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Court decision on guns in leased parkland could be bigger than ‘constitutional carry’

A publicity photo of the Atlanta Botanical Garden, which is defending its right to ban the carrying of firearms in a court case.

By John Ruch

The notion of “Constitutional carry” — the license-free toting of firearms in public — is sucking up all the Second Amendment oxygen in the Gold Dome and governor’s race these days. But a pending decision in a quietly simmering lawsuit could be more consequential in determining where those guns can be carried — specifically if it includes the Atlanta Botanical Garden at Piedmont Park.

A victory for the gun-rights advocates behind the case — whose decision is expected no later than mid-March — could open the gates to legal challenges against other privately run institutions that lease parkland around the city and state. And even if those advocates lose, they claim, a side effect could be the Garden and similar institutions finding themselves on the hook for millions in property taxes on the currently exempt sites.

Phillip Evans is the guy who started all this back in 2014 when he got kicked out of the Garden for carrying a handgun on his waistband at a family Halloween event. Evans now says he’s already considering a legal challenge to the weapons ban at the Cadence Bank Amphitheatre at Buckhead’s Chastain Park, where he wants to rock out next summer — while armed, of course.

“I’d like to see the Steely Dan concert,” Evans said. “There have been other concerts in the past I wanted to go to, but I avoided it because I wanted to carry… I just didn’t want the hassle. And see, I would never be unarmed in that part of Atlanta anyways.”

The Garden doesn’t comment on pending litigation, a spokesperson said. In court filings, the Garden essentially dismisses the whole gun-carrying argument and the notion of a property tax bill as ridiculous, deploying such phrases as “red herring” and “wild speculation.”

Since Evans and the gun-rights group GA2A, the brand new name unveiled this month for the organization formerly known as GeorgiaCarry.org, sued in 2014, the Garden has repeatedly won trial and appeals court decisions. On the other hand, it has also seen the Supreme Court of Georgia twice keep the suit alive by tossing it back to trial courts for more review. The case is now winnowed down to one issue: whether the Garden’s lease is the kind that allows it to ban guns. Yep, said a trial court; but GA2A and Evans took it up to the Georgia Court of Appeals, which could rule any day now.

State law generally allows firearms to be carried by properly licensed people on publicly owned land, including city parks. The law also allows owners and tenants of private property to ban gun-carrying. Those two concepts are in friction at the Garden, a private nonprofit operating on the City of Atlanta-owned Piedmont Park. The remaining legal question delves into arcane jargon of whether the Garden’s lease is a “usufruct,” where the City retains all ownership rights and the tenant thus can’t ban guns, or an “estate for years,” where the Garden has some ownership rights as well and thus can ban guns.

Generally speaking, a usufruct is a short-term lease and an estate for years is a long-term lease. There’s no doubt the Garden is a long-term tenant — it has been there since 1980 and its current lease, executed in 2017, runs for 50 years. And a lower court ruled it indeed holds an estate for years.

But duration isn’t the only measure of defining the nature of a lease. Another is who pays property taxes. A usufruct tenant typically doesn’t pay them — that’s the landlord’s problem. But in an estate for years, the tenant can be on the hook for some or all. Right now, the Garden’s chunk of Piedmont Park is valued at over $313 million by Fulton County tax assessors but is exempt from taxes as City property.

John Monroe, a GA2A board member and the attorney for Evans and the group in the case, says that means the Garden has to choose between having a gun ban or a tax exemption. “So if the garden wins the case about guns, they’re going to be looking at a whopping tax bill,” he said, adding he would expect some citizen to sue over the issue.

Again, the Garden’s attorneys call all of this a load of nonsense. They also claim the Garden holds a separate tax exemption under City ordinance, which Monroe says is unconstitutional, which the Garden’s court filings say is nonsense as well. The City did not respond to a comment request.

The effect of the pending ruling on similar properties is far from theoretical. Evans, a Brookhaven native who now lives in Monroe County, came to the Garden to deliberately test the gun-carrying law. And he is considering doing it again at the Chastain amphitheater, an idea he is discussing with Monroe, his attorney.

The Chastain Park amphitheater and the Cellairis Amphitheatre at Lakewood are both City-owned and both leased to concert promoter Live Nation, which bans “weapons of any kind” at shows, according to its website. Live Nation’s lease at Chastain runs through 2026 with a ten-year renewal option, and the Lakewood lease through 2034, according to copies of the agreement provided by the City. Those are long-term leases, but neither appears to use the term “usufruct” or “estate for years.”

Monroe said he’s aware of Evan’s idea of possibly challenging the Chastain weapons ban and noted that the Supreme Court decision means the lease is what determines the legality. “That may be driven somewhat by what the Court of Appeals says in the Botanical Garden case,” Monroe said of a Chastain challenge.

Live Nation did not respond to a comment request.

Evans’ challenge to the Garden’s gun ban came as a direct result of the last major expansion of gun-carrying rights in Georgia, following heated debate over a law critics dubbed “guns everywhere” for opening more areas to carrying. “Constitutional carry” has a similar political flavor and momentum. David Perdue, the Republican primary challenger to incumbent Gov. Brian Kemp, has made it a fundamental issue in the race. And legislation is already pending in the General Assembly, such as SB 319, which would eliminate the license to carry concealed or openly while retaining the ability of private property owners and tenants to ban guns.

But don’t count Evans and Monroe among the fans of constitutional carry.

“I don’t like that phrase. I don’t use it at all,” said Monroe, criticizing constitutional carry as a vague concept. He says it often used to mean a supposed right to carry guns without any legal restrictions at all, which he says is obviously untrue under many existing laws that have been upheld as constitutional.

Monroe says the current licensing process is pretty simple and inexpensive and includes a criminal background and mental health check that ensures license-holders are “the most law-abiding citizens we have.” He said he has heard concerns that removing the license requirement removes that assurance about who is carrying in public. In political terms, he notes that “there’s not a groundswell of people saying I shouldn’t need a license to drive a car.”

Evans calls constitutional carry a “nothing-burger” because even if it passed, many gun-owners would still want a license so that they could carry in other states with reciprocal license acceptance laws and so they could skip additional background checks required when buying firearms from dealers. He says lawmakers should be focused on expanding the places where guns can be legally carried.

“I don’t know that they’re gonna fix anything,” Evans said. “I think that they’re just blowhard Republicans on the outside who are Democrats on the inside.”


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