Contradiction?

Discussion in 'GA Laws and Politics' started by SigP229, Oct 25, 2007.

  1. SigP229

    SigP229 Active Member

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    It was mentioned in one of the threads that a professor who was also a LEO carried his gun to class every day. 16-11-130 says that he is exempt from 16-11-126 thru 16-11-128.....but 16-11-127.1 states (c) The provisions of this Code section shall not apply to:(5) The following persons, when acting in the performance of their official duties or when en route to or from their official duties: (A) A peace officer as defined by Code Section 35-8-2;
    I thought that I had read someplace where, when there is a conflict between laws where one is broad in nature and one that is direct where no interpretation is needed....? They both seem pretty direct.
    I'm probably missing something here as usual.

    :ianal: :?
     
  2. GAGunOwner

    GAGunOwner Active Member

    1) What cop is going to arrest another cop who also happens to be a professor at the school and who is not causing a disturbance?

    2) 16-11-130 says that whatever 16-11-127.1 says doesn't even come into play. That would definately be the defense I'd use if I were counsel. There is definately a major conflict here.

    3) The federal LEOSA bill could come into play.

    4) While I've not seen any legal evidence to support this claim, it is widely accepted that full-time police officers are never "off-duty" in a complete sense.
     

  3. Gunstar1

    Gunstar1 Administrator

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    I think SigP229 is correct, that it is technically against the law.

    However, first another LEO must arrest him, then get an anti-leo judge that would rule against him, not likely to happen.
     
  4. GAGunOwner

    GAGunOwner Active Member

    Wouldn't fed law (LEOSA) trump state law here? I always forget the places that can be off-limits to LEOs and qualified retired LEOs.
     
  5. GAGunOwner

    GAGunOwner Active Member

    The D.A. probably wouldn't waste his or her time.

    A jury might not even convict.
     
  6. Gunstar1

    Gunstar1 Administrator

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    I don't think so.
    926B
     
  7. Gunstar1

    Gunstar1 Administrator

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    That I absolutly agree with.
     
  8. gsusnake

    gsusnake Token Liberal Hippie

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    I don't really think anyone else in the class realizes that he carries.

    I just noticed the bulge, and the belt loops right above that bulge, and very politely asked him after class if he was carrying. He doesn't do it every day.

    I shouldn't have said anything in the first place, as I don't want to get the guy in trouble. He's a great cop and a great teacher, and a great guy to boot.
     
  9. GAGunOwner

    GAGunOwner Active Member

    Ahh...but it looks like LEOSA would apply at a private school! 8)
     
  10. GAGunOwner

    GAGunOwner Active Member

    There are probably schools that would fire a professor who carried to class even if the professor was a LEO. :x
     
  11. ptsmith24

    ptsmith24 New Member

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    Why would he get in trouble? Is he not exempt from the law? Or is there a school rule for stuff like that?
     
  12. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    See the first post in this thread.

    In answer to the original post, it certainly appears to be a case of passing a law without being aware of what the existing law already says.

    There is a concept in the law that the newer and more detailed law will superced the older and more general law, but there is also a presumption in criminal law that ambiguities should be construed against the government and in favor of the accused. Which concept wins out probably has to do with how your judge "feels" about guns and people who carry them.
     
  13. GACop

    GACop Member

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    From OCGA 16-11-130:

    In addition, any such sheriff, retired sheriff, deputy sheriff, retired deputy sheriff, active or retired law enforcement chief executive, or other law enforcement officer referred to in this subsection shall be authorized to carry a pistol or revolver on or off duty anywhere within the state and the provisions of Code Sections 16-11-126 through 16-11-128 shall not apply to the carrying of such firearms.

    Until 16-11-130 gets repealed, I would think the above statement would pretty much prevent prosecution under any state laws regarding the carrying of handguns.

    Also, 16-11-130 shows it was updated as recent as 2006. 16-11-127.1 shows it was last updated in 2003.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Like I said:

     
  15. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    They added part time judges (and tried to add themselves, which, thankfully, failed).
     
  16. Gunstar1

    Gunstar1 Administrator

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    Probably, but that is not a forgone conclusion. Most of the time a specific law pertaining to that code section alone will overcome any general code regarding the same topic.

    The law says a plea of nolo contendere (cannot be used to determine guilt), first offender and some pardons will restore all rights including guns. However the law on getting a GFL says that if convicted of a drug offense that you are convited even with a:

    The law is applied differently in that one code section than any other. 127.1 could be said to restrict officers to on duty only if at school. It still means exemption of the public gatherings, the GFL license requirment, holster requirment, and the rest.

    Again it is highly unlikely, but a person in the wrong jurisdiction and extreamly liberal judge and DA and you could find some trouble. All because the legislature did not pay attention to what they were passing.

    As for when they were passed, you would need to see when the exemption for LEOs were added to 130 and 127.1. Then you could tell which one overcame the other. Last modification does not matter unless it deals specifically with the topic at hand, namely LEOs and not judges (which was what 130 recently changed).
     
  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Let's make this really interesting. Everybody look at the last paragraph of O.C.G.A. 16-11-127.2, which was passed very recently and has its own exemptions and points to the exemptions in the school law but not to the exemptions in 130! :shock:
     
  18. Gunstar1

    Gunstar1 Administrator

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    All because the legislature did not pay attention to what they were passing.
     
  19. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Which law is more recent?

    One rule of statutory construction, and usually an explicit part of the text of every new law passed, is that if there's anything conflicting between the new law and any existing laws, the contradictory portions of the old law are hereby repealed by the new law.

    So that brings us to a matter of historical research: On the date in question (the day this college professor / L.E.O. packed his pistol on school grounds) what was the most recent expression of the will and intent of the legislature?

    1.) 16-11-127.1, which appears to criminalze his conduct without any applicable exemption or exception for off-duty cops?

    .... or....

    2.) 16-11-130, which clearly says that any law from sections 126 thru 129 just won't apply to police, on or off duty?
     
  20. Gunstar1

    Gunstar1 Administrator

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    Re: Which law is more recent?

    As MP just posted... 127.2 specifically references 127.1's on duty requirment. Which means 127.2 is on duty only, as it was passed later than 130.

    So either 127.1 and the recently passed (2006) 127.2 are both invalid (127.2 would be invalid for relying on an invalid 127.1 exemption) or 130 is not an all-exempting code anymore.

    Here is 127.2's bill http://www.legis.state.ga.us/legis/2005 ... /sb532.htm

    Clear as mud to me.