Firearms at Polling Places – The Law in Georgia

With the upcoming election, we at U.S. Law Shield thought it important to remind our members as to the laws in their state regarding firearms at polling places. We turned to U.S. Law Shield of Georgia Independent Program Attorney Matt Kilgo for his input.

U.S. Law Shield of Georgia Independent Program Attorney Matthew Kilgo
U.S. Law Shield of Georgia Independent Program Attorney Matthew Kilgo

Here is what Kilgo has to say:

“Firearms are generally excluded from polling places in Georgia, except in limited circumstances. O.C.G.A. §21-2-413 excludes firearms carry within 150 feet of any polling place, permitting carry only to “peace officers regularly employed by the federal, state, county, or municipal government or certified security guards.”

“The carry of firearms by any unauthorized individual is further criminalized by O.C.G.A. §16-11-127(b)(7), which makes it a misdemeanor to carry a weapon (or long gun) “within 150 feet of any polling place when elections are being conducted and such polling place is being used as a polling place”. A conviction for this offense carries a maximum penalty of twelve months in custody and $1000 in fines; additionally, a conviction for possession of a weapon or long gun in an unauthorized location will result in a revocation of the offender’s Weapons Carry License for a minimum period of five years, a period that will not begin to run until any term of probation associated with the conviction ends.

“Other than the exception for peace officers and certified security guards, however, there do exist special exceptions to carry in polling places in Georgia. As with other locations specifically listed in O.C.G.A. §16-11-127 where the carry of firearms by licensed or unlicensed individuals is prohibited (government buildings without a license; courthouses; jails and prisons; places of worship, state mental health facilities; and nuclear power plants), there exists an exception for carry for an individual who identifies himself or herself as being in possession of a firearm. O.C.G.A. §16-11-127(d)(2) provides the restrictions on carry in these locations (the “subsection b” restrictions listed above) shall not apply

[t]o a license holder who approaches security or management personnel upon arrival at a location described in subsection (b) of this Code section and notifies such security or management personnel of the presence of the weapon or long gun and explicitly follows the security or management personnel’s direction for removing, securing, storing, or temporarily surrendering such weapon or long gun; . . .

“O.C.G.A. § 16-11-127(d)(2). The option would then exist to carry, but only to the extent the lawful WCL holder notify security of the presence of the firearm (cutting against the rationale for concealed carry) and to surrender the firearm if required (not likely something anyone with a passing familiarity with the Second Amendment would allow). This may not be the only way to legally carry to the polls, however.

“There exists a controversial argument that carry in a polling place is authorized to lawful license holders by virtue of the polling place’s designation as a “government building”. Begin with the notion that O.C.G.A. §16-11-127(e)(1) allows a Weapons Carry License holder to enter a government building in possession of a weapon or long gun when entry is not restricted by security personnel, one of whom must be a certified peace officer. A government building is defined by the same statute as “the building where a government entity meets in its official capacity” (O.C.G.A. §16-11-127(a)(2)(B)), while a government entity is “an office, agency, authority, department, commission, board, body, division, instrumentality, or institution of the state or any county, municipal corporation, consolidated government, or local board of education within this state.” O.C.G.A. §16-11-127(a)(3)(emphasis added). A polling place is “the room provided in each precinct for voting at a primary or election.” O.C.G.A. §21-2-2(27).

“Any local Georgia county Board of Elections could easily be found to fit the definition of a government entity, in which case any building where that particular government entity “meets in its official capacity” would be considered a government building, in which case the rules on permissible carry by a WCL holder would apply. In shorthand:

BOARD OF ELECTIONS = GOVERNMENT ENTITY; THEREFORE

POLLING PLACE = GOVERNMENT BUILDING; THEREFORE

LAWFUL CARRY PERMISSIBLE BY WCL HOLDER IN POLLING PLACE

“If this is true, then not only would lawful carry be permissible (for a license holder only), any valid WCL holder who entered a polling place secured by a peace officer as described above would qualify for the statutory right of retreat:

A license holder shall be authorized to carry a weapon in a government building when the government building is open for business and where ingress into such building is not restricted or screened by security personnel. A license holder who enters or attempts to enter a government building carrying a weapon where ingress is restricted or screened by security personnel shall be guilty of a misdemeanor if at least one member of such security personnel is certified as a peace officer pursuant to Chapter 8 of Title 35; provided, however, that a license holder who immediately exits such building or immediately leaves such location upon notification of his or her failure to clear security due to the carrying of a weapon shall not be guilty of violating this subsection or paragraph (1) of subsection (b) of this Code section.

“O.C.G.A. §16-11-127(e)(1). If this argument were to hold true, it would seem that —while the statute purports to restrict lawful weapons carry within 150 feet of the polling place— in fact, carry by a WCL holder could be legal throughout the building where the polling place is located.

“This argument raises several complications. Carry would be lawful in any polling place: what, then, if the polling place is located in a school, where carry is prohibited? What if the polling place is located in a church that chooses to prohibit carry on its own (forget for a moment the argument would categorize a church as a “government building” during polling)? What are the practical implications of such an argument?

“From a practical standpoint, no matter whether the argument is supported by statute, poll workers, Elections Boards, and law enforcement agencies have been taught “No firearms at the polls!” A perceived infraction will provoke arrest, even if the legal underpinnings of the argument are sound.

“There’s also no immediate indication this argument has been tried—much less tried successfully— in any Georgia jurisdiction. In other words: you may beat the rap, but you won’t beat the ride. It may take a judge (or jury) to determine an individual lawfully carried into a polling place based upon this argument.

“The practical advice? Leave your firearm in your vehicle when voting.”

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