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Discussion Starter · #1 ·
:shock:

:jail:

So, my wife and I go to lunch together. She wants to look in these little stores full of over-priced foo-foo boring stuff, and I am being nice, so I go along. This is Atlanta, though, so I am packing, of course.

We decide to eat at a little sandwich shop nearby with an outdoor seating area. We go inside, order, and, as I am getting ready to pay, what do I see?

A little refrigerator with with a glass door behind which are bottles of beer and wine!

#-o

:banghead:

So, I nonchalantly pay the lady, and we go outside to sit and eat. I nervously look around, thinking nobody had noticed.

Several minutes later, as we are eating, I notice two police officers walking through the parking lot, picking a path through the cars more or less in our general direction. The adrenaline starts to trickle. Nothing major, just a trickle, surely they are looking for someone or something else.

Then I notice them scanning the restaurant. They are halfway across the parking lot now. A little more adrenaline begins to flow.

Three-fourths of the way across the parking lot, one of the officers looks right at me. I notice his direction change from a point off to my left to my exact direction. The other officer follows.

The patio on which we are eating has steps covering the entire length. They can climb up the steps anywhere along them, but they have turned at an angle to come up the steps directly where I am sitting.

I quickly begin thinking of excuses!

I want to blurt out, "But I didn't know they serve alcohol!" Or, "I came outside when I saw it!"

Instead I bite my tongue. My heart is racing, and the adrenaline is in full dump mode as the officers ascend the stairs and now are less then three steps from me!

:help:
 

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Why do I think the next you are going to say is that they kept walking and set down with someone at a table behind you? :sly:
 

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no, no, no.... They came over to tell him his fly was open.... :lol:
 

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Discussion Starter · #4 ·
They went in and got something to eat.

My wife nudged me and said, "See, if the police can afford to eat here, it is not too expensive."

"Huh?" I responded. My heart was still racing.

Whew!
 

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Discussion Starter · #5 ·
Any opinions on whether I would have had a viable defense? If so, what?
 

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Methinks it would depend on the cop you ran into. If he's a nice guy and believes in the right to keep and bear arms you may get away with a warning and please leave now. If he is on a power trip or thinks only cops should carry then your taking a trip downtown....
 

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Malum Prohibitum said:
Any opinions on whether I would have had a viable defense? If so, what?
tell them the truth. You didnt know they served alcohol until it was too late.
 

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Malum,

As I'm sure you remember

Mistake of fact excuses
Mistake of law does not excuse

Obviously the "law" here is: Thous shall not carry at places which serve alcohol.

But, whether a place serves alcohol, I think, would be a matter of fact.

Of course try explaining this to an officer seems like it would be a waste. This is definetly a defense for after you get taken downtown. Of course at the time you were at the registered you had actual notice of their serving beer. So... that might not be so great for you.

And another thing, this defense would work unless the courts said you "should have known" that the place sells beer and wine on account of the "heightened responsibilty that we must expect out of those who have entered into a social contract with the state to carry firearms" or some other such contrived nonsense. Which would suck but wouldn't be beyond what I think is possible.

Another thing, were you open carrying?
 

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Discussion Starter · #9 ·
mzmtg, is that a defense?

I once walked out of a building and out into a parade that I did not know was taking place? Would that defense work?

Must a judge not let the case go to the jury if I can prove I did not know they sold beer and wine until after I paid?

This is not the first time I have failed to know whether a restaurant serves alcohol until after I walked in.

If you had never been to a Chili's or something similar, is there any way to know before walking in whether they serve alcohol?

Shouldn't one at least know he is violating a malum prohibitum law before carting him off to jail?
 

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What Alcohol? I did not see them serving any alcohol.... well then since I was not aware of that until this moment, I need to ask you how I should secure it, as per the law.
 

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16-11-127 http://www.legis.ga.gov/legis/GaCode/?t ... ection=127
(d) It is an affirmative defense to a violation of this Code section if a person notifies a law enforcement officer or other person employed to provide security for a public gathering of the presence of such item as soon as possible after learning of its presence and surrenders or secures such item as directed by the law enforcement officer or other person employed to provide security for a public gathering.
It is only an affirmative defense, but I have a feeling most LEOs would not know that means in court and not on the street.
 

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Malum, mistake of fact is an defense in criminal law. I think for situations like going to Chilis or Olive Garden you'd be charged with constructive notice that they serve alcohol in those locations (since they are chains) but for places that aren't chains I think it's probably a much stronger defense.

As far as knowing about whether or not you violate a malum prohibitum

If you are in MPC jursidiction (which Federal is) then mistake of law or fact will excuse so long as it negatives the mens rea.
The dichotomy I posted above is the common law treatment, which a lot of scholars think is too harsh. I have no idea how Georgia treats the mistake doctrine (but I do know that Georgia is a common law jurisdiction and not an MPC jurisdiction).

The problem is that a lot of newer criminal statutes try to impute strict liability as the standard instead of mens rea.

If you are interested Morissette v. United States is along these lines and talks about this, but it's not a GA case so, it's purely academic.

I think I'm getting this right, but I only got a B in criminal law, so please no one take this one way or the other as to reality in Georgia.

And as always I am not a lawyer, and even when I do become one I won't be a criminal lawyer.
 

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Discussion Starter · #13 ·
viper32cm said:
Another thing, were you open carrying?
No, way!

I would have peed right there in my pants if that had been the case!

:shock:
 

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Malum Prohibitum said:
viper32cm said:
Another thing, were you open carrying?
No, way!

I would have peed right there in my pants if that had been the case!

:shock:
Just checking :D
 

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Malum Prohibitum said:
viper32cm said:
Another thing, were you open carrying?
No, way!

I would have peed right there in my pants if that had been the case!

:shock:
That would have only drawn attention to you and possibly resulted in "contact" by the officers.
 

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Discussion Starter · #16 ·
viper32cm said:
I have no idea how Georgia treats the mistake doctrine (but I do know that Georgia is a common law jurisdiction and not an MPC jurisdiction).
Me, either.

viper32cm said:
I think I'm getting this right, but I only got a B in criminal law, so please no one take this one way or the other as to reality in Georgia.

And as always I am not a lawyer, and even when I do become one I won't be a criminal lawyer.
I got the highest grade in the criminal law class, I think- if not I came in second, but I am not a criminal lawyer and find some of it just terribly confusing. A lot of the case law really seems driven by a desirable outcome to the judge rather than applying any rule of law.
 

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Malum Prohibitum said:
viper32cm said:
I have no idea how Georgia treats the mistake doctrine (but I do know that Georgia is a common law jurisdiction and not an MPC jurisdiction).
Me, either.
I do:

16-3-5.
A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.
 

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Discussion Starter · #19 ·
Thanks jrm! But you forgot to quote the entire thing!

16-3-5.
A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission, unless, of course, he hangs around on the patio like a dummy long after the misapprehension of fact was dispelled.
 
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