What's the effect of the affirmative defense?

Discussion in 'Places Off-Limits' started by gundawg, Nov 11, 2005.

  1. gundawg

    gundawg New Member

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    Would this allow someone who owns an establishment that is a "public gathering" to allow carry? My thinking is that an appointed person provides security for a gathering and they permit a firearm "secured to your person." This could be a bouncer at a bar, a church usher, the hostess of a restaurant. Any place that is pro-carry. (I believe this is also why bringing your firearm to a gun-show isn't illegal. A gun-show is definately a public gathering, but they have security at the door that checks you in.)

    Just a thought. I know most places aren't so pro-carry as to explictly allow firearms, but some might be.
     
  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Allow?

    I'll spare you all the cites, but an an affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it.

    When are you doing the justifying, excusing, or mitigating? In front of a jury, that's when!

    I assume this is not exactly what you had in mind . . .
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    How it works is that you must put in evidence (at your criminal trial) of the affirmative defense, and then the State is required to disprove your affirmative defense. This would probably require you to testify rather than remain silent so that there is evidence about the affirmative defense (whether you notified security "as soon as possible after learning . . ."). The jury would then determine your fate.


    This raises a more practical question. How is your security going to get around the public gathering clause, assuming you did not hire someone exempt from section 127?
     
  4. gundawg

    gundawg New Member

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    I realize that the legal definition of the affirmative defense is how you put it above. I would just hope that in a clear-cut case of the affirmative defense applying, the solicitor would drop the case. If the affirmative defense has ever been used, I can't tell since there doesn't appear to be any Georgia caselaw that I can find.

    Just hire members of the Georgia State Defense Force :lol:
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Well, the solicitor might very well drop the case, but that will only happen after you have been booked on a weapons offense, which will stay on your record even though no conviction will be shown. Meanwhile, you languish in jail until you post bond, have a trial, or get the charges dismissed.

    So, even with the solicitor dismissing the charges, I do not think this is what you intended.

    I have seen people posting here that an affirmative defense basically means you cannot be arrested. Not so.

    I will give you another example that is perhaps more familiar. Have you ever heard of someone claiming self defense in response to a charge of murder or other violent crime? That is an affirmative defense. They are arguing this at trial.

    Not where I would want to be . . .
     
  6. jrm

    jrm Sledgehammer

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    I agree with MP, but I would add that, where a potential defendant has a clear affirmative defense, a solicitor may not bring charges in the first place. To extrapolate on the self defense example, it is fairly common for someone to kill in self defense and not be charged (by a prosecutor). The person might be arrested, booked, jailed, etc., but never formally charged with a crime. In such instances, the prosecutor has appropriately exercised discretion by not charging someone with a crime when it is fairly obvious that a trial would result in acquittal. What I'm trying to say is that a prosecutor SHOULD consider evidence of an affirmative defense before charging. That does not always happen, however, and it will vary greatly from county to county. Fulton County is notoriously charge happy, especially in the DA's office (I'm less familiar with the solicitor general's operations).
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    jrm, when I was a police officer, we presented clear self defense cases (oh, there are some interesting stories there) to the DA, who would present them to the grand jury. Since the grand jury does whatever the DA wants (we ought to call them the rubber stamp jury), they would return a "no bill" and we would release the person.

    We treated them well in the meantime.