GA Suit Over Open Carry Incident

BarryLee · May 3, 2012, 06:55 PM

A Georgia man has filed suit against two Gwinnett County Police Officers and a Sugar Hill Security guard claiming violations of his First, Second and Fourth Amendment rights. Gwinnett County and the city of Sugar Hill are located in suburban Atlanta.

This all stems from an incident where the gentleman was stopped by the security guard for openly carrying a firearm in a Sugar Hill park. The two argued over the laws and the plaintiff admits to insulting the security guard. During this confrontation two Police Officers arrived and asked the gentleman to leave, but he refused and was arrested for criminal trespass. The Officers also report that he was very evasive and supplied conflicting information.

After discussing this with some friends the general consensus was that the plaintiff made the situation worse with his behavior. There was even some question as to whether he might have actually been looking for a confrontation. To me it seems like the best course of action would have been to leave and then follow up with the City Attorney at a later date. To the best of my knowledge as a holder of a Georgia Firearms License the gentleman was well within his rights, but may have committed another crime based on his response.

http://www.ajc.com/news/gwinnett/man...r-1429992.html

Shakgul · May 3, 2012, 08:50 PM

I also live in Georgia, some cities have ordances about carrying in parks. The law does state though if asked to leave an establishment, you have to leave or the cops and give you a criminal tresspass. On another subject, why anyone other then a cop or security guard would open carry I don't understand it. Can someone please explain to me why they choose to open carry? It just seems that you are drawing attention to yourself and giving away a tactical advantage. If I'm planning something and I can see your gun, you just made the math that much easier.

Shakgul · May 3, 2012, 09:10 PM

I could be wrong but it looks like the city is going to win this one on a couple levels. He admited that his birthdate is wrong on the license. They could argue it's not his and he has no right to be armed. I am not familiar with this particular park, but if they hold public events their they could make that public gathering argument. If they don't get him on the gun or tresspass, is lying to the police a crime? He was carrying a fraudulent document and he knew it. I could be wrong about it and reading to much in to it, the fact that he is sueing the cops and guard and not the city says alot. The guard did not infringe on his rights, he was doing his job according to the law as he understood it.

Weapons: Bows and arrows, explosives, fireworks, slingshots, fishing spears or any device that discharges projectiles by any means is prohibited. Firearms must be unloaded, cased and stored, unless a person possesses a valid weapons-carry license for a firearm that is valid in Georgia. A person possessing a valid weapon-carry license to carry a firearm valid in this state may carry such firearm on Georgia State Parks and Historic Sites, except on sites where carrying such firearm is prohibited by federal law. Firearms except those that are unloaded, cased and stored are not permitted on sites that are leased, federal Army Corps of Engineers property, including:
Red Top Mountain.

It sounds like he should be sueing the city, some cities in Georgia do have these laws and they may be unconstitional.

MLeake · May 3, 2012, 09:19 PM

Georgia is a preemptive state. The city ordinance would probably not pass muster.

However, the OC'er does not seem to have handled things in a wise manner.

Pbearperry · May 3, 2012, 09:22 PM

If I got in an argument with a security guard and the Police told me to leave,I would have left skid marks leaving.You can't fix stupid.

**Tom Servo** · May 3, 2012, 09:30 PM

Quote:

During this confrontation two Police Officers arrived and asked the gentleman to leave, but he refused and was arrested for criminal trespass.

There's our answer: he wasn't arrested on a weapons offense. Whether or not it was legal to be there with a gun (and it was), once asked to leave, failure to do so constitutes criminal trespass.

The guy went out looking for trouble, and he got it. Looks like the lawsuit has already been filed.

I'd lay money that he's going to try to make a 2nd Amendment issue about it, then scream bloody murder when the NRA fails to take up his cause.

Fishing_Cabin · May 3, 2012, 10:21 PM

Tom,

You seem to be correct from what I have taken from this post and the AJC. I am sure there are some good, honest open-carriers out there. The very few I have met locally seem to want to make an issue of whether or not a property owners (or their representative) rights, trump their 2A rights. With one exception, that is all I have ever seen.

Perhaps this man has a case, perhaps not. The fact that was he wasnt charged with a weapons offense, and instead charged with trespass says a lot to me.

BGutzman · May 3, 2012, 10:27 PM

More freedoms legislated away..... a shame.... bet he pays taxes too.. ah but society has ruled..... what about freedom? when do we get to be free to act as a free people?

Im not promoting breaking laws what I do promote is we have way too many laws and in order to be free your every action cannot be dictated by law.

KyJim · May 4, 2012, 12:13 AM

Quote:

Whether or not it was legal to be there with a gun (and it was), once asked to leave, failure to do so constitutes criminal trespass.

I'm not so sure. I am unaware of any authority of the police to decide which individuals may step onto public property absent unpermitted parades, etc.

BarryLee · May 4, 2012, 12:32 AM

Quote:

I'm not so sure. I am unaware of any authority of the police to decide which individuals may step onto public property absent...

Yes, Georgia law does allow you to be in a public park with a firearm if you have a license. Being asked to leave or suffer arrest for criminal trespass only applies to private property, so I do not believe they can ask you to leave simply because you have a gun.

I think the guy is approaching this kind of like the Police pulling someone over for an inappropriate reason and then discovering drugs. I think it is referred to as “fruit of the poisonous tree” or something like that. In other words if they had not stopped this guy when he was doing nothing wrong there would have been no confrontation and no subsequent arrest.

TheKlawMan · May 4, 2012, 01:54 AM

Quote:

Notwithstanding Code Sections 12-3-10, 27-3-1.1, 27-3-6, and 16-12-122 through 16-12-127, any person with a valid weapons carry license may carry a weapon in all parks, historic sites, or recreational areas, as such term is defined in Code Section 12-3-10, including all publicly owned buildings located in such parks, historic sites, and recreational areas, in wildlife management areas, and on public transportation; provided, however, that a person shall not carry a handgun into a place where it is prohibited by federal law.

Georgia Code Section 16-11-126(g)

Like others post, I have read that this pre empts a city ordinance.

http://www.georgiacarry.org/cms/geor...ked-questions/

This guy's problem is that his carry license may not have been "valid".

TheKlawMan · May 4, 2012, 02:08 AM

Barry, The fruit of the poisonous tree doctrine prohibits evidence of a crime from being used if it was obtained by violating one's right to be free from an unlawful search and seizure (4th Amendment). The idea is not that the evidence isn't good or that it isn't probative as to guilt or innocent. This kind of evidence is often the best. The idea is by barring its use the police will be deterred from disregarding the Constitution.

IIRC, the biggest chink in the poisonous tree doctrine was a decison, perhaps it was Wolfe. I am not sure and the name isn't that important. The decision allowed the use of evidence although it was fruit of an improper search, but the police had acted in good faith. I beleive later cases have expanded on the good faith exception.

Here, I believe the court would find that the police acted in good faith since the city ordinance banned the carrying of a weapon, if they did not know that state law pre-empted it, and the weapons license appeared to be invalid. The birtdate was incorrect. Besides, the fruit of the poisonous tree only applies to the ban of evidence and what evidence does anyone seek to ban?

**Tom Servo** · May 4, 2012, 08:08 AM

Quote:

I'm not so sure. I am unaware of any authority of the police to decide which individuals may step onto public property absent unpermitted parades, etc.

My understanding is that the original interaction was with private security on the park payroll, who then contacted law enforcement. I'm not sure if the security guard had the authority to make that call, but we're not sure yet if the gun was the only reason for this confrontation.

BlueTrain · May 4, 2012, 09:25 AM

Would somebody please describe what acting like a free people is?

Fishing_Cabin · May 4, 2012, 11:57 AM

The person that was open carrying in this incident has made a couple bad decisions...

His comment in the story linked above:

Quote:

Originally Posted by link to ajc.com

"Proescher admits he insulted Hanna when they met on the Gary Pirkle Park track around noon April 20. "The rudeness was in noticing that he wasn’t [a police] officer," Proescher said.

He was simply taking advantage of his "freedom of speech” constitutional right, Proescher said in the suit.

And by carrying a gun, Proescher said he was “exercising his right to keep and bear arms in case of confrontation.”

http://www.ajc.com/news/gwinnett/man...r-1429992.html

I have to wonder how Mr Proescher treated others around there as well...I am sure there were other "non-police officers" there. Sometimes being polite goes a long way. Remove the fact that he was open carrying, and think to yourself, "if a man is being insulting, and creating an issue with his attitude/actions, should something be done?"

The next two lines say alot to me. That he was using his "freedom of speech" to be insulting to others? Since, in my opinion, he basically started a confrontation with his speech, he follows up and says that he "was excercising his right to bear arms in case of confrontation." Ummm.

Thankfully no one was injured, but this type of thinking is not good, in that, a person can go out, be insulting to start a confrontation, carry a firearm to defend himself in the confrontation that he started. It could have proceeded to have got worse...

The feeling I get from the story is that the firearm was just there, and was not the issue. The issue seems to be the persons attitude, and that is more then likely why he was charged with trespassing in the end.

It is interesting that he mentions he is an "advocate" of open carry, but yet he knew his birthday on his carry permit was wrong. I wonder if he has proof of where he tried to get that corrected, or just carried as is?

I am unsure about Ga for sure, but here even on public property you can be charged with trespassing or another charge if you are causing a problem and refuse to leave, or there after hours, or there without paying admission when they have a concert/show with admission fees. Generally speaking though disorderly conduct or disturbing the peace would probably be a better charge in some circumstances.

BGutzman · May 4, 2012, 05:34 PM

Quote:

Would somebody please describe what acting like a free people is?

Per your request - to act in such a way as to be able to pursuit happiness in ways that may be contrary to the will of the majority but not trespassing on the rights of others.

To be able to carry arms openly and publicly because it is your right and its not subject the good will of others.

To be able to engage in activities without every little possibility dictated by law. Heaven forbid any part of life is unregulated....

**Tom Servo** · May 4, 2012, 09:08 PM

Quote:

The feeling I get from the story is that the firearm was just there, and was not the issue. The issue seems to be the persons attitude, and that is more then likely why he was charged with trespassing in the end.

Agreed, but in this case, the presence of a firearm certainly didn't help perception.

Fishing_Cabin · May 5, 2012, 05:15 AM

Agreed Tom.

I for one am glad it did not go worse, as it certainly could have, at least in my view.

hermannr · May 5, 2012, 11:26 AM

I OC all the time (except in Winter when I have a coat on). I never go looking for trouble, and in over 40 years of OC, I personally have never had a problem....

However, when you do OC, and you do run into a problem, it is best to fight it without confrontation.

Perfect example is Jeff in Spokane. (Jeff OC all the time also) Went to a Ron Paul political rally at the Spokane Convention center, and her and his companion, both OCing, were turned away and told they could not enter the convention center. They did not muss or fuss, they left and then filed a complaint with the parks board.

Yes, Spokane has an ordinance about firearms in their convention center, and it to not a legal rule, the state in RCW 9.41.300 specifically states that a local governments cannot prevent CPL holders from carry in a convention center.

This is now going through the complaint process to get Spokane to change their ordinance so it complies with state law.

My personal feeling...Jeff is going about this the proper way...and he has standing without jepurdy.

May 3, 2012, 06:55 PM	#1
BarryLee Senior Member Join Date: July 29, 2010 Location: The ATL (OTP) Posts: 3,946	GA Suit Over Open Carry Incident A Georgia man has filed suit against two Gwinnett County Police Officers and a Sugar Hill Security guard claiming violations of his First, Second and Fourth Amendment rights. Gwinnett County and the city of Sugar Hill are located in suburban Atlanta. This all stems from an incident where the gentleman was stopped by the security guard for openly carrying a firearm in a Sugar Hill park. The two argued over the laws and the plaintiff admits to insulting the security guard. During this confrontation two Police Officers arrived and asked the gentleman to leave, but he refused and was arrested for criminal trespass. The Officers also report that he was very evasive and supplied conflicting information. After discussing this with some friends the general consensus was that the plaintiff made the situation worse with his behavior. There was even some question as to whether he might have actually been looking for a confrontation. To me it seems like the best course of action would have been to leave and then follow up with the City Attorney at a later date. To the best of my knowledge as a holder of a Georgia Firearms License the gentleman was well within his rights, but may have committed another crime based on his response. http://www.ajc.com/news/gwinnett/man...r-1429992.html __________________ A major source of objection to a free economy is precisely that it ... gives people what they want instead of what a particular group thinks they ought to want. Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman Last edited by BarryLee; May 4, 2012 at 12:35 AM.

May 3, 2012, 08:50 PM	#2
Shakgul Member Join Date: March 1, 2012 Posts: 39	Criminal tresspass I also live in Georgia, some cities have ordances about carrying in parks. The law does state though if asked to leave an establishment, you have to leave or the cops and give you a criminal tresspass. On another subject, why anyone other then a cop or security guard would open carry I don't understand it. Can someone please explain to me why they choose to open carry? It just seems that you are drawing attention to yourself and giving away a tactical advantage. If I'm planning something and I can see your gun, you just made the math that much easier.

May 3, 2012, 09:10 PM	#3
Shakgul Member Join Date: March 1, 2012 Posts: 39	The city. I could be wrong but it looks like the city is going to win this one on a couple levels. He admited that his birthdate is wrong on the license. They could argue it's not his and he has no right to be armed. I am not familiar with this particular park, but if they hold public events their they could make that public gathering argument. If they don't get him on the gun or tresspass, is lying to the police a crime? He was carrying a fraudulent document and he knew it. I could be wrong about it and reading to much in to it, the fact that he is sueing the cops and guard and not the city says alot. The guard did not infringe on his rights, he was doing his job according to the law as he understood it. Weapons: Bows and arrows, explosives, fireworks, slingshots, fishing spears or any device that discharges projectiles by any means is prohibited. Firearms must be unloaded, cased and stored, unless a person possesses a valid weapons-carry license for a firearm that is valid in Georgia. A person possessing a valid weapon-carry license to carry a firearm valid in this state may carry such firearm on Georgia State Parks and Historic Sites, except on sites where carrying such firearm is prohibited by federal law. Firearms except those that are unloaded, cased and stored are not permitted on sites that are leased, federal Army Corps of Engineers property, including: Red Top Mountain. It sounds like he should be sueing the city, some cities in Georgia do have these laws and they may be unconstitional.

May 3, 2012, 10:27 PM	#8
BGutzman Senior Member Join Date: December 4, 2009 Location: Frozen Tundra Posts: 2,414	More freedoms legislated away..... a shame.... bet he pays taxes too.. ah but society has ruled..... what about freedom? when do we get to be free to act as a free people? Im not promoting breaking laws what I do promote is we have way too many laws and in order to be free your every action cannot be dictated by law. __________________ Molon Labe

May 4, 2012, 09:25 AM	#14
BlueTrain Senior Member Join Date: September 26, 2005 Location: Northern Virginia Posts: 6,141	Would somebody please describe what acting like a free people is? __________________ Shoot low, sheriff. They're riding Shetlands! Underneath the starry flag, civilize 'em with a Krag, and return us to our own beloved homes! Buy War Bonds.

May 3, 2012, 09:19 PM	#4
MLeake Senior Member Join Date: November 15, 2007 Location: Outside KC, MO Posts: 10,128	Georgia is a preemptive state. The city ordinance would probably not pass muster. However, the OC'er does not seem to have handled things in a wise manner.

May 3, 2012, 09:22 PM	#5
Pbearperry Senior Member Join Date: December 9, 2008 Location: Massachusetts Posts: 283	If I got in an argument with a security guard and the Police told me to leave,I would have left skid marks leaving.You can't fix stupid.

May 3, 2012, 10:21 PM	#7
Fishing_Cabin Senior Member Join Date: February 10, 2010 Posts: 720	Tom, You seem to be correct from what I have taken from this post and the AJC. I am sure there are some good, honest open-carriers out there. The very few I have met locally seem to want to make an issue of whether or not a property owners (or their representative) rights, trump their 2A rights. With one exception, that is all I have ever seen. Perhaps this man has a case, perhaps not. The fact that was he wasnt charged with a weapons offense, and instead charged with trespass says a lot to me.

May 4, 2012, 02:08 AM	#12
TheKlawMan Junior member Join Date: June 23, 2009 Location: Orange County, CA Posts: 2,149	Barry, The fruit of the poisonous tree doctrine prohibits evidence of a crime from being used if it was obtained by violating one's right to be free from an unlawful search and seizure (4th Amendment). The idea is not that the evidence isn't good or that it isn't probative as to guilt or innocent. This kind of evidence is often the best. The idea is by barring its use the police will be deterred from disregarding the Constitution. IIRC, the biggest chink in the poisonous tree doctrine was a decison, perhaps it was Wolfe. I am not sure and the name isn't that important. The decision allowed the use of evidence although it was fruit of an improper search, but the police had acted in good faith. I beleive later cases have expanded on the good faith exception. Here, I believe the court would find that the police acted in good faith since the city ordinance banned the carrying of a weapon, if they did not know that state law pre-empted it, and the weapons license appeared to be invalid. The birtdate was incorrect. Besides, the fruit of the poisonous tree only applies to the ban of evidence and what evidence does anyone seek to ban?

May 5, 2012, 05:15 AM	#18
Fishing_Cabin Senior Member Join Date: February 10, 2010 Posts: 720	Agreed Tom. I for one am glad it did not go worse, as it certainly could have, at least in my view.

May 5, 2012, 11:26 AM	#19
hermannr Senior Member Join Date: March 24, 2011 Posts: 730	I OC all the time (except in Winter when I have a coat on). I never go looking for trouble, and in over 40 years of OC, I personally have never had a problem.... However, when you do OC, and you do run into a problem, it is best to fight it without confrontation. Perfect example is Jeff in Spokane. (Jeff OC all the time also) Went to a Ron Paul political rally at the Spokane Convention center, and her and his companion, both OCing, were turned away and told they could not enter the convention center. They did not muss or fuss, they left and then filed a complaint with the parks board. Yes, Spokane has an ordinance about firearms in their convention center, and it to not a legal rule, the state in RCW 9.41.300 specifically states that a local governments cannot prevent CPL holders from carry in a convention center. This is now going through the complaint process to get Spokane to change their ordinance so it complies with state law. My personal feeling...Jeff is going about this the proper way...and he has standing without jepurdy.

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