The Northern District Court has ruled against Georgia Carry in a case they brought against the Metropolitan Atlanta Rapid Transit Authority (MARTA). According to the ruling [pdf]:
On October 14, 2008, Christopher Raissi drove to the Avondale MARTA station and parked his car in the south parking lot. He got out, went to the back of his car, and pulled out a handgun in a holster. Raissi reached behind his back and clipped the holster to the waistband of his pants. He pulled his shirt over the holster so that it was completely covered and then walked toward the station. All of this was seen by Malcolm Nicholas, a MARTA police officer who had been patrolling the parking lot.
Responding officers detained Mr. Raissi while they verified that he had a Georgia Firearms License and ran a GCIC check for warrants. After the check was completeted, Mr. Raissi’s gun was returned to him, and he was released.
Raissi claimed that he was unlawfully detained without probable cause, that it was illegal for officers to request his social security number, and that MARTA failed to respond to Open Records Act requests on the matter.
Frankly, the merits of this case are questionable at best, and I’m surprised anyone took it.
Judge Thrash ruled that Mr. Raissi’s 4th Amendment rights were not violated by the stop. His ruling is correct.
One thing to bear in mind is this: it is illegal to carry a concealed firearm in Georgia.
According to State Code 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.
Further in, an exemption is given to those who posess a Georgia Firearms License:
(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
The license grants an affirmative defense from prosecution under 16-11-126, but it does not grant the right to carry. There is an important distinction.
As per Judge Thrash:
Because a Georgia firearms license is an affirmative defense to the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon, it does not matter if there was no reason to suspect that Raissi did not have a Georgia firearms license. After Raissi concealed his handgun and started walking toward the MARTA station, he had committed all of the acts required for the crime of boarding with a concealed weapon and the crime of carrying a concealed weapon.
In this case, the officers were right to assume that a crime was being committed until such a time as Mr. Raissi provided his license. Is it right? No. But that’s the way the law is written, and that’s what judges have to work with.
This was further exacerbated by the fact that Mr. Raissi’s actions were highly suspect. Think about it. If I see a guy get out of his car, reach back in, retrieve a weapon, stick the weapon in his pants, then cover it with his shirt, I’m going to be on my guard. There’s no getting around the fact that he wasn’t acting very wisely. Unfortunately, he did it within notice of a police officer.
Now, was the officer justified in detaining him for questioning? Yes. I’m not even a lawyer, and I’ve read Michigan v. Defillippo:
This Court repeatedly has explained that “probable cause” to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.
The officer observed Mr. Raissi concealing a weapon before attempting to board public transit. Until Mr. Raissi provided an affirmative defense (in this case, his firearms license), the officer was correct in assuming that a crime was taking place. You’d think the lawyers pressing this issue would know this as well. Instead, they base their arguments on prior cases that don’t really apply here.
Most notable is their reliance on United States v. Ubiles. In the Ubiles case, the police responded to an anonymous tip before detaining the plantiff, thus raising questions as to probable cause. In the case present, the officer responded to direct observation of a possible crime in progress. There’s a bit of a difference.
Plantiffs cited several other cases regarding police interactions and firearms, but as the ruling states, “[n]one of the cases cited by the Plaintiffs were from jurisdictions that treat a firearms license as an affirmative defense.” Arguments comparing this situation to traffic stops are likewise deficient.
The central issue is with the doctrince of affirmative defense. The case quotes State of Washington v. Jason Lee Fry, in which the Washington State Court of Appeals ruled,
“Medical authorization for marijuana use is an affirmative defense (…) Affirmative defenses are evaluated at trial, not by law enforcement at earlier stages of the proceedings.”
The whole problem with affirmative defense is that the burden of proof falls on the defendant. I’m guilty of carrying a concealed firearm until I can prove an exemption to the contrary. It’s a terrible system we’ve got in this state, but attacking it obliquely in the courts isn’t going to change it. That battle belongs in the legislature.
This case is a ridiculous waste of time and taxpayers’ money. Someone should have had the professionalism to tell Mr. Raissi that, although he was inconvenienced by doing something suspicious under the wrong circumstances, he just didn’t have that much of a case.
According to his attorney,
The decision means everyone see carrying a firearm in any place that is prohibited without a license is subject to stop, arrest, and prosecution, even if they have a license.
Which is exactly where we stood before this case. The difference is that we now have it publicly confirmed by a District court.
Anyone carrying a firearm in a restaurant that serves alcohol or a state park is fair game. The same goes for police officers. A police officer carrying a firearm in a restaurant, bar, or school is subject to arrest, including a citizen’s arrest, because being a law enforcement officer is an affirmative defense and not an element of the crime.
I’m not sure what Mr. Monroe is suggesting, but I’m really hoping nobody is foolish enough to try such a thing.
He’s right about one thing, though: people lawfully carrying on MARTA from now on need to be very vigilant. This case has clarified the authority of the police to detain and inconvenience anyone they reasonably suspect to be carrying a firearm. Life just got a little more paranoid.