Gun denial upheld by Supreme Court

Published: Nov. 4, 2013 at 1:39 PM EST|Updated: Nov. 13, 2013 at 4:36 PM EST
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ATLANTA, GA (WALB) - In the case of HERTZ V. BENNETT The Georgia Supreme Court upheld a Quitman County court ruling denying a Georgia gun license to a man who pleaded no contest to aggravated assault with a deadly weapon when he was 18 years old, nearly 20 years ago.

In 1994, James Hertz, today a nuclear power engineer, pleaded "nolo contendere" in the state of Florida to five felony charges – three counts of aggravated assault with a deadly weapon, one count of shooting from a vehicle and one count of possession of a short barrel weapon. (Nolo contendere, which means "no contest," is an alternative to a guilty or not guilty plea that is often offered as part of a plea bargain and means the person is neither admitting the charges, nor contesting them.) As a result of Hertz's plea, the Florida court withheld issuing a judgment on the charges and sentenced Hertz to three years' probation, which Hertz successfully completed.

In September 2012, Hertz applied to Quitman County Probate Judge Andrew Bennett for a "weapons carry license." On Sept. 20, 2012, his application was denied based on his 1994 nolo contendere pleas to the Florida felony charges. Hertz then sued the judge, seeking a "writ of mandamus" to force the judge to issue him the license. Following a hearing, the trial court ruled that Hertz's pleas of nolo contendere made him ineligible for a Georgia weapons license under Official Code of Georgia § 16-11-129, which states that "No weapons carry license shall be issued to:…[a]ny person who has been convicted of a felony by a court of this state or any other state."

The statute defines "convicted" as "a plea of guilty or a finding of guilt by a court of competent jurisdiction or the acceptance of a plea of nolo contendere…."  Hertz then appealed to the state Supreme Court. He argued that a nolo plea in Florida that results in 'adjudication withheld' is equivalent to a nolo plea in Georgia that results in first offender treatment. And under § 16-11-129, a person who successfully completes first offender treatment "shall be eligible for a weapons carry license provided that no other license exception applies." Hertz also argued that the denial of a weapons license violated his constitutional right to keep and bear arms.

In today's opinion, Justice Carol Hunstein writes that "[b]ecause Hertz's nolo contendere plea makes him ineligible for a weapons carry license under Georgia law, and the statute as applied to him does not violate the United States or Georgia Constitutions, we affirm" the lower court's decision.

"Even if Hertz's aggravated assault and other non-drug crimes had been resolved by first offender treatment in Georgia, he would not be eligible for a weapons carry license," the 17-page opinion says. "The first offender provision in subsection (b) (3) does not extend to first offender treatment for any offense, but rather is limited to convictions of the controlled substance offenses listed in subparagraphs (F) and (I) of subsection (b) (2)."

As to Hertz's challenge that the denial of a weapons license violates his federal right to bear arms, the "law being challenged here does not involve the core Second Amendment right to possess a firearm for self-defense in one's home," the opinion says. "Under [Official Code of Georgia] § 16-11-126, Hertz has the right to possess a handgun inside his home, motor vehicle, or place of business without a weapons carry license."

"[Official Code of Georgia] § 16-11-129 regulates the ability of citizens to carry a weapon in public. The goal is to protect the safety of individuals who are in public places, which has been identified as a substantial government interest."

"The statute meets this public safety objective by banning the carrying of a handgun without a license only in public, not on one's property or inside one's home, and by limiting the disqualification to certain classes of people, including those who are younger than 21 years of age, mentally ill, or prior violators of the law," today's opinion says. "Of particular relevance here, the statute makes ineligible persons who have previously been found by a court to have committed a felony or carried guns illegally."

Contrary to what Hertz contended, he was not a law-abiding citizen without a criminal record when he applied for the gun license. "In 1994, Hertz appeared in open court and acknowledged that the State could prove that he had committed serious felonies involving firearms….Before the Florida court accepted his plea of nolo contendere, the trial judge had to determine that there was a factual basis for the plea and that Hertz was entering it voluntarily. Given this criminal history, we hold that the probate judge did not violate Hertz's Second Amendment right to bear arms by denying his application for a license to possess a weapon in public."

Hertz also argued that the statute violated Georgia's Constitution. But the high court disagrees. "Under these circumstances, we hold that denying him a license to carry a weapon outside his home, car, and place of business does not violate his state constitutional right to bear arms," the opinion says.

In a concurrence, Justice Keith Blackwell writes that he agrees with the opinion, but wants to emphasize that "no one should misunderstand the Court to suggest that constitutional guarantees extend only as far as the home."

"To the contrary, the Court today applies intermediate scrutiny to [Official Code of Georgia] § 16-11-129, and in so doing, it acknowledges that the constitutional guarantees secure a right to carry firearms in public places, even if that right might be more limited than the right to keep firearms in the home."

"Second, our decision today is a limited one," says the concurrence, which is joined by Presiding Justice P. Harris Hines and Justice David Nahmias. "[A]lthough the court did not enter a formal adjudication of guilt, it found a factual basis for the plea….In these peculiar circumstances, the Court concludes that the State of Georgia may – consistent with the constitutional guarantees of the right to keep and bear arms – deny Hertz a license to carry firearms in a public place."

Attorney for Appellant (Hertz): John Monroe

Attorneys for Appellee (Bennett): Berrien Sutton, Chad Corlee