Bell v. Hargrove

357 Ga.App. 802

849 S.E.2d 554

BELL

v.HARGROVE.

A20A1061

Court of Appeals of Georgia.

November 3, 2020

Reconsideration Denied November 18, 2020

Certiorari Granted May 17, 2021

John R. Monroe Monroe, Atlanta, for Appellant.

Bennett Davis Bryan, Omari J. Crawford, Atlanta, for Appellee.

Barnes, Presiding Judge.

Clinton Bell applied for a weapons carry license with DeKalb County Probate Judge Bedelia Hargrove. Based on information received during the ensuing investigation into Bell's background – specifically, that Bell had been arrested about 30 years prior on a charge of pointing a gun at another, Judge Hargrove denied Bell's application. Bell sought relief from the denial by filing a complaint for mandamus in superior court. On the parties’ cross-motions for summary judgment, the superior court ruled in Judge Hargrove's favor. Bell appeals. For reasons explained below, we affirm.

The record shows the following. On February 13, 2018, Bell submitted to Judge Hargrove his sworn application in reliance upon OCGA § 16-11-129,¹ which "sets out the requirements for obtaining a state license to carry a weapon." Hertz v. Bennett , 294 Ga. 62, 62 (1), 751 S.E.2d 90 (2013). Under that statute's subsection (a),

The judge of the probate court of each county shall, on application under oath, on payment of a fee of $30.00, and on investigation of applicant pursuant to subsections (b) and (d) of this Code section, issue a weapons carry license or renewal license valid for a period of five years to any person whose domicile is in that county or who is on active duty with the United States armed forces and who is not a domiciliary of this state but who either resides in that county or on a military reservation located in whole or in part in that county at the time of such application. Such license or renewal license shall authorize that person to carry any weapon in any county of this state notwithstanding any change in that person's county of residence or state of domicile.... Applicants shall submit the application for a weapons carry license or renewal license to the judge of the probate court on forms prescribed and furnished free of charge to persons wishing to apply for the license or renewal license.... Forms shall be designed to elicit information from the applicant pertinent to his or her eligibility under this Code section, including citizenship , but shall not require data which is nonpertinent or irrelevant, such as serial numbers or other identification capable of being used as a de facto registration of firearms owned by the applicant. The Department of Public Safety shall furnish application forms and license forms required by this Code section. The forms shall be furnished to each judge of each probate court within this state at no cost.

(Emphasis supplied.) The referenced subsection (d), which provides for the investigation of the applicant and the issuance/renewal of the license, includes that:

(1) (a) For weapons carry license applications, the judge of the probate court shall within five business days following the receipt of the application or request direct the law enforcement agency to request a fingerprint based criminal history records check from the Georgia Crime Information Center and Federal Bureau of Investigation for purposes of determining the suitability of the applicant and return an appropriate report to the judge of the probate court.^[2]

...

(2) ... [T]he judge of the probate court shall within five business days following the receipt of the application or request also direct the law enforcement agency, in the same manner as provided for in subparagraph (B) of paragraph (1) of this subsection, to conduct a background check using the Federal Bureau of Investigation's National Instant Criminal Background Check System and return an appropriate report to the probate judge.

...

(4) The law enforcement agency shall report to the judge of the probate court within 20 days, by telephone and in writing, of any findings relating to the applicant which may bear on his or her eligibility for a weapons carry license or renewal license under the terms of this Code section. When no derogatory information is found on the applicant bearing on his or her eligibility to obtain a license or renewal license, a report shall not be required. The law enforcement agency shall return the application directly to the judge of the probate court within such time period. Not later than ten days after the judge of the probate court receives the report from the law enforcement agency concerning the suitability of the applicant for a license, the judge of the probate court shall issue such applicant a license or renewal license to carry any weapon unless facts establishing ineligibility have been reported or unless the judge determines such applicant has not met all the qualifications, is not of good moral character, or has failed to comply with any of the requirements contained in this Code section. The judge of the probate court shall date stamp the report from the law enforcement agency to show the date on which the report was received by the judge of the probate court. The judge of the probate court shall not suspend the processing of the application or extend, delay, or avoid any time requirement provided for under this paragraph.

(Emphasis supplied.)

The referenced subsection (b), among other things, identifies persons to whom "[n]o weapons carry license shall be issued," including "[a]ny person who has been convicted of a felony ..."; "[a]ny person against whom proceedings are pending for any felony"; and "[a]ny person who is prohibited from possessing or shipping a firearm in interstate commerce pursuant to subsections (g) and (n) of 18 USC § 922." OCGA § 16-11-129 (b) (2) (B, C, E). Relevant here, 18 USC § 922 (g) states: "It shall be unlawful for any person ... (9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce"³ (hereafter "Federal Provision").

See generally United States v. White , 593 F.3d 1199, 1205-1206 (II) (C) (2) (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), cited in Hertz , 294 Ga. at 65 (2) (a), 751 S.E.2d 90.

In this case, on February 14, 2018, which was the day after Bell submitted his application, Judge Hargrove received a background report from the law enforcement agency. Among other things, the report showed that Bell had been arrested as an adult on May 27, 1986 by the Atlanta Police Department for the "Misdemeanor" offense of "Pointing or Aiming Gun or Pistol at Another" under OCGA § 16-11-102.⁴

On April 11, 2018, which was 56 days after Judge Hargrove received the law enforcement agency's report, she rendered her decision by "ORDER DENYING APPLICATION FOR WEAPONS CARRY LICENSE" (hereinafter, "Order"). Therein, Judge Hargrove recounted, "The Applicant's sworn Application and criminal history information revealed .... [the May 27, 1986] Charge [of] Pointing or Aiming Gun or Pistol at Another (misdemeanor)." Judge Hargrove went on to state that the "Disposition" thereof was "Unknown"; and under a column labeled "Additional Information," Judge Hargrove set out: "Need proof of disposition, police report and probation successfully completed (possible domestic violence)." The probate judge further concluded,

Based on the above, [Bell's] criminal history information is incomplete; therefore, the Court cannot determine whether the Applicant has met all the qualifications required under Georgia law and the Applicant is ineligible to receive a weapons carry license pursuant to the following provision(s) of law: ... Federal Prohibitor[ ]: 18 USC § 922 ... (g) (9) Any person who has been convicted of a misdemeanor crime of domestic violence ... [and] Georgia Prohibitor[ ] OCGA § 16-11-129 ... (b) (2) (E) Any person who is prohibited from possessing or shipping a firearm in interstate commerce pursuant to 18 USC §§ 922 (g) and (n).... IT IS ORDERED that [Bell's] Application for a Weapons Carry License is hereby DENIED.

Seeking reprieve in the superior court, Bell relied on OCGA § 16-11-129 (j), which provides:

When an eligible applicant fails to receive a license ... within the time period required by this Code section and the application ... has been properly filed, the applicant may bring an action in mandamus or other legal proceeding in order to obtain a license .... When an applicant is otherwise denied a license, ... and contends that he or she is qualified to be issued a license ..., the applicant may bring an action in mandamus or other legal proceeding in order to obtain such license. Additionally , the applicant may request a hearing before the judge of the probate court relative to the applicant's fitness to be issued such license.... If such applicant is the prevailing party, he or she shall be entitled to recover his or her costs in such action, including reasonable attorney's fees.

(Emphasis supplied.) In his superior court action, Bell alleged that he had properly completed and submitted his application to Judge Hargrove, and that he was eligible to obtain a weapons carry licence pursuant to OCGA § 16-11-129. Moreover, Bell contended, the "maximum amount of time allowed by law for [the probate judge] to issue a [weapons carry license] to an eligible applicant is 10 days after receiving the criminal background check." Bell complained that Judge Hargrove had taken more than that allotted time period to process his application, and he claimed that the judge's (eventual, but untimely) denial of his application was without any legal basis. Bell thus sought from the superior court: (i) a writ of...