08 LC 28
3829
House
Bill 915
By:
Representatives Bearden of the
68th,
Jerguson of the
22nd,
Franklin of the
43rd,
Everson of the
106th,
Rice of the
51st,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
enact the "Second Amendment Protection Act of 2008"; to amend Article 4 of
Chapter 11 of Title 16 of the Official Code of Georgia Annotated, relating
to dangerous instrumentalities and practices, so as to prohibit persons from
attempting to solicit, persuade, encourage, or entice any dealer to transfer or
otherwise convey a firearm other than to the actual buyer; to prohibit persons
from aiding and abetting such actions; to provide for exceptions; to provide for
penalties; to change certain provisions regarding the transportation and
carrying of certain firearms and other weapons; to require firearm licenses to
be issued more quickly; to provide for temporary licenses for initial applicants
when licenses are delayed without cause; to provide for a cause of action and
civil remedies where a license or renewal license is not timely issued; to
prohibit certain confiscation or registration of legally owned and carried
firearms during certain emergency conditions; to provide for exceptions; to
provide for civil penalties; to amend Code Section 38-3-51 of the Official Code
of Georgia Annotated, relating to the emergency powers of the Governor, so as to
limit the Governor´s emergency powers with respect to firearms; to provide
for related matters; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
This
Act shall be known as and may be cited as the "Second Amendment Protection Act
of 2008."
SECTION
2.
Article
4 of Chapter 11 of Title 16 of the Official Code of Georgia Annotated, relating
to dangerous instrumentalities and practices, is amended by adding a new Code
Section to read as follows:
"16-11-113.
(a)
Any person who attempts to solicit, persuade, encourage, or entice any dealer to
transfer or otherwise convey a firearm other than to the actual buyer or who
willfully and intentionally aids or abets any such person shall be guilty of a
felony and, upon conviction thereof, shall be punished by imprisonment for a
period of not less than one nor more than ten years or by a fine not to exceed
$25,000.00, or both.
(b)
This Code section shall not apply to a federal law enforcement officer or a
peace officer as defined in paragraph (2) of Code Section 35-8-2 in the
performance of his or her duties or other person under such officer´s
direct supervision."
SECTION
3.
Said
article is further amended by revising Code Section 16-11-126, relating to the
offense of carrying a concealed weapon, as follows:
"16-11-126.
(a)
A person commits the offense of carrying a concealed weapon when such person
knowingly has or carries about his or her person, unless in an open manner and
fully exposed to view, any bludgeon, metal knuckles, firearm, knife designed for
the purpose of offense and defense, or any other dangerous or deadly weapon or
instrument of like character outside of his or her home or place of business,
except as permitted under this Code section.
(b)
Upon conviction of the offense of carrying a concealed weapon, a person shall be
punished as follows:
(1)
For the first offense, he or she shall be guilty of a misdemeanor;
and
(2)
For the second offense, and for any subsequent offense, he or she shall be
guilty of a felony and, upon conviction thereof, shall be imprisoned for not
less than two years and not more than five years.
(c)
This Code section shall not permit, outside of his or her home, motor vehicle,
or place of business, the concealed carrying of a pistol, revolver, or
concealable firearm by any person unless that person has on his or her person a
valid license issued under Code Section 16-11-129 and the pistol, revolver, or
firearm may only be carried in a shoulder holster, waist belt holster, any other
holster, hipgrip, or any other similar device, in which event the weapon may be
concealed by the person´s clothing, or a handbag, purse, attache case,
briefcase, or other closed container. Carrying on the person in a concealed
manner other than as provided in this subsection shall not be permitted and
shall be a violation of this Code section.
(d)
This Code section shall not forbid the transportation of any firearm by a person
who is not among those enumerated as ineligible for a license under Code Section
16-11-129, provided the firearm is enclosed in a case, unloaded, and separated
from its ammunition.
(e)
This Code section shall not forbid any person who is not among those enumerated
as ineligible for a license under Code Section 16-11-129 from transporting a
loaded firearm in any private passenger motor vehicle
in an open
manner and fully exposed to view or in the glove compartment, console, or
similar compartment of the vehicle; provided, however, that any person in
possession of a valid permit issued pursuant to Code Section 16-11-129 may carry
a handgun in any location in a motor
vehicle.
(e)(f)
On and after October 1, 1996, a person licensed to carry a handgun in any state
whose laws recognize and give effect within such state to a license issued
pursuant to this part shall be authorized to carry a handgun in this state, but
only while the licensee is not a resident of this state; provided, however, that
such license holder shall carry the handgun in compliance with the laws of this
state."
SECTION
4.
Said
article is further amended by revising Code Section 16-11-127, relating to
carrying deadly weapons to or at public gatherings, as follows:
"16-11-127.
(a)(1)
Except as
provided in Code Section 16-11-127.1, a person is guilty of a misdemeanor when
he or she carries to or while at a public gathering any explosive compound,
firearm, or knife designed for the purpose of offense and
defense
A firearms
license issued pursuant to Code Section 16-11-129 shall authorize the licensee
to carry a firearm or other weapon, concealed or unconcealed, in all areas of
this state, except as specifically limited in this Code section. A license
shall not authorize this licensee to use the firearm or other weapon in a manner
that would violate any provision of state law. No local government or
state-created authority shall adopt or enforce an ordinance or resolution that
shall conflict with any provision of this Code
section.
(2)
Nothing in this Code section shall be construed to authorize a law enforcement
officer to inspect any firearm or other weapon without probable cause that a
crime has been committed.
(b)(1)
For the
purpose of this Code section, 'public gathering' shall include, but shall not be
limited to, athletic or sporting events, churches or church functions, political
rallies or functions, publicly owned or operated buildings, or establishments at
which alcoholic beverages are sold for consumption on the premises. 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
A license
issued pursuant to Code Section 16-11-129 shall not authorize a person to carry
a firearm or other weapon into a place where the carrying of weapons is
prohibited by federal law.
(2)
A license issued pursuant to Code Section 16-11-129 shall not authorize a person
to carry a firearm or other weapon into a courthouse where:
(A)
Security personnel and electronic weapons screening devices are permanently in
place at each entrance;
(B)
Security personnel electronically screen each person who enters to determine
whether such person is carrying a weapon of any kind; and
(C)
Security personnel require each person who is carrying a weapon of any kind to
leave such weapon in the possession of the security personnel while such person
is in such building.
(c)
This
Nothing in
this Code section shall
not apply
to competitors participating in organized sport shooting events. Law
enforcement officers, peace officers retired from state or federal law
enforcement agencies, judges, magistrates, solicitors-general, and district
attorneys may carry pistols in publicly owned or operated
buildings
be construed
to limit, restrict, or prohibit in any manner the existing rights of a private
property owner, unless such private property has been leased to a government
entity, and nothing in this Code section shall be construed to limit, restrict,
or prohibit in any manner the existing rights of a private tenant, private
employer, or private business
entity.
(d)
It is an
affirmative defense to a violation of this Code section if a person notifies a
law enforcement officer or other person employed to provide security for a
public gathering of the presence of such item as soon as possible after learning
of its presence and surrenders or secures such item as directed by the law
enforcement officer or other person employed to provide security for a public
gathering
A person who
is in compliance with this Code section shall be authorized to carry a firearm
or other weapon in all areas of this state notwithstanding any other provision
of law to the contrary, including, but not limited to, Code Sections 12-3-10,
16-11-34.1, 16-11-127.1, 16-12-123, 16-12-127, 27-3-1.1, 27-3-6, and
27-4-11.1."
SECTION
5.
Said
article is further amended by revising paragraph (1) of subsection (a) of Code
Section 16-11-127.1, relating to carrying weapons within school safety zones, at
school functions, or on school property, as follows:
"(1)
'School safety zone' means in, on, or within 1,000 feet of any real property
owned by or leased to any public
or
private elementary school, secondary
school, or school board and used for elementary or secondary education and in,
on, or within 1,000 feet of the campus
of any
public or private technical school, vocational school, college, university, or
institution of postsecondary
education."
SECTION
6.
Said
article is further amended by repealing and reserving Code Section 16-11-128,
relating to carrying pistol without license, in its entirety.
SECTION
7.
Said
article is further amended by revising subsection (d) of Code Section 16-11-129,
relating to a license to carry a pistol or revolver and temporary renewal
permits, as follows:
"(d)
Investigation of
applicant; issuance of license; renewal.
(1)
For both license applications and requests for license renewals, the judge of
the probate court
shall, within
two business days following the receipt of the application or
request, direct the law enforcement agency
to request a fingerprint based criminal history records check from the Georgia
Crime Information Center and Federal Bureau of Investigation for purposes of
determining the suitability of the applicant and return an appropriate report to
the judge of the probate court. Fingerprints shall be in such form and of such
quality as prescribed by the Georgia Crime Information Center and under
standards adopted by the Federal Bureau of Investigation. The Georgia Bureau of
Investigation may charge such fee as is necessary to cover the cost of the
records search.
(2)
For both license applications and requests for license renewals, the judge of
the probate court
shall, within
two business days following the receipt of the application or
request, also direct the law enforcement
agency to conduct a background check using the Federal Bureau of
Investigation´s National Instant Criminal Background Check System and
return an appropriate report to the probate judge
within 30
days.
(3)
When a person who is not a United States citizen applies for a license or
renewal of a license under this Code section, the judge of the probate court
shall direct the law enforcement agency to conduct a search of the records
maintained by the United States Bureau of Immigration and Customs Enforcement.
As a condition to the issuance of a license or the renewal of a license, an
applicant who is in nonimmigrant status shall provide proof of his or her
qualifications for an exception to the federal firearm prohibition pursuant to
18 U.S.C. Section 922(y).
(4)
The law enforcement agency shall
notify
report
to the judge of the probate court within
50
30
days, by telephone and in writing, of any findings relating to the applicant
which may bear on his or her eligibility for a license or renewal license under
the terms of this Code section. When no derogatory information is found on the
applicant bearing on his or her eligibility to obtain a license or renewal
license, a report shall not be required.
When the law
enforcement agency fails to report to the probate judge within 30 days as
required by this Code section, there shall be a rebuttable presumption that no
derogatory information is found. The law
enforcement agency shall return the application and the blank license form with
the fingerprint thereon directly to the judge of the probate court within such
time period. Not later than
60
45
days after the date of the
application,
the judge of the probate court shall issue the applicant a license or renewal
license to carry any pistol or revolver
if
no
unless
facts establishing ineligibility have been reported
and
if
or
unless the judge determines the applicant
has
not
met all the qualifications, is
not
of good moral character,
and
or
has
complied
failed to
comply with
all
any
of the requirements contained in this Code
section."
SECTION
8.
Said
article is further amended by revising Code Section 16-11-129, relating to a
license to carry a pistol or revolver and temporary renewal permits, by adding a
new subsection to read as follows:
"(j)
When an eligible applicant who is a United States citizen fails to receive a
license, temporary permit, or renewal license within the time period required by
this Code section and the application or request has been properly filed, the
applicant may bring an action in mandamus or other legal proceeding in order to
obtain a license, temporary license, or renewal license, and such applicant
shall be entitled to recover his or her costs in such action, including
reasonable attorney´s fees."
SECTION
9.
Said
article is further amended by adding a new Code Section to read as
follows:
"16-11-135.
(a)
No officer or employee of the state or any political subdivision thereof, member
of the National Guard in the service of the state, or any person operating
pursuant to or under color of state law, receiving state funds, under control of
any official of the state or political subdivision thereof, or providing
services to such officer, employee, or other person, while acting during a
declared official state of emergency, shall:
(1)
Temporarily or permanently seize, or authorize seizure of, any firearm the
possession of which is not prohibited under Article 4 of Chapter 11 of this
title, other than as evidence in a criminal investigation;
(2)
Require registration of any firearm for which registration is not required by
Article 4 of Chapter 11 of this title;
(3)
Prohibit possession of any firearm, or promulgate any rule, regulation, or order
prohibiting possession of any firearm, in any place or by any person where such
possession is not otherwise prohibited by Article 4 of Chapter 11 of this title;
or
(4)
Prohibit the carrying of firearms by any person otherwise authorized to carry
firearms under Article 4 of Chapter 11 of this title, solely because such person
is operating under the direction, control, or supervision of an agency of the
state or political subdivision thereof during a declared official state of
emergency.
(b)
Any individual aggrieved by a violation of this Code section may seek in the
courts of this state relief in an action at law or in equity or other proper
proceeding for redress against any person who subjects such individual, or
causes such individual to be subjected, to the deprivation of any of the rights,
privileges, or immunities provided by this Code section.
(c)
In addition to any other remedy at law or in equity, an individual aggrieved by
the seizure or confiscation of a firearm in violation of this Code section may
bring an action for return of such firearm in the superior court of the county
in which that individual resides or in which such firearm is located. In any
action or proceeding to enforce this Code section, the court shall award the
prevailing party, other than the state or political subdivision thereof,
reasonable attorney fees."
SECTION
10.
Code
Section 38-3-51 of the Official Code of Georgia Annotated, relating to the
emergency powers of the Governor, is amended by revising paragraph (8) of
subsection (d) as follows:
"(8)
Suspend or limit the sale, dispensing, or transportation of alcoholic beverages,
firearms,
explosives, and combustibles;
provided,
however, that any limitation on firearms under this Code section shall not
include an individual firearm owned by a private citizen which was legal and
owned by that citizen prior to the declaration of state of emergency or disaster
or thereafter acquired in compliance with all applicable laws of this state and
the United States; and".
SECTION
11.
All
laws and parts of laws in conflict with this Act are repealed.