Guns and Roses—Suit to Permit Guns at Atlanta Botanical Garden to Go Forward

Georgia-carry-dot-org-logoOn Monday, May 9, 2016, the Georgia Supreme Court ruled that a lawsuit filed by a gun rights group seeking injunctive relief against the Atlanta Botanical Garden over the issue of patrons carrying weapons when visiting the attraction may go forward. A lower court had previously dismissed the lawsuit.

The unanimous decision ruled that Fulton County Superior Court Judge Gail Tusan had “improperly dismissed” the suit brought by Phillip Evans, a member of GeorgiaCarry.org, on the grounds that a judge could not preempt the garden from seeking criminal charges against someone, who has a permit, for simply carrying a weapon.

The Supreme Court said the judge in this case was wrong because the garden was not a government entity and did not have the authority to bring criminal charges. So the Supreme Court sent the matter back to the lower court for reconsideration.

The case began in in October 2014 when Evans wore his holstered gun during a visit with his family to the Atlanta Botanical Garden.

According to court filings, the Gwinnett County man walked around the garden for about three hours with his gun openly strapped to his side on Oct. 5, 2014. The complaint said no one stopped him or complained about it that time. But when the family returned a week later, the police were called and Evans was told he could not be armed while on Botanical Garden property.

Evans sued on the grounds that the land where the garden is located is owned by the city – even though the Botanical Garden is a private entity — and Georgia Law allows firearms in publicly-owned spaces except for the few specifically exempted like jails, courthouses and government building where a certified law enforcement officer provides security at entrances.

Evans suit attempted to preempt the possibility that he could be arrested if he returned to the garden with his gun. But a lower court said it could not issue an injunction to prevent the “enforcement of a criminal law” if the garden should seek criminal charges against Evans if he returns and is armed.

Judge Gail Tusan had ruled a private entity, the Botanical Garden, cannot be enjoined from banning guns.

Judge Tusan declared that GeorgiaCarry’s attempt to obtain a declaratory judgment or injunction against Atlanta Botanical Garden was the wrong legal remedy because it would have required the trial court to interpret and apply a criminal statute.

The Supreme Court said the Judge Tusan was wrong to dismiss the case for that reason.

“A declaratory judgment action is not inappropriate merely because it touches upon a question of criminal law,” Justice Carol Hunstein wrote for the unanimous court. “In fact, such an action is an available remedy to test the validity and enforceability of a statute where an actual controversy exists.”

“The relief sought is simply a declaration” that those with carry permits “may carry their respective weapons on the Garden’s premises,” Justice Carol Hustein wrote. “That relief, if granted, is simply a declaration of rights and requires no action on the part of the Garden or anyone else.”

The high court did, however, uphold only one part of the trial court’s order. The justices rejected GeorgiaCarry’s request for an injunction prohibiting Atlanta Botanical Garden from arresting licensed individuals carrying weapons at the facility, declaring the issue moot because Atlanta Botanical Garden has no authority to enforce criminal law.

While Georgia law allows firearms to be carried in many public places, they can be banned on private property.

We will continue to follow this case and report on it as things develop.