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Discussion in 'Places Off-Limits' started by Malum Prohibitum, Nov 11, 2005.
See O.C.G.A. 16-7-21
There is no merit in the contention that the phrase 'premises of another person' found in Code Ann. s 26-1503(b)(3) does not include property owned or used for public purposes. The term 'person' is defined by our criminal code as 'an individual, a public or private corporation, an incorporated association, government, government agency, partnership or unincorporated association.' Code Ann. s 26-401(l).
E.P. v. State, 130 Ga. App. 512 (1973)
That is now 16-7-21 . . .
The evidence does show that the Authority has placed the Stranges on its banned list, which authorizes their arrest for criminal trespass should they come onto Authority property.
Strange v. Housing Auth., 268 Ga. App. 403 (2004)
Open carry events, however, may be protected by the First Amendment. Check out this case of the bum living outside the Russell Building in Atlanta for 8 years as a protest:
Gilbert concedes the illegality of his conduct under Georgia law. State law, however, may not override the First Amendment. See U.S. Const., art. VI, cl. 2 (Supremacy Clause). It is axiomatic that any statute or court order that restricts Gilbert's activity must be consistent with the First Amendment.
. . .
Regulation of speech on government property that has been traditionally open to the public for expressive activity, such as public streets and parks, is subject to strict scrutiny. Perry, 460 U.S. at 45, 103 S.Ct. at 955. Regulation of speech on government property that is not a traditional public forum but that the government has specifically dedicated as a place for expressive activity is also examined under strict scrutiny. Kokinda, 497 U.S. at ----, 110 S.Ct. at 3119; Perry, 460 U.S. at 45-46, 103 S.Ct. at 955. Regulation of speech on government property not by tradition or designation a forum for public communication is examined only for reasonableness.
(I supplied the emphasis)
. . .
There is no question that the unenclosed plaza falls into the second category. Although the area is not a traditional public forum, it has been opened by the government as a place for public expression. Demonstrations occur there on a frequent basis. See Gilbert, 720 F.Supp. at 1556. Therefore, we must apply strict scrutiny in reviewing the injunction issued by the district court as it relates to Gilbert's activity in the unenclosed plaza. Similarly, there is no question that the interior of the building falls into the third category. The interior of the Russell Building is a nonpublic forum. Therefore, the restrictions placed upon Gilbert's conduct inside the building must only be reasonable.
. . .
The injunction may not prohibit Gilbert from wearing expressive paraphernalia and speaking about anything he wishes inside the building and on the portico when he is lawfully in those areas. Gilbert may not, as others may not, carry on a continuing protest in either of these areas. As Justice Black pointed out, "The First and Fourteenth Amendments ... take away from the government, state and federal, all power to restrict freedom of speech, press, and assembly where people have a right to be for such purposes." *887 Cox v. Louisiana, 379 U.S. 536, 578, 85 S.Ct. 453, 468, 13 L.Ed.2d 471 (1965) (separate opinion of Justice Black) (emphasis in original).
. . .
To reiterate, the following modifications are required: (1) the injunction may not prohibit Gilbert from sleeping in the unenclosed plaza, if he does so as part of a protest; (2) the injunction may not prohibit Gilbert from wearing expressive paraphernalia and speaking about anything he wishes inside the building and on the portico when he is lawfully in those areas.
U.S. v. Gilbert, 920 F.2d 878 (11th Cir. 1991)
Interestingly, Gilbert was back before the 11th Circuit in 1995 and 1997. This guy has wasted decades, since 1979, in protesting the government. The court has upheld his arrests and 150 days in jail for protesting without a permit. In short, it went like this:
41 C.F.R. Â§ 101-20.402(c) specifically instructs that all permits involving demonstrations are to be coordinated with the Chief, Law Enforcement Branch, prior to approval. The policy statement also refers to demonstrations.
For all of the foregoing reasons, we will affirm the judgment of the district court.
If that is the case, then O.C.G.A. 16-11-127 contradicts itself.
'Nothing in this code section shall otherwise prohibit the carrying of a firearm in any other public place by a person licensed or permitted to carry such firearm by this part."
"Nothing in this code section . . ."
The criminal trespass law is not in that code section.
It is a good argument, though. I just don't think the plain wording of the statute supports it.
This has to be the most disturbing thing I have run across in the last two years.
I think the Colorado/Oklahoma statute might take care of this problem, because it only preserves the rights of "private" property owners as they exist at the time of the adoption.
In researching city and county ordinances for whether there are prohibitions on the possession of firearms in parks, I was rather disturbed to find ordinances directly relating to this post. Most localities have an ordinance relating to the public streets and sidewalks. If you aren't walking, alone, you need a permit.
I thought it would be just for parades and such, but, no, demonstrating or even "congregating" requires a permit.
Why? Because it is the city's property. I bet you thought it was yours because it was "public," didn't you?
Remember, even the 11th Cir. case above upheld the permit requirements for the one-man protest.
I am rather shocked by the lack of response to this post. I think this is a huge threat. Almost as much of a threat as the public gathering clause itself. Am I overreacting or simply wrong?
I will ask it another way.
Is anyone aware of any authority allowing carry in any public place, owned by a public corporation, that is not otherwise off limits?
ICP Juggalo already took his shot, but I believe that his reference is just to the fact that carry in a public place is not further restricted by 16-11-127, as it says "nothing in this code section."
Before reading these cases, I was of the opinion that if one was in a place where he was lawfully allowed to be, and not doing anything illegal (such as the open carry of a firearm with a license), then he could remain and the government could not order him to leave. I would have felt perfectly comfortable telling a police officer to go away and mind his own business if he tried to eject me from a public place (owned by a public entity, I mean, rather than a private entity) for openly carrying a firearm. This is assuming I was are not going around and purposely bothering people or something.
Now, I am not so sure.
What about 16-11-184?
(b)(1) No county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms, components of firearms, firearms dealers, or dealers in firearms components.
To me that says that cities, counties, and those authorities and corps they grant power to cannot make any kind local firearm rule that is enforcable.
I am still not sure they can if you are not breaking the rules or law. As you quoted "Gilbert concedes the illegality of his conduct under Georgia law". So he was already doing something illegal by state or local law but the case was about whether the state's law was illegal by constitutional law(1st Amend) and therefore make the injunction invalid.
I am not totally sure but unlike private property where anyone can be refused for almost any reason, public property has to have a guide-line as to rules and regs for the general use of the property, revoking use and even appeal of a decision to ban from the property. If those rules and regs are not broken(as your question states), I don't see how they can ask you to leave.
However as the other post has a growing list with the parks that ban firearms, you might be asked to leave for breaking a rule that should not be enforcable.
What if they do not have such a rule? What if they just don't like it? What if they take the position that they can darn well toss you out for any reason they want? Skip up over Gilbert to the other state law cases. In each of those cases, involving a Housing Authority and a school, nobody was contending that anything illegal was being done. In fact, the defense was something to the effect of, I was breaking no laws, and this is public property, not private. The outcome was that the court held "There is no merit in the contention that the phrase 'premises of another person' found in Code Ann. s 26-1503(b)(3) does not include property owned or used for public purposes. The term 'person' is defined by our criminal code as 'an individual, a public or private corporation, an incorporated association, government, government agency, partnership or unincorporated association.'"
Be aware that there are no restrictions in 16-11-127 on reasons why one can be thrown out. Just as you can throw anyone off your property for any reason that strikes your fancy, if this holding is drawn to its conclusion, then government can do the same.
Arguing 16-11-184 I think is the best argument available, but a firearms law that affirmatively states that one may carry into "any area of the state," as Colorado's law states, would be even better.
Just read Strange V. Housing Auth and he was breaking the rules the Authority set out. Unless prohibited by law from makeing a rule (16-11-184 can't ban firearms) then the Authority can create whatever rule it likes, unless appealed by whatever means set out in the Authority regs.
If you get a letter from a lawyer that says don't do ________ any more on client property, you need to either not do _______ any more or get a lawyer and make them retract the letter.
You don't just go ahead and do it anyway. It is a lot harder to get off a banned list than it is to get a rule removed or do something else while on the property.
I will see if I can't read the first one later today.
In principle, I agree with using criminal trespass laws to throw people off public property. Would anyone here oppose asking a man to leave if he were a known child molester passing out candy to children in the park?
But would you want someone thrown out for wearing a T-shirt that said Vive La Reagan Revolution or a Gore campaign button?
If Georgia firearms law were like Colorado's, this would not even be an issue.
Which one is Colorado's again? I read so many different ones I forget whose was whose.
Very simple structure, and it also affirmatively declares the right to carry anywhere, while preserving only private property owner's rights (not public property). Repeating "private" four times ought to get the message across.
Let me know what you think about its application to this thread.
I would like opinions. Do you think O.C.G.A. 16-11-173sufficiently addresses this issue by barring public authorities trying to throw you off public property (not a public gathering under 16-11-127) for having a firearm?
Yes or no?
"No county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner . . . the possession, ownership, transport, [or] carrying . . . of firearms . . ."
Would a policy of using criminal trespass laws to keep us from public property be an "other enactment" attempting to regulate "in any manner" the carrying and possession of firearms?
What if there is no policy, but a police officer just walks up and tells you to leave or be arrested?
I thought I read a trespassing case about a man and a housing authority. That he was not breaking any laws (he was giving out toys/candy/bicycles etc to the local poor kids) but was not doing any harm and was asked to leave and not return.
When he did return he was arrested on trespassing charges.
So as far as I am aware, they can ask you to leave the park for no reason if they want to. Whether it is a desire to remove you because of a firearm or your pink shirt, does not matter. You may be able to get out of it if you can prove the removal was solely because of the firearm, but that is a big IF and dependent on what county/city the park is in.
I am not sure it is for any reason. The Eleventh Circuit case above dealt with free speech, and I am quite sure they cannot ask you to leave for a reason protected by law : race, sex, religion, firearm?
Well, I would. Especially if he were a "known child molester" like the 17 year old football "phenom" who had consensual relations with a 15? year old. Easier to monitor activity in a public area, and parents conducting supervision can remove their dependents in short order.
You mention criminal trespass; is there a civil version? While we're at it, if someone could address **Edit** MP's last set of questions, I'd be appreciative.
Food for Thought
If the government property manager demanded you leave, I think that you would have to leave under penalty of misdemeanor criminal trespass. I've never heard that the owner or owner's designated agent has to have a "good" reason to ban you, but then, usually we're talking about private property owners.
With public land and government management, maybe your relief would come from constitutional Due Process of Law principles? You could say that your liberty is being infringed upon in an arbitrary manner without any sort of hearing. Indeed, how could the government even offer to give you a hearing without implicitly admitting that it has to have a "good enough" reason to deny you your rights, with the purpose of the hearing being to give it the opportunity to prove that it had such good cause?
Then maybe you could pressure this property manager's supervisors to reverse his or her decision. Argue that the property manager doesn't have authority to made up her own rules, but rather she only has authority to take reasonable and necessary steps to carry out certain job functions and enforce certain rules, which DO NOT include the disarming of law-abiding citizens with pistol permits.
How about saying that the government property manager's in-the-field decision is in effect the creation of a new ordinance, resolution, or municipal code by whatever governmental board or agency that put that manager in power? Then the State preemption law would apply. Unless the manager's supervisors specifically disavowed her actions and reversed her order banning you and your gun from the property, her action would be attributed to them as an official action.