Hertz v. Bennett

• Decision Date: 04 November 2013
• Docket Number: No. S13A1288.,S13A1288.
• Citation: 751 S.E.2d 90,294 Ga. 62
• Parties: HERTZ v. BENNETT.
• Court: Georgia Supreme Court

294 Ga. 62

751 S.E.2d 90

HERTZ

v.BENNETT.

No. S13A1288.

Supreme Court of Georgia.

Nov. 4, 2013.

John R. Monroe, Roswell, for appellant.

Chad Reynolds Corlee, Berrien L. Sutton, Homerville, for appellee.

Jeffrey L. Milsteen, Deputy Atty. Gen., Samuel S. Olens, Atty. Gen., Nels Stefan David Peterson, Asst. Atty. Gen., Joseph J. Drolet, Senior Asst. Atty., Britt Cagle Grant, Asst. Atty. Gen., Atlanta, amici curiae.

HUNSTEIN, Justice.

Probate Judge Andrew Bennett denied James Hertz's application for a license to carry a weapon under OCGA § 16–11–129 based on Hertz's 1994 nolo contendere plea to five felony charges in Florida. Hertz filed a complaint for mandamus in superior court, alleging the denial violated the state statute and his constitutional right to keep and bear arms. Denying mandamus, the superior count found that the probate judge followed the statutory requirements in denying Hertz's application and that this denial did not violate the federal or state constitutions. Because 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.

When he was 18, Hertz entered a plea of nolo contendere in the Escambia County Circuit Court to 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. He was sentenced to three years' probation and six months' community control, which he successfully completed. In September 2012, Hertz filed an application for a weapons carry license in Quitman County, Georgia. When asked whether he had ever been convicted of, or pled guilty or nolo contendere to, any felony offense, he answered “yes,” a fact confirmed by a criminal background check. After his application was denied, Hertz filed a complaint for mandamus, seeking to compel the probate judge to issue a weapons carry license on the grounds that he was a law-abiding citizen and met all the requirements of OCGA § 16–11–129. Alternatively, Hertz alleged that the denial of the license violated his right to keep and bear arms under the Second Amendment of the United States Constitution and Article I, Section I, Paragraph VIII of the Georgia Constitution.

1. Hertz first contends that the superior court erred in finding him ineligible for a weapons license based on his nolo contendere plea. Because adjudication was withheld under Florida law, he argues that his nolo contendere plea in that state was the equivalent of first offender treatment under Georgia law, which he asserts would not disqualify him from obtaining a weapons carry license. See OCGA § 16–11–129(b)(3).

To obtain the right to the extraordinary remedy of mandamus, the petitioner must show either a clear legal right to the relief sought or a gross abuse of discretion. Dougherty County v. Webb, 256 Ga. 474(1), 350 S.E.2d 457 (1986). OCGA § 16–11–129 sets out the requirements for obtaining a state license to carry a weapon, whether openly or concealed.¹ Among the 10 exceptions that disqualify a person from obtaining a license is a felony conviction.

(2) No weapons carry license shall be issued to:

...

(B) Any person who has been convicted of a felony by a court of this state or any other state ... and has not been pardoned for such felony by ... the person or agency empowered to grant pardons under the constitution or laws of such state....

OCGA § 16–11–129(b)(2)(B). The term “convicted” is defined in the statute 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.” Id. at (b)(1)(B). Under subsection (b)(3), persons who have successfully completed a first offender sentence for specified controlled substance offenses are not disqualified from obtaining a weapons carry license under certain circumstances.²

Applying the language of the licensing statute in this case, Hertz was disqualified from receiving a weapons carry license due to the acceptance of his nolo contendere plea in Florida. He indicated on his application that he had been convicted of, or pled guilty or nolo contendere to, a felony offense, and the probate judge received a Federal Bureau of Investigation report that confirmed Hertz's plea of nolo contendere to felony offenses in Florida. There is no evidence in the record that Hertz has been granted a pardon for his felony conviction. Cf. Ferguson v. Perry, 292 Ga. 666(2), 740 S.E.2d 598 (2013) (convicted felon entitled to weapons license based on parole board's order removing legal disabilities and restoring his civil and political rights). 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 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). Because Hertz has not shown that he had a clear legal right to the weapons carry license or that the probate judge committed a gross abuse of discretion in denying him a license under OCGA § 16–11–129, the superior court properly denied mandamus.

2. Hertz next argues that this denial of a weapons license violates his federal right to bear arms. This as-applied challenge is premised on his assertion that he is a law-abiding citizen who was never convicted of a crime because the Florida court withheld adjudication and did not find him guilty.

The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This amendment guarantees the individual “right of law-abiding, responsible citizens to use arms in defense of hearth and home.” District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); see McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (holding that the Second Amendment applies to the states under the Fourteenth Amendment). In Heller, the Supreme Court struck down a District of Columbia law that prohibited citizens from possessing handguns in the home, determining that “banning from the home the most preferred firearm in the nation to keep and use for protection of one's home and family would fail constitutional muster” under any standard of scrutiny. Id. at 628–629, 128 S.Ct. 2783 (citation and punctuation omitted). The Court stated, however, that the right is not unlimited. Id. at 595, 626, 128 S.Ct. 2783.

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Id. at 626–627, 128 S.Ct. 2783. The Court noted that this list of “presumptively lawful regulatory measures” is not exhaustive. Id. at 627, n. 26, 128 S.Ct. 2783.

(a) In analyzing laws challenged under the Second Amendment, the federal circuit courts of appeal have generally adopted a two-step inquiry, considering first whether the challenged law imposes a burden on conduct protected under the Second Amendment and then applying the appropriate level of scrutiny. See National Rifle Ass'n v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 194 (5th Cir.2012) (listing cases); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260 n. 34 (11th Cir.2012) (“[l]ike our sister circuits, we believe a two-step inquiry is appropriate”). When a law prohibits conduct included in the examples of “presumptively lawful regulatory measures,” some courts have upheld the statute under the initial step of the inquiry. See, e.g., United States v. White, 593 F.3d 1199 (11th Cir.2010) (upholding statutory prohibition against the possession of firearms by persons convicted of misdemeanor domestic violence as a presumptively lawful prohibition on firearm possession). In particular, many courts have followed this approach in rejecting challenges by convicted felons to felon-in-possession bans. See, e.g., Chardin v. Police Commissioner of Boston, 465 Mass. 314, 989 N.E.2d 392, 402 (2013) (statute that bars persons adjudicated delinquent for the commission of a felony from obtaining a license to carry firearms falls outside the scope of the Second Amendment); State v. Craig, 826 N.W.2d 789, 798 (Minn.2013) (defendant who had prior felony conviction involving possession of a controlled substance is categorically unprotected by the Second Amendment); Pohlabel v. State, 268 P.3d 1264, 1267 (Nev.2012) (upholding state felon-in-possession ban because presumptive right of law-abiding citizens to use arms in the home in self-defense does not extend to felons).

For purposes of federal constitutional analysis, we assume that the Florida court's withholding of adjudication of guilt in Hertz's case means that Hertz was not convicted of a felony. Based on this assumption, we accept Hertz's argument that he falls within a class of persons who have rights protected under the Second Amendment.

(b) The Supreme Court did not specify in Heller or McDonald the level of scrutiny that courts should apply in evaluating conduct protected under the Second Amendment, other than to state that the rational basis test was not appropriate. Heller, 554 U.S. at 628 & n. 27, 128 S.Ct. 2783. The appropriate level of scrutiny “depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” United States v. Chester, 628 F.3d 673, 682 (4th Cir.2010). While a severe burdenon the core right of armed self-defense in the home requires strong justification, “ ‘laws that merely...