Probate Judge Hearing

Discussion in 'General GWL Questions' started by GAfirearmsReference, Mar 11, 2017.

  1. GAfirearmsReference

    GAfirearmsReference Weapons Law Booklet

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    Suppose an applicant (for a new GWL or just for a renewal) gets a notice of hearing to come to the Probate Court and face the judge to explain something on his or her criminal history.

    By what authority can the Probate Judge do this?

    Suppose the thing on the criminal history is not clearly a conviction or adjudication for an always-disqualifying offense.

    Suppose it's just an arrest for a crime that would be disqualifying IF a conviction for that thing were entered in the record, but NO disposition is shown?

    Suppose it's a conviction for a crime from some other state that the Georgia probate judge doesn't understand and doesn't want to bother looking up-- that thing called "criminal mischief 2nd Degree" out of the State of Boondock... is that a felony? Is that a drug offense? A crime of violence? Domestic of Family violence, maybe?

    Suppose it's a Georgia conviction for a drug crime, but the record doesn't show if it's a felony conviction or misdemeanor conviction? A LOT of felony "possession with intent to distribute" marijuana cases are later pled down to the misdemeanor offense of "poss. marijuana, less than 1 oz.". The felony version is a lifetime prohibitor, but the misdemeanor only affects GWL eligibility for 5 years after the sentence ends.

    How do y'all feel about GWL applicants being summoned to (well, just "notified" of ) such a hearing and having to answer questions about the details of their cases?

    Subsection (a) of 16-11-129 says that the judge shall investigate the applicant, but it says ".. pursuant to subsections (b) and (d) of this Code section..."

    16-11-129 (b) sets the legal standards for disqualification. The only further investigations allowed, besides a criminal history background check, is that the judge may demand mental health records and could hold a hearing to determine GWL eligibility based on mental health.

    16-11-129 (d) says that when the law enforcement agencies return their reports to the judge, the judge has a limited time to act to either issue the license or not, and the reasons NOT to approve the GWL would be:

    --facts establishing ineligibility have been reported

    -- the judge determines such applicant has not met all the qualifications,

    --- [the judge determines the applicant] is not of good moral character,

    -- or [the judge determines the applicant] has failed to comply with any of the requirements contained in this Code section.

    Subsection "d" doesn't mention any hearing to take testimony or receive further evidence through documents, either.

    FINALLY, the new Subsection "j" generally gives GWL applicants the right to sue for mandamus (force a government official to do something they don't want to do), OR, it authorizes the applicant (implicitly, only the applicant, not the judge or the applicant) to request a HEARING on the issue of GWL eligibility.
     
  2. Fallschirmjäger

    Fallschirmjäger I watch the watchers

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    My GWL expired right after the Great Gary Pirkle Park Parkling and the probate judge here in Forsyth Co. notified me that I had a hearing. There hadn't been a trial, nor had the county solicitor yet requested the case be nolle prosedqui'd so it was still 'open'.
    I met with the judge and explained my side, I think I even gave him the address of the Gary Pirkle Park thread on here and he concluded that there was no reason for any trespassing arrest as I'd disturbed no one and had not committed any infraction of state law or park rules. My GWL came in the mail the next week or so, I think.
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    A judge is supposed to be an arbiter, not an investigator. Who is on the other side of the hearing? In this case, it is the judge. This is not our court system. John Monroe and I both take the position that these hearings are an invalid, ultra vires exercise of ungranted authority. Basically, it is the probate judge wanting to play "judge" in a system in which she is actually just a minister issuing licenses.

    The preferable route to take, if the person is entitled to the license, is a writ of mandamus in a court of record and seek attorneys fees pursuant to OCGA 16-11-129(j).
     
  4. GM404

    GM404 Well-Known Member

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    BOOM!! Hook it up!!!
     
  5. DonT

    DonT Deplorable bitter clinger.

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    I would have to think about refusing a request to meet with my probate court judge. If it is a request, even if the law doesn't call for it, would it help me to meet with the probate judge or not? If I think a 15 minute meeting will get my license issued, by clearing up some misunderstanding, I probably would go for the meeting.

    On the other hand, am I encouraging this practice by the judge, if I go along with it? One can make that plausible case.
     
  6. Nemo

    Nemo Man of Myth and Legend

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    Appear at the meeting, state nothing other than your objections to the hearing occurring and demand the judge issue or deny the permit. Have the recording device operational in the hearing. Have the Petition for the Writ drafted and out of professional courtesy offer the judge a copy and advise you will be filing on leaving the courtroom, if they state a denial. If they do not answer, advise you will be filing the morning after it is required by law to have been processed.

    Nemo
     
  7. GAfirearmsReference

    GAfirearmsReference Weapons Law Booklet

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    I think that certain things on somebody's criminal history could give a judge at least reasonable suspicion that the applicant may be disqualified, justifying the probate judge to ask for additional evidence (testimony at a hearing, an affidavit, sworn before a notary public, or certified copies of court documents).

    Now, what if the applicant just refused to cooperate?
    Can that be seen as evidence that he or she is unqualified, and that thing on his or her record IS a serious thing that would make him or her ineligible for a carry permit?

    Remember, this "right to remain silent" is a CONSTITUTIONAL CRIMINAL LAW doctrine. In that setting, anything that chills the exercise of that right is forbidden. Courts will not allow for a negative inference from remaining silent once Miranda rights attach.

    But when the setting is a purely civil matter, with no current or future criminal prosecution on the horizon, and when the statements the government seeks the citizen to make can only have "administrative" consequences, not criminal penalty consequences, the general rule is that there's NO right to both remain silent and have no negative inference drawn from that. Usually, your silence will justify the administrative law judge believing that had you answered the question, your own honest answer would be against your interests.

    If the judge's suspicions are not reasonable, sure, I say fight it. Tell the Probate Judge to make his or her decision ONLY on the evidence in your criminal history records and on the four corners of your application package as you originally submitted it. When you are denied a license or renewal, sue for mandamus and attorney's fees. Years from now you'll probably win.
    Of course you won't be able to carry during all that time. At least not away from your home, land, vehicle, or place of business.

    And for the rest of your life, you'll have to answer "YES" when you are asked if you were ever DENIED a carry permit. Because, factually, you were. Then you can explain how you fought the judge and eventually won.

    Personally, I'd rather just mail-in that extra paperwork the Probate Judge wants to see. I'm not opposed to going to a live hearing and answering some follow-up questions from the Probate Judge about the facts and circumstances of something on my arrest record. Not if it's a potentially disqualifying offense, or something from some other jurisdiction that our Georgia legal system doesn't have, or doesn't classify as the same kind of offense.
     
  8. EJR914

    EJR914 Cheezburger Operator

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    I went to one of these the first time that I received my Georgia weapons license, I have since gotten the false arrest expunged.