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Georgia Wait Time - Lawsuit

Discussion in 'Legal' started by Malum Prohibitum, Oct 17, 2006.

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  1. Malum Prohibitum

    Malum Prohibitum Member

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    In Georgia, the licensing statute provides that "Not later than 60 days after the date of application" the probate judge "shall issue" an applicant's firearm license. In spite of this language, some probate courts routinely take 4 to 6 months to issue such licenses.

    One applicant waited not 60 days but 125. :fire: Then he sued. :)

    He lost. :(

    He is appealing :D , and here is a link to all of the relevant briefs in the case, the trial court's order, and the appellate brief just filed yesterday.

    http://georgiacarry.org/cms/?p=25
     
  2. Malum Prohibitum

    Malum Prohibitum Member

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    Panel

    The names of the judges on the panel are Andrews, Ellington, and Adams. If you're interested, you can read their biographies at http://www.gaappeals.us/biography/
     
  3. Malum Prohibitum

    Malum Prohibitum Member

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    Excerpt from the Order from which the plaintiff appeals:

    Because the FBI report contains a more thorough criminal history than the Defendant can obtain through a search of the Georgia Crime Information Center from her office, she must await the FBI report to be sure that the applicant does not have a criminal history falling within any of the licensing exceptions listed in the statute, Thus, receipt of the FBI report is necessary to ensure a thorough and complete examination of the applicant’s criminal history prior to the issuance of a GFL. Because this report is routinely received beyond the 60 day time period, requiring the Defendant to issue GFLs within 60 days would frustrate the purpose of the statute, which is to protect the public.


    Of course, the Order did not address the fact that this is a problem that Defendant created for herself. She refuses to request the National Instant Criminal Background Check (NICS) mandated in the licensing statute, then throws up her hands in despair and claims there is nothing for her to do but wait for the fingerprint based report from the FBI, because otherwise she will not know about crimes committed outside the state of Georgia.

    The Order never even mentioned the NICS check. :scrutiny:
     
  4. shooting time

    shooting time Member

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    Well i have been waiting since july 17th for my ga renewal i called and asked for a temp and answer was no.
     
  5. LAR-15

    LAR-15 Member

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    What are the chances of winning on appeal?
     
  6. Malum Prohibitum

    Malum Prohibitum Member

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    65.8325%, approximately . :D
     
  7. Malum Prohibitum

    Malum Prohibitum Member

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    Seriously, LAR-15, if you read the briefs at the link, I think you will have as good of an idea as anybody else what are the odds on appeal. Personally, I think they are very good!

    Shootingtime, did you request a temporary at the time of application? What county?
     
  8. shooting time

    shooting time Member

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    I did in Paulding county and to my suprise yesterday when i checked the mail there was my brand new permit
    applied on the 17 of july got it on the 18th of october
     
  9. Cacique500

    Cacique500 Member

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    All I know is it took me 115 or so days to get my Georgia permit (with the intervention of my State Senator) and it only took me 27 days (mailbox to mailbox) to get a machine gun approved.

    Go figure.
    :scrutiny:
     
  10. mzmtg

    mzmtg member

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  11. Malum Prohibitum

    Malum Prohibitum Member

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    Judge Cranford's response brief has just been filed in the Georgia Court of Appeals. Her brief is available here Here: Georgiacarry.org Update
     
  12. ctdonath

    ctdonath Member

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    In such cases, focus on the raw facts. Don't confuse it with other non-fixed issues like NICS vs. FBI fingerprint check. Judges often crave ANY reason to dismiss or remand the case.

    Fact is, the law explicitly gives a fixed 60 day window for the issuing judge to find any reason to NOT issue the license. End of 60 days, license MUST be issued unless reason not to has been found.

    Going off on tangents about whether NICS is reasonable or sorta-obligated is irrelevant.


    Yes I read the appeal. Nicely done; gets a little bogged into the NICS thing, but does make the "shall issue in 60 days" point well.
     
  13. ctdonath

    ctdonath Member

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    On the judge's response:
    The upshot of the response is that the judge, in her interpretation of the law (a stretch) contends she CANNOT issue a license until what amounts to proof of innocence is established conclusively, and that the 60-day turnaround applies only if such is established within that period - i.e., if she could instantly prove beyond any doubt that the applicant has never been condemned of any disabling condition (i.e.: felony, drug user, etc.) she has up to 60 days to give the permit.

    Does sound like the Attorney General is on the side of the judge - "unofficially" (word used FREQUENTLY).

    The case comes down to clash of political philosophies: which rules - individual freedom or police state?

    Will be interesting...
     
  14. ProguninTN

    ProguninTN Member

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    Briefs

    Having read the briefs, I have to agree with Malum Prohibitum that the Appellate Court should overturn the Coweta County Court. GA comrades, I bid you good luck.
     
  15. Malum Prohibitum

    Malum Prohibitum Member

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    1978. This was before any of these other checks and computerized records existed.
     
  16. Malum Prohibitum

    Malum Prohibitum Member

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    She goes further than this. Recall the NICS issue. She responded that she does request the NICS check. Accordingly, she has all this information instantly (much less within 60 days).

    Her point is that this is not enough. She is contending that she must also have the fingerprint based NCIC check back from the FBI, which routinely takes more than 60 days. NICS shows more than NCIC (because it relates to any disqualifying factor for gun ownership, not just crimes).

    Her point is that she is avoiding issuing licenses to people who might give her a false identification, which she will "catch" when the fingerprint check comes back revealing the applicant to really be someone who has been fingerprinted in the criminal justice system. By waiting however long it takes for the fingerprint based check, she saves the day!
     
  17. Cacique500

    Cacique500 Member

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    Malum - please correct me if I'm wrong on this...

    In her reply, the judges brief refers to O.C.G.A. 16-11-129 (c)(1) referring to the GBI and FBI fingerprinting...[page 7] - when I looked up the actual code it looks like it's in O.C.G.A. 16-11-129(d)(1) - is she reading from the same code or is she pulling this out of a different playbook?? If she's not quoting the correct code that speaks volumes right there.

    The plaintiff's brief is superb and although I'm admittedly biased for the plaintiff, his brief was much more coherent and cited more case law. The judges brief smacks of 'touchy feely' to me.

    It's also interesting how they [the judge] use the excuse of potentially opening up the judge and county to potential liability if she issues a permit to someone who is not eligible to receive one (criminal record) - yet a couple of pages later she flaunts the Doctrine of Judicial Immunity - where she cannot be held liable for acts performed in her judicial capacity...Can't have it both ways Judge...

    We're still waiting for a second (wife's) permit from Henry county - will be 90 days as of Nov. 1 with no permit.
     
  18. Malum Prohibitum

    Malum Prohibitum Member

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    She is reading the old code that is no longer in effect after the General Assembly amended the licensing statute to make the license fit the federal exemption from the NICS check for gun purchases.

    The trial court judge used the same statute. That is one of the issues on appeal.

    This is just my personal opinion, but if I had to guess, she did this on purpose because her main claim is that she cannot get access to out of state criminal histories within 60 days. The new statute includes a NICS check, which of course returns criminal histories from out of state instantly, or in any event well within 60 days.
     
  19. Malum Prohibitum

    Malum Prohibitum Member

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  20. mzmtg

    mzmtg member

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    Join GeorgiaCarry.Org, they can help.
     
  21. Bergerboy

    Bergerboy Member

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    So what's the timeframe we are expecting on hearing more on the matter?
     
  22. ctdonath

    ctdonath Member

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    Response is excellent.

    Only complaint/suggestion: repsponse should include something as blunt as

    "The law states 'a report shall not be required' from law enforcement unless derogatory information relating to an applicant's eligibility is found. Appellee claims she cannot issue a permit until she receives comprehensive information exhonerating the applicant of any relevant crimes. Reducto ad absurdum: someone who should receive a permit as requested can be denied that permit because there is no information indicating that they should be denied that permit. Preposterous!"
     
  23. Malum Prohibitum

    Malum Prohibitum Member

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    Probably early next year - they have until July, but I do not believe it will take that long.
     
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