Stone Mountain

Discussion in 'Places Off-Limits' started by Malum Prohibitum, Mar 1, 2005.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The Stone Mountain Memorial Association is an authority of the State of Georgia. Stone Mountain Park is owned and operated by the State of Georgia through the Stone Mountain Memorial Association. By act of the Georgia General Assembly, code section 12-3-194.1 of the Official Code of Georgia Annotated, amended by House Bill 449, Act 762, of the 2000 session of the General Assembly, and signed by the Governor on May 1, 2000, effective July 1, 2000, the Stone Mountain Memorial Association shall have legislative power to adopt reasonable ordinances.

    The Code of the Stone Mountain Memorial Association 1998, Chapter 4, section 106, states: “Weapons. No person, except a member of the Park Police or other peace officer, shall possess a firearm, explosive compound, or knife designed for the purpose of offense or defense.â€

    There is no misconception on the part of these officers related to the possession of firearms in the park other than they cited state law rather than SMMA Code. Firearms are prohibited inside the park. We have made cases for possession of firearms that have been upheld by the court. This offense is usually handled by citation, not arrest, unless there is another crime which warrants arrest.

    Thank you for taking the time to write us about your concern. The Stone Mountain Park Police Department is one of only 90 state certified law enforcement agencies. We pride ourselves on the level of courtesy and professionalism provided by our officers.

    If you have any further questions, please do not hesitate to write or call.

    Sincerely,

    Chuck Kelley
    Chief of Police & Fire
    Stone Mountain Park Department of Public Safety
    770-498-5675

    (emphasis added)
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    In spite of his open invitation to write, he failed to respond to 2 subsequent emails pointing out the following (thanks Matt)

    (1) The authorizing statute Chief Kelley sent to me, O.C.G.A. 12-3-194.1, which authorizes the SMMA to pass ordinances, says, and I quote in pertinent part:

    "The association shall have legislative power to adopt reasonable ordinances relating to the property, affairs, and administration of Stone Mountain Park for which no provision has been made by general law and which are not inconsistent with the general laws or the Constitution of this state. . . . Within the limits of Stone Mountain Park . . . peace officers shall have the same authority, powers, and privileges regarding enforcement of laws as peace officers employed by county and municipal police departments of this state. Prosecutions . . ."
    (emphasis added).

    (2) Also, The Georgia Constitution, in Article 3, Section 6, Paragraph 4, provides:

    "(a) Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws." (emphasis added).


    (3) Finally, please see also Sturm Ruger Co. v. City of Atlanta, 253 Ga. App. 713, 560 S.E.2d 525 (2002) in which the Court of Appeals stated very clearly that the “comprehensive nature of statutes regulating firearms in Georgia†means that “preemption can be inferred.†The result is that only the General assembly has the authority to regulate the ownership and possession of firearms.

    “The practical effect of the preemption doctrine is to preclude all other local or special laws on the same subject.†Sturm Ruger Co. v. City of Atlanta, 253 Ga. App. 713, 718, 560 S.E.2d 525, 530 (2002) (emphasis added).

    Hmmmm . . . Perhaps the Chief did not answer me because I could not resist being a smart aleck.

    "While I realize you probably do not view your job as determining the constitutionality of SMMA ordinances, I did wish to reply to your letter and set out the preemption doctrine in Georgia, which, particularly on this subject, bars ordinances such as the SMMA Code, chapter 4, section 106. The power to set out reasonable regulations is not absolute, as the SMMA learned when section 104 was ruled unconstitutional by the Georgia Supreme Court in 1996. SMMA v. Zauber, 262 Ga. 661 (1993)."

    Reminding him of the SMMA's stinging defeat probably was not wise, but I've grown in prudence since then. (This was way, way back in the summer of 2004).
     
  4. ber950

    ber950 Active Member

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    Possible Action?

    Is there anything we can do about this in court?
    How much would it cost?
    Also, could the whole park be considered a public gathering?
     
  5. 1818

    1818 New Member

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    The SMMA is a state authority which is to say, its a direct political subdivision of the executive branch of the state govt. The land and buildings inside the park are all state property. Georgia law prohibits carrying on state property which is why you cant carry in any other state park. No matter how you slice it this is a state park, it doesnt matter that a state authority operates it rather than a state agency they are still part of state govt. Stone Mnt. Park will charge you under their park ordinace which means it never goes on your record, you never go to jail, and its tried to magistrate court rather than state court. They could choose to charge someone under the state law which would mean a much stiffer penalty and they could never even possess a gun ever again. I think by using their park ordinance they are trying to be as nice as possible by not having to use the state law as a charge. Bottom line is state law says the SMMA can make its own ordinances and state law also says no carry on state property. I would love that law to be reppealed but untill then there is nothing you can do to get rid of the SMMA ordinance becuase the state law would still be there. So unless you get rid of both, or your an LEO you CANNOT carry inside the park.
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    No, that is not the law. There is a specific statute that forbids carry in State Parks. That which is not prohibited is permitted. There is no statute barring carry on state property generally. If you find one, please post it here.

    No, it's not.

    Well, that is why we already have preemption of county and local ordinances, which I believe should be expanded to include state created authorities. See the proposed bill, under Actions, section 2. There is no state charge, though, for carrying in Stone Mountain. It is not a state park.
     
  7. 1818

    1818 New Member

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    Stone Mountain Park was created as "a state park" by the Georgia general asssembly. It is merely managed by a government authority rather than directly by the Department of Natural Rescouces. Stone Mountain Park IS a state park by virtue of its creation but it is managed by a state authority rather than a state agency or department, this doesnt make it anything else other than a state park.
    12-3-192.
    (a) There is created a body corporate and politic and instrumentality and public corporation
    of this state to be known as the Stone Mountain Memorial Association. It shall have
    perpetual existence
    . In such name it may contract and be contracted with, sue and be sued,
    implead and be impleaded, and complain and defend in all courts.
    (b) The association is assigned to the Department of Natural Resources for administrative
    purposes only.
    12-3-192.1.
    The purposes of the Stone Mountain Memorial Association shall include:
    (1) To preserve the natural areas situated within the Stone Mountain Park area;
    (2) To provide access to Stone Mountain for Georgia's citizens; and
    (3) To maintain an appropriate and suitable memorial for the Confederacy.
    12-3-193.
    (a) The association shall be composed of the commissioner of natural resources or his or
    her designee and eight members to be appointed by the Governor, one of whom shall be
    a resident of the metropolitan Atlanta area.

    12-3-194.1.
    (a)(1) The association is empowered to exercise such of the police powers of the state
    as may be necessary to maintain peace and order and to enforce any and all user and
    personal conduct restrictions upon the properties and facilities and the persons under its
    jurisdiction to the extent that such is lawful under the laws of the nation and the state.
    (2) In addition to the powers provided in paragraph (1) of this subsection, the association
    is empowered to exercise the police powers of the state in an area extending not more
    than 500 yards from the park boundaries adjacent to the entrances and exits, other than
    entrances or exits adjacent to the corporate limits of a municipality, which are used
    regularly by patrons attending functions at Stone Mountain Park and in an area extending
    not more than 500 yards from the tennis center.
    (b) The association shall have legislative power to adopt reasonable ordinances relating
    to the property, affairs, and administration of Stone Mountain Park for which no provision
    has been made by general law and which are not inconsistent with the general laws or the
    Constitution of this state.


    EVEN IF ITS NOT A STATE PARK, ITS STILL A PUBLIC PARK, this is clearly stated by the general assembly in the creation language of the park. In no way is the exsistance of the park "private" in any way. Its a public gathering.

    The Georgia General Assembly has clearly granted the right to create additional laws to the SMMA board, this is not at all in conflict with with the Georgia Constitution.

    Even if you wont accept the powers granted by Title 12, The entire park is still a public gathering. It is a publicly owned park (its still a park which is open to the public even if you dont want to call it a state park). This park ordinance actually decriminalizes possessing a firearm inside the park. The Park Police wont charge you under state law they will only cite you under the park ordinance which isnt even a finger printable offense, meaning that even if your convicted it will never go into your criminal record an no record of your arrest will exsist in any database. I know for a fact the Dekalb County Solicitor has obtained convictions using this ordinance before.

    Bottom line is: This IS a state park which is managed by a state authority which is a direct political subdivision of the state itself by virtue of written law. If you want to carry inside the park you will have to get the law changed taking away legislative powers of the SMMA board.....good luck.
     
  8. Gunstar1

    Gunstar1 Administrator

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    1818: Public Gathering and Public Place are 2 different things.

    16-11-127 says basically: A public gathering is either a building or land that for a specific time (event) is off-limits, or a building that for a certain reason is always off-limits.
    It also says: 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.

    So, another way to look at this:
    If Stone Mountain IS a state park or historical area, then their is already a law OCGA 12-3-10 about state parks and historical areas:
    Since a general law already exists, if Stone Mountain is a State Park then their ban is unlawful.

    If they are not a state park but a public park, then Stone Mountain is a "public place". Only when their is a gathering of the public for a specific event, or inside a "publicly owned or operated building", or they sell alcohol for consumption on the property would it be a "Public Gathering" and thus off-limits. They cannot claim they are a "Public Gathering" because they don't meet the requirements at all times.

    Stone Mountain must not be either a public place or a state park/historical area. Both of which already have existing general laws. If they were, by GA Code the SMMA cannot make any rules about. Since neither one have an unconditional ban of firearms on open state land, and Stone Mountain does that would mean the SMMA rule is exceeding what the law allows.

    The only way around it is if the SMMA claimed they are not a public place, state park/historic area, county, or municipal corporation. Only then would they be allowed to make up their own rules.

    To fix it, we change the loophole they are using. 16-11-184 is the preemption law. In with other legislation, we add:
    If that is passed, they would either have to remove all firearm rules except a ban on discharging, or choose to be a public place or state park/historic area and follow those laws.
    Both of those law sections have been marked to be updated next year as well.
     
  9. ber950

    ber950 Active Member

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    Test Case

    All this is great but who wants to be the test case.
     
  10. ICP_Juggalo

    ICP_Juggalo Professional Troll

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    Hey Malum, is the penalty for breaking Stone Mountain's ordinance a civil or criminal offense?
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I do not know the difference.

    My recollection from my law enforcement days is that city and county ordinances do not go on your record (criminal history). State offenses do. Of course, that may not stop them from putting you in handcuffs and hauling you to jail.

    Does that answer your question?

    The Stone Mountain Police Chief told me that his officers are instructed to write a ticket, not arrest, in this situation. The officers were clear that they do seize the gun, though. Please keep in mind that this applies not only to carry, but to any gun. That is, if you gun is unloaded and cased in a locked container in your locked trunk, and, for some reason, the police find it, they will confiscate it and you will be cited.
     
  12. ICP_Juggalo

    ICP_Juggalo Professional Troll

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    Civil offense = usually handled by issuing a citation and paying fine, no jail time and does not go on your record.

    Criminal offense = a crime that goes on your record and pay a fine and/or serving jail time.

    From how it sounds. Stone Mountain's ordinance is a civil offense since it is handled by issuing a citation and confiscating the gun. If anyone is willing to be inconvienced by getting a citation and having a el cheapo gun being confiscated I think we could set up a good case to get this ordinance shot down.
     
  13. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Well, there are ordinances that do not go on your record but for which you can serve jail time.
     
  14. 1818

    1818 New Member

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    All ordinances (City, County, or Stone Mnt Park) are non-fingerprintable misdimeanors. If your fingerprints are not taken, your arrest or citation is not recorded except with the local court.
    This park ordinance has been tested many times and everytime it has been upheld in Dekalb Magistrate court and in more than one trial in Dekalb State court. The Stone Mnt. Park Police is very lax and friendly police department, they dont cite or even arrest unless the offense is very serious, but once you cross that line they are just like any vigilant law enforcement agency.
    If you don like the fact that this ordinance exsist the best way to fix it is through the GA general assembly.
     
  15. ber950

    ber950 Active Member

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    Fixed

    We did fix it. It is called preemption. The fact that nobody has appealed this ordinance does not make it legal.
     
  16. ICP_Juggalo

    ICP_Juggalo Professional Troll

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    Hmm, Some of us may not agree with 1818, but I think he does have some interesting info. Tell us 1818, are you employed with the local LE there in Stone Mountain or do you work in the courthouse? What else can you share with us about this ordinance? - specifically the wording and language of the law used in the court cases regarding this ordinance.
     
  17. Gunstar1

    Gunstar1 Administrator

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    I agree with 1818. Stone Mountain has the authority to make this ordinance since they do not fall into either the pre-existing or the pre-emption. They exist in a Gun-banning loophole.

    ber950- Stone Mountain is not a county or a municipal corporation so the pre-emption does not apply to them.

    As 1818 said, if we want to change this we need to get the General Assembly to change the law.
    That is why we are pushing to change the pre-emption code "(b)(1) No county, or municipal corporation, state created authority, agency, department, or public corporation, "

    If that is passed, we can close the loophole since Stone Mountain is a state created authority.

    (I would still like to know the wording of the ordinance though)
     
  18. Gunstar1

    Gunstar1 Administrator

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    I was re-reading this topic and I can see this case going either way if it was tried in different counties.
    Remember, it is both the argument you bring AND the judge presiding that determines the outcome.

    Malum makes good points about the law that a liberty minded judge would agree with. Narrowly defined as is supposed to be when dealing with citizen liberties, an existing general law would be 12-3-10 state parks or 16-11-126, 127, and 128 regarding open carry, public gatherings, and concealed carry (which is what city/county parks are under). Neither of which allow a complete ban 24/7.

    A liberal judge on the other hand could see it 1 of 2 different ways.
    1. An existing general law could encompass any firearm law in Georgia Code. Because we have several laws completly banning firearms from the entire property, then Stone Mountain can too.
    2. As a State created authority and not a city, county or State created Department, no general laws cover it and it can make up its own rules however it likes.

    Before we have a test case, we would need to check and see if DeKalb County is liberty minded or liberal.
    In and of itself cases being upheld in court means nothing since the wrong argument can lose to a blantantly wrong case and even a perfect argument to a blatantly wrong case can be lost if a liberal judge chooses so.

    Guess who is now the judge of DeKalb district state court. Barbara Mobley, the person who sponsored the bill for a state ban on assualt weapons.
     
  19. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Are these cases tried in DeKalb State Court? I doubt it. One call to Stone Mountain P.D. with a question might clear that up.

    Besides, it is not what the trial court finds that matters. Rather, only on appeal would anything that matters be written (by appeal I mean Georgia Court of Appeals or Georgia Supreme Court only, not appeals from Magistrate Court to State or Superior).
     
  20. Gunstar1

    Gunstar1 Administrator

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    No it is tried in the Magistrate Court.

    I think the first appeal goes to the district court.