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Thursday, November 21, 2019

Botanical garden in Atlanta wants to ban firearms; Courts are asked if it can

State Court

By Charmaine Little | Oct 21, 2019

Concealedcarry

ATLANTA (Legal Newsline) – The Supreme Court of Georgia has sent a case regarding whether the Atlanta Botanical Garden can prohibit firearms on its property back to a lower court.

The garden, which leases its land from the city Atlanta, wants to implement a policy that would ban the possession of firearms from visitors and guests like a man named Philip Evans. Because of OCGA section 16-11-127(c), Evans alleges he allowed to carry his firearm at the Garden. But the Garden argues that the statute says it is allowed “to exclude or eject a person who is in possession of a weapon… on their private property,” according to the Oct. 7 opinion.

Still, the Supreme Court said the private standing of the garden is still in question and reversed the Court of Appeals' decision that affirmed the Fulton County Superior Court's award of summary judgment in the Garden's favor. The case was remanded for further proceedings.

The Garden said that its status as a private entity paired with its lease with the city makes the property in question “private property” via OCGA section 16-11-127(c).

“But the simple fact that a lease held by a private entity does not summarily answer the question of whether the property governed by the lease is ‘private property,'" Justice Charlie Bethel wrote.

Instead, one has to look at the terms of lease to evaluate if the lease established an estate the private lessee to the point that the property is categorized as private for the lease’s duration. Even though the Garden’s agreement with the city permits the Garden to utilize and even enjoy the property, it’s still not clear if the terms of the lease green-light an estate to the Garden.

“If the lease does not grant an estate to the Garden, the Garden merely has a usufruct,” Bethel wrote.

If this is the reality, the leased property would be considered public property “because the present estate in the property has always been held by the city of Atlanta, a public entity,” the ruling states.

Since the agreement isn’t in the record and the issue is on its actual meaning, Bethel wrote the Garden is not owed summary judgment in its favor. It’s up to the court to find out if the lease establishes an estate for years or a usufruct. 

“That has not been done in this case and cannot be done on the record before us,” Bethel wrote.

Presiding Justice David E. Nahmias and justices Robert Benham, Keith R. Blackwell, Michael P. Boggs and Sarah H. Warren concurred.

Chief Justice Harold D. Melton did not participate and Justice John J. Ellington was disqualified.

Justice Nels S.D. Peterson concurred in a separate opinion as it relates to the right to bear arms.

“I recognize that the General Assembly enacted the amendment in furtherance of the right to keep and bear arms," Peterson wrote. "This is a right that has been jealously guarded in this state. But each of the branches of state government must protect that right without jeopardizing other equally fundamental rights. 

"It should not go without noting that the consequence of our decision today is that the amendment likely was unconstitutional in almost all of its applications when it first became effective, and probably in some that still remain.”

Evans holds a Georgia weapons carry license and visited the Garden in 2014 openly carrying a handgun in a holster. The ruling states he was stopped by a Garden employee on his second visit, told weapons were prohibited on the premises, and was escorted from the property by an Atlanta Police Department officer.

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