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Georgia Supreme Court upholds gun carry denial because of nolo plea

A Georgia man who pleaded no contest to felony charges in Florida is not entitled to gun carry permit

Georgia Supreme Court Justice Carol Hunstein, in writing the high court’s opinion, said a Quitman County probate judge did not err when he denied a gun-carry permit to a man who pleaded nolo to felony weapons charges in 1994 in Florida. (Special photo)

Georgia Supreme Court Justice Carol Hunstein, in writing the high court’s opinion, said a Quitman County probate judge did not err when he denied a gun-carry permit to a man who pleaded nolo to felony weapons charges in 1994 in Florida. (Special photo)

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Georgia Supreme Court Judtice Keith Blackwell, in a concurring opinion, noted that finding a factual basis for the Florida plea, which resulted in the appellant being denied the ability to obtain a gun-carry permit. (Special photo)

ATLANTA — The Georgia Supreme Court on Monday upheld a Quitman County court ruling in which a Georgia gun license was denied to a man who pleaded no contest to a charge of aggravated assault with a deadly weapon when he was 18 years old.

According to a summary Monday from the high court, James Hertz, a nuclear power engineer, pleaded “nolo contendere” in Florida in 1994 to five felony charges — three counts of aggravated assault with a deadly weapon, one count of shooting from a vehicle and one count of possession of a short-barrel weapon.

Nolo contendere, the court said, means “no contest” and is an alternative to a guilty or not guilty plea that is often offered as part of a plea bargain, and means the person is neither admitting the charges nor contesting them.

As a result of Hertz’s plea, the Florida court withheld issuing a judgment on the charges and sentenced Hertz to three years’ of probation, which Hertz successfully completed.

In September 2012, Hertz applied to Quitman County Probate Judge Andrew Bennett for a “weapons carry license,” an application that was denied on Sept. 20, 2012, denied based on his 1994 no-contest pleas to the Florida felony charges. Hertz sued Bennett, seeking a writ of mandamus to force the judge to issue him the license.

Following a hearing, the trial court ruled that Hertz’s pleas of nolo contendere made him ineligible for a Georgia weapons license under the Official Code of Georgia, which states that “No weapons carry license shall be issued to:…[a]ny person who has been convicted of a felony by a court of this state or any other state.” The statute defines “convicted” as “a plea of guilty or a finding of guilt by a court of competent jurisdiction or the acceptance of a plea of nolo contendere …”

Hertz then appealed to the state Supreme Court, contending that a nolo plea in Florida that results in “adjudication withheld” is equivalent to a nolo plea in Georgia that results in first-offender treatment. Undre the Georgia Code, a person who successfully completes first-offender treatment is eligible for a weapons carry license unless another license exception applies. He also argued that denial of the license violated his constitutional right to keep and bear arms.

In Monday’s opinion, Justice Carol Hunstein wrote that “[b]ecause Hertz’s nolo contendere plea makes him ineligible for a weapons carry license under Georgia law, and the statute as applied to him does not violate the United States or Georgia Constitutions, we affirm” the Quitman County Superior Court’s decision.

“Even if Hertz’s aggravated assault and other non-drug crimes had been resolved by first offender treatment in Georgia, he would not be eligible for a weapons carry license,” Hunstein said in the 17-page opinion. “The first offender provision in subsection (b) (3) does not extend to first offender treatment for any offense, but rather is limited to convictions of the controlled substance offenses listed in subparagraphs (F) and (I) of subsection (b) (2).”

As to Hertz’s challenge that the denial of a weapons license violates his federal right to bear arms, the “law being challenged here does not involve the core Second Amendment right to possess a firearm for self-defense in one’s home,” the opinion says. “Under [Official Code of Georgia] § 16-11-126, Hertz has the right to possess a handgun inside his home, motor vehicle, or place of business without a weapons carry license.”

The Georgia Code for a carry permit “regulates the ability of citizens to carry a weapon in public,” the justice wrote. “The goal is to protect the safety of individuals who are in public places, which has been identified as a substantial government interest.

“The statute meets this public safety objective by banning the carrying of a handgun without a license only in public, not on one’s property or inside one’s home, and by limiting the disqualification to certain classes of people, including those who are younger than 21 years of age, mentally ill, or prior violators of the law. Of particular relevance here, the statute makes ineligible persons who have previously been found by a court to have committed a felony or carried guns illegally.”

Contrary to what Hertz contended, the high court determined, he was not a law-abiding citizen without a criminal record when he applied for the gun license. “In 1994, Hertz appeared in open court and acknowledged that the State could prove that he had committed serious felonies involving firearms …” the opinion stated. “Before the Florida court accepted his plea of nolo contendere, the trial judge had to determine that there was a factual basis for the plea and that Hertz was entering it voluntarily. Given this criminal history, we hold that the probate judge did not violate Hertz’s Second Amendment right to bear arms by denying his application for a license to possess a weapon in public.”

The court also found against Hertz’s argument that the statute violates Georgia’s Constitution. “Under these circumstances, we hold that denying him a license to carry a weapon outside his home, car, and place of business does not violate his state constitutional right to bear arms,” the opinion says.

In a concurrence, Justice Keith Blackwell wrote that he agreed with the opinion, but wants to emphasize that “no one should misunderstand the Court to suggest that constitutional guarantees extend only as far as the home.”

“To the contrary,” he wrote, “the Court today applies intermediate scrutiny to [Official Code of Georgia] § 16-11-129, and in so doing, it acknowledges that the constitutional guarantees secure a right to carry firearms in public places, even if that right might be more limited than the right to keep firearms in the home.”

“Second, our decision today is a limited one,” said the concurrence, which was joined by Presiding Justice P. Harris Hines and Justice David Nahmias. “[A]lthough the court did not enter a formal adjudication of guilt, it found a factual basis for the plea … In these peculiar circumstances, the Court concludes that the State of Georgia may – consistent with the constitutional guarantees of the right to keep and bear arms – deny Hertz a license to carry firearms in a public place.”