 899
• OCGA §31-7-12.1 – DA can file petition to
stop operation of unlicensed personal care
• OCGA §31-7-12
– First offense is misdemeanor unless in conjunction with
abuse, neglect or exploitation which would be a felony
(1 – 5 yrs.)
– Second or subsequent offense is felony (1 – 10 yrs.)
SB 23 ~ 35-1-18
Stacey Nicole English Act
– Prohibits a minimum waiting period
to accept a missing person’s report (new code)
– May use Mattie’s Call alert system if:
• Known medical condition may cause person to become
incapacitated and lead to serious bodily injury or death
– Alternative emergency contact # with DDS for official
SB 65 ~ 37-3
Program to Authorize Licensed
Professional Counselors to Sign
Mental Health Commitment Orders
• Licensed professional counselor: any person
authorized under law to practice as LPC
• Allows a LPC to sign 1013/2013 as any
psychologist clinical social worker, or clinical
nurse specialist in psychiatric/mental health,
as by a physician; 37-3-41 until March 15, 2015
SB 320 ~ 15-1-17
Creation of Veterans Court Division
• Authorizes courts to create veterans
– Similar to drug and mental health court
• Combines judicial supervision,
treatment of veterans, and drug &
mental health testing
• Former members of armed forces or
National Guard
• Some crimes excluded from this court
• Provides for supervised reentry for
veterans released from prison
SB 324 ~ 35-8-2
Peace officer includes DJJ employees who provide
supervision of delinquent children under intensive supervision
in the community
Relating to definitions for employing and training of peace officers, is
amended by revising subparagraph (B.1) of paragraph (8) as follows:
(B.1) Personnel who are authorized to exercise the power of arrest, who
are employees of or appointed by the Department of Juvenile Justice, and
whose full-time duties include the preservation of public order, the
protection of life and property, the detection of crime, or the supervision
of delinquent children in the department's institutions, facilities, or
programs, or the supervision of delinquent children under intensive
supervision in the community.
SB 358 ~35-3-83
Missing Children Information Center
• Foster children must be treated as a missing
child, meeting requirements if reported by:
– Parent or guardian – now includes foster parent,
foster family member, DFCS
– Caretaker
– Governmental unit responsible for the child or
other person with legal custody of the child

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