Court Order - Probate Court May Wait Beyond 60 Days

Discussion in 'GWL News & Information' started by Malum Prohibitum, Aug 9, 2006.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Probate Judge in Coweta May Wait For FBI Fingerprint Based Report

    A Superior Court Judge has ruled that the probate judge for Coweta County may wait beyond the 60 days set forth in O.C.G.A. 16-11-129(d)(4) for the purpose of receiving a fingerprint based report from the FBI, which routinely takes longer than 60 days. The ruling was ostensibly based on “the purpose of the statute, which is to protect the public.â€

    Links to the Order and other public records from this case are available online here: http://www.georgiapacking.org/sccc/

    The Order leaves no outside time by which a probate judge must issue a license.

    The plaintiff and the plaintiff’s attorney (our very own jrm) are considering an appeal.
     

  2. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Purpose of Statute

    The Purpose of the statute was obviously to strike a balance between the right to carry a weapon for self-defense, which is a very important liberty interest of adult citizens of this state, and the State's police power to regulate the carrying of weapons for the benefit of the general public.

    The legislature did not say that "anything goes" so long as the actor is motivated by a benevolent desire to protect the public. The legislature mandated a 60-day time period for the issuance of a license because it has decided that within that 60-day window, the State's interest in protecting the general public from the proliferation of weapons in public areas outweighs the applicant's individual rights and liberty interests in immediately having approval to carry a deadly weapon away from his home, car, or place of business.

    The natural inverse implication here is that BEYOND THE 60-DAY PERIOD, the legislature found that the citizen's right to carry a weapon must have priority over the State's desire to investigate such citizen applicants. The Court should apply the formula for balancing these competing interests that the legislature has set forth, and grant the citizen a firearms license now that more than 60 days have elapsed without any evidence being produced that the applicant is not qualified to hold such a license.
     
  3. kkennett

    kkennett New Member

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    :-k That stinks. Even if the appeal were to be lost, one could get on the record an opinion that would hopefully spell out in no uncertain terms the reasons acceptable for delay. From this forum, it seems as though the local Probate judges delay a good bit for no good reason. At least the opinion might stifle that. Of course, it would be best to just win!
     
  4. Gunstar1

    Gunstar1 Administrator

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    Ok, I have posted the order and supporting briefs.

    What gets me is that to buy a gun the FBI has 3 days to do the instant check and if it is not done the the firearm can be sold. It is then up to the ATF/FBI if something is later found to go find the person and undo the sale.

    Here the FBI has 50 days to process a fingerprint. The probate court has means to revoke the license if something comes up after 60 days. But the Order says the probate court can have an indefinate delay. Don't make any sense to me.
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    If by "here" you mean in the statute (rather than in the order), I have to disagree with the statement. The statute mentions 50 days in only one place - 129(d)(4).

    (4) The law enforcement agency shall notify the judge of the probate court within 50 days, by telephone and in writing, of any findings relating to the applicant which may bear on his or her eligibility for a license or renewal license under the terms of this Code section. When no derogatory information is found on the applicant bearing on his or her eligibility to obtain a license or renewal license, a report shall not be required. The law enforcement agency shall return the application and the blank license form with the fingerprint thereon directly to the judge of the probate court within such time period.


    In this case, "the law enforcement agency" is the people to whom you go with the fingerprint card and blank license form. The FBI never gets nor even sees the application or blank license form. Neither does the GBI.

    As most of you know, this stuff in the second sentence is returned well before the 50 days expire.
     
  6. Gunstar1

    Gunstar1 Administrator

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    What I mean is that the FBI has 50 days before the locals should conclude that the record is clean and send the stuff back to the court.

    What I was trying to say is that with NICS and with our GFL, the FBI can take as long as they want to do the check, however NICS law gives them 3 days to respond and if no response the sale can proceed. I don't see why that is different from the GFL check giving 50 days and if no response the application should proceed.

    I have not looked at the 2 laws side by side, but they both involve the FBI doing a background check, they both give a limit on how long you have to wait if nothing is returned, they both say if that time limit has passed the assumption is that it is clean, they both give a remedy if after that limit has passed a reason for denial is found.

    Besides that the GFL has at least 3 background checks done, the locals do one, the state (gbi) does one, and the feds (fbi) do one. The judge is saying that it does not matter that just one of the 3 has not come back yet, but the NICS that has only one check can proceed if it is not done in 3 days.

    I have yet to read all of the briefs, but it just does not make sense to me.
     
  7. jrm

    jrm Sledgehammer

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    GS1, I think what MP is saying is that the 50-day requirement applies to the local law enforcement NICS check. The FBI fingerprint check does not figure into either the 50-day requirement or the 60-day requirement.
     
  8. ber950

    ber950 Active Member

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    Well without a succesful appeal GA is now a MAY issue state. :puke:
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    As in, apply in August, get your license in MAY . . .

    :lol:
     
  10. Gunstar1

    Gunstar1 Administrator

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    I was going by the old law this was filed under, not the new one. The old one was far more questionable than the new.

    jrm, did you get any info about how long the FBI usually takes to perform the fingerprint checks? I just don't see them taking 4 months for one county and 1 month for others.
     
  11. jrm

    jrm Sledgehammer

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    No.
     
  12. Gunstar1

    Gunstar1 Administrator

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    I still have an example of a FOIA request, I am going to modify it and send one off to the feds.
     
  13. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I have it on good information from a reliable source that Plaintiff has filed a notice of appeal.