Georgia’s New Weapons Laws 2014 Legislative Session Presented by: J. Dale Mann [[email protected]] 478-957-5849 Special acknowledgement to the Georgia Prosecuting Attorneys’ Council 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 fireworks” NOTE: Differences in HB 826 and HB 60. Different Definitions “BUS” – 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 “WEAPONS” – 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 business.” – “long gun …” but if loaded “shall only be carried in an open and fully exposed manner” – “handgun …that is enclosed in a case and unloaded” 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 license; • 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 • "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) GOVERNMENT BUILDING DEFINED 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) GOVERNMENT ENTITY DEFINED • “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) NEW RIGHTS OF A LICENSE HOLDER 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 programs; (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. RIGHT TO RETREAT • “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 building?” – PAC’s Advice: • Establish your restricted access at the point of ingress; • 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 GENERALLY • “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) PLACE OF WORSHIP • Forbidden unless the governing body or authority of the place of worship permits the carrying of weapons or long guns by license holders. • 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) BARS, TAVERNS, NIGHTCLUBS • 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 3) b) c) 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) SCHOOLS ABILITY TO AUTHORIZE • 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; AUTHORIZED BY A TEACHER? • 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; Training; 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. AIRPORTS 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 • SHALL NOT BE GUILTY • • • • 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 LOCAL GOVERNMENT ORDINANCES “(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 NEW PROVISIONS 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 Defenses • 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.” HOUSING PROJECTS 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”. 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.” WHO CAN GET A PERMIT NOW? • 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 service; O.C.G.A. § 16-11-129 NO LONGER PREVENTS THE ISSUANCE OF A PERMIT • (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) MENTAL ILLNESS PREVENTS PERMITTING CURRENT LAW: – “(J) … hospitalized as an inpatient in any mental hospital or alcohol drug treatment center within the five years immediately preceding the application”. NEW: – “(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 Exceptions • 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 attorney. • Establishes procedures for a hearing. O.C.G.A. § 16-11-129 PROCEDURE FOR GETTING A PERMIT ANYWAY • “(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 provisions. O.C.G.A. § 16-11-129 (j) FINGERPRINTING • Fingerprinting shall not be required for applicants seeking temporary renewal licenses or renewal license. O.C.G.A. § 16-11-129 (c) BIG BROTHER • (k) Data base prohibition. A person or entity shall not create or maintain a multijurisdictional data base of information regarding persons issued weapons carry licenses. • (l) Verification of license. “…shall not be authorized to provide any further information regarding license holders. NOTE: exception for subpoena or court order, or for public safety purposes – can verify legitimacy and validity. O.C.G.A. § 16-11-129 (k) & (i) Silencers or Suppressors OCGA § 27-3-4 • Generally prohibited from hunting, however; if… – 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 Georgia) 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 dealer. 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 GEORGIACARRY.ORG, INC., and MAHLON THEOBALD, Plaintiffs, VS. BRIAN KABLER Defendant. Case 2:12-cv-00171-LGW-JEG Document 28 Decided and Filed 02/27/14 FACTUAL BACKGROUND 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 stop. PROCEDURAL BACKGROUND On September 21, 2012, Plaintiffs GeorgiaCarry.org ("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 unreasonable seizure. Id. Plaintiffs also contend that Defendant violated O.C.G.A. §§ 16-11-173 and 51-7-20. Plaintiff Theobald seeks damages from Defendant in his individual capacity… Both Plaintiffs seek declaratory and injunctive relief against Defendant in his official capacity. 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. 1995)) 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. b) 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. CONCLUSION 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 website. 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 consideration. 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. • • • • • • • • • • • • • • • • • • AFFIRMATION ______________________________________ 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 business. 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 ACKNOWLEDGMENT _________________________________________ 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) which: “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 examiner.” 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 • CANNOT CONVERT DECEASED’S PROPERTY TO OWN USE ~ DUH • 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 Degree • § 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 years. 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, except: “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 Custody 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 section. Superior Court has Exclusive Jurisdiction Section 2-4 adds 2nd degree murder to OCGA § 15-11-560, related to concurrent and original jurisdiction of the Superior Court. 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 available. 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 sheriff;” 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, 2014. 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 Assault 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. Sentencing 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.” Punishment • 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. Punishment “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 facility; – (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 clerk.“ 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 circumstances; 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 child; – (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 felonies. 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 request. 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 result. ***This language came from the pattern jury charge for “malice.” Cruelty to Animals (Misdemeanor) 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 (misdemeanor) 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 (Felony) 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 (Felony) 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. Punishment • 1st misdemeanor offense – as a misdemeanor. • 2nd or subsequent – as a misdemeanor of a high and aggravated nature. • 1st felony offense – 1 to 5 years, up to $15,000. • 2nd or subsequent – 1 to 10 years, up to $100,000. 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. Justification • 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 property”. Which Justifications Do NOT Apply? Exceptions to Justification: – Committing or attempting to commit a crime – Committing or attempting a trespass or tortious act. – The animal is not lawfully on the property. 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 agency; 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 Requirements • 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 consumer. 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 16-13-32.2.; • 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 antagonists. (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 overdoses. • 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 serve.” – 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. CHINS • 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 Rights 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.” When? • 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 facility. • 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 PTCC. 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 vehicle.” 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.” Punishment • $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. Questions? HB 251 Selling of Cigarettes, Tobacco and Other Related Objects. • ALTERNATIVE NICOTINE PRODUCT – Any noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means. HB 251 • TOBACCO PRODUCT – 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 • VAPOR PRODUCT – 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 form. 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 16-12-175. 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 follows: • (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 enforced • HR 1183 allows for a vote to amend the State Constitution 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 counselor 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 numbers – 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 enforcement • OCGA §40-8-1 exempts PTV’s from general equipment requirements for motor vehicles HB 898 • OCGA §49-4B-1 – Interstate Compact for Juveniles • OCGA §49-4B-2 – Authorizes Governor to sign compact • 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 law – 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 government – 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 home • 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 use 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 courts – Similar to drug and mental health court divisions • 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 QUESTIONS?