Notable Opinions: October 7

The Court issued three notable opinions today: the first deals with Georgia's conceal and carry laws; the second deals with the appropriate standard of appellate review of jury awards on damages; and the third deals with a defendant's right to have a jury instructed on an affirmative defense for which he does not admit the facts charged.


Georgiacarry.org, Inc. v. Atlanta Botanical Garden

GeorgiaCarry.org is a case about the exceptions to Georgia's conceal and carry law, i.e., when an establishment may lawfully prohibit anyone other than a police officer from carrying a firearm on the premises.

The plaintiff organization represents persons holding conceal and carry licenses, here wishing to exercise their carry rights in the Atlanta Botanical Gardens. This, they claim, based on O.C.G.A. 16-11-127(c), which permits a person with a valid permit to carry a firearm anywhere not expressly excluded under the statute. The Botanical Gardens claim the statute provides them such an exception, allowing "private property owners or persons in legal control of private property through a lease, rental agreement, licensing agreement [etc.] . . . the right to exclude or eject a person who is in possession of a weapon." See id. 

The question presented, therefore, was "whether O.C.G.A. 16-11-127(c) permits a private organization that leases property owned by a municipality to prohibit the carrying of firearms on the leased premises?" (emphasis added).

Writing for the Court, Justice Bethel concluded that property is only "private" for purposes of the exception if the present estate in land is held by a private person; it is not enough for a private person to lease public publicly owned land. "The Court of Appeals was undoubtedly correct that the Garden has property rights in the property it leases from the City of Atlanta . . . . But that does not answer the question of whether, by virtue of the rights granted by the lease, the Garden has an 'estate' in the property." However, this conclusion begs the question of what estate in land the terms of the lease provide for -- and the lease was not included in the record on appeal. Thus, Justice Bethel wrote, the case must be remanded for further proceedings.

Justice Peterson wrote separately to say that if the lower courts found on remand that the exception did not apply to the botanical gardens, then the 2014 amendment to Georgia's conceal and carry law (which provides the language considered in the Opinion for the Court) could raise a constitutional issue about a law retroactively impairing  property rights. See, e.g., Ga. Const. Art I, Sec. I, Paragraph X ("No bill of attainder, ex post facto law, retroactive law, or laws impairing the obligation of contract or making irrevocable grant of special privileges or immunities shall be passed.”). Specifically, "the amendment [would destroy] a portion of the right to exclude others from one's property," which is one of the core rights a person can have in their property.

Perhaps signaling cases to come, Justice Peterson wrote: "[i]t should not go without noting that the consequence of our decision today is that the amendment likely was unconstitutional in almost all of its applications when it first became effective, and probably in some that still remain."

The Chief Justice and Justice Ellington did not participate in the consideration of the case.


Rockdale Hospital LLC v. Evans

Evans deals with the proper standard of appellate review for jury verdicts on damages.

The jury awarded over $1 million in past medical expenses, but nothing for future expenses, wages, and pain and suffering. Plaintiff sought additur on these latter categories, contending that the verdict was so clearly inadequate as to be inconsistent with the weight of the evidence. The trial court denied the motion, but the Court of Appeals reversed, concluding that a preponderance of the evidence did not support the award.

On cross-petitons for certiorari, the Court held that the Court of Appeals applied the incorrect standard of review: rather than a preponderance of the evidence, the proper standard in appellate review of damage awards is whether the trial court abused its discretion as to additur or remititur.


McClure v. State

McClure deals with whether a defendant who does not admit the facts charged is nonetheless entitled to have jurors instructed on the law of self-defense. Writing for the Court, Justice Ellington held the answer is yes. 

The Court of Appeals held that, because an affirmative defense admits the conduct but denies some other element of the crime (often an intent element), self-defense need only be charged if the defendant admits the conduct bringing it into play. 

"A criminal defendant is not required to 'admit' anything, in the sense of acknowledging that any particular facts are true, in order to raise an affirmative defense." Instead, he may "[accept] for the sake of argument that he committed the act alleged in a charge, the defendant may do so only for the limited purpose of raising the affirmative defense at issue." The fact that an affirmative defense is implicated where conduct is admitted does not answer the question of whether it must be affirmatively admitted, or admitted for the sake of argument. "Criminal defendants, like other litigants, are entitled to pursue alternative theories, even when those theories are inconsistent."

Writing separately, Justice Nahmias wrote that "[i]t is important to recognize, however, that what the law allows may be bad strategy for a defendant." Instead, "[p]resenting inconsistent defenses to the jury, particularly when the evidentiary support for one defense is considerably weaker than for others . . . risks losing credibility for all of the defenses."