Gun rights group aims to change Georgia’s assault law, gets defense attorneys’ support

By John Ruch

A year after the headline-grabbing success of “Constitutional carry,” the influential gun-rights group GA2A is pushing a legislative agenda loaded with more ideas that could make a bang, like easing firearm-carrying in churches and government buildings.

And, just as Constitutional carry was a widely misreported distraction from far more significant gun-law changes, this year’s real legal impacts may come as overlooked surprises. How surprising? Well, the top agenda item from a group focused on self-defense against criminals is getting praise from criminal defense attorneys.

Buried at the bottom of GA2A’s agenda is a totally unsexy and downright obscure item about restoring the common-law definition of assault. But it thrilled the heck out of a bunch of lawyers I talked to last week, from a former Supreme Court of Georgia justice to the Georgia Association of Criminal Defense Lawyers.

The issue is that Georgia is in a small minority of states whose definition of assault does not depend on specific criminal intent, just on someone in viewing range being scared of being hurt by what you’re doing. That means a mistake, misunderstanding or legally justified threat can put someone on the hook for hard-time crimes like aggravated assault and even felony murder.

GA2A is worried this criminalizes legal gun-carrying and self-defense – say, a lily-livered liberal who freaks out upon seeing someone with a gun on their hip, or a crafty criminal who calls the cops on their own victim for warding them off at gunpoint. But the hypotheticals are much broader. Dissenting in a 2016 Georgia Supreme Court case, Justice Keith R. Blackwell warned that the law makes a felon out of the millions of Georgians who have mistakenly cut someone off in traffic and caused the other driver to fear a collision.

“I think reconsideration of the assault statute is long overdue,” Blackwell, who is now an attorney in private practice, told me last week. “… That obviously is a cause of concern for citizens who lawfully carry firearms. But it also is a cause of concern for other citizens, including anyone who drives a car on the highway.”

Misunderstanding gun law changes

Sociopolitical heat, life-and-death stakes, and rampant legal illiteracy among reporters and politicians make gun policy debates especially lacking in nuance even in terms of this rabidly tribal age. GA2A’s obsessive combing of Georgia law for reforms is certainly open to skepticism and debate for its “no-compromise” gun agenda. But it sometimes involves poking into underexamined areas of the law that can affect everyone – like the issue underlying the Music Midtown debate, which really was about how much the public controls public land.

Constitutional carry, which removed the license requirement for carrying concealed weapons, is a case in point. Essentially a campaign stunt by Gov. Brian Kemp, it was embraced by the right, even though many gun owners actually don’t like it, and it was pilloried by the left, which widely misunderstood it as expanding the eligibility to carry guns.

GA2A Executive Director Jerry Henry. (Photo from GA2A Facebook page.)

As I noted at the time, far more important was GA2A’s low-profile, grinding work in the courts to establish where guns could be carried – specifically, attempting to expand it to privately run venues on public land. That obscure point finally made headlines with the cancellation of the Music Midtown concert festival, whose dubious attribution to gun-carrying activism was accepted as gospel by most media and Atlanta politicians despite the lack of a legal or evidentiary basis. Much of the outrage conflated the cancellation and its guns-in-parks issue with Constitutional carry, which certainly had no legal relevance.

“It’s our belief that they weren’t selling enough tickets [and] that’s the main reason,” says GA2A Executive Director Jerry Henry about the Music Midtown brouhaha. “… In my opinion, it’s a bunch of liberal promoters and somebody said ‘guns’ and they said, ‘Yeah, that’s what it is.’” Notably, the group’s 2023 agenda does not include anything about getting guns into parks and festivals. “We want the law to stay like it is,” said Henry.

Henry remains irked about what he sees as biased reporting on Constitutional carry and misunderstandings about what it did. However, while GA2A trumpets Constitutional carry as a Second Amendment triumph, Henry agreed when I asked if it was overrated. “We’re still advocating that you get a license,” he says, as there are several advantages, including faster firearms purchases, reciprocity in other states, and compliance with federal laws in such places as school zones. Indeed, a few of GA2A’s 2023 agenda items relate to Georgia Weapons License reforms, including lowering the eligibility age from 21 to 18.

“There was another bill last year that we would’ve rather had than Constitutional carry,” said Henry. It was a package of gun reforms that included the assault statute – something that remained totally under the radar amid all the campaign-season firepower. For 2023, that change is a priority.

“I think what we would rather see than almost anything is the change in the simple assault statute because that puts you at risk,” said Henry.

No legislator is yet carrying a bill for that or any other GA2A item, said Henry, adding that such support usually emerges closer to crossover day.

Georgia’s assault definition controversy

The entwined concepts of assault and battery go back ages in English common law. There have been many tweaks and variations in different jurisdictions and in the now-separate realms of civil liability and criminal law. Very broadly speaking, battery is unwanted contact with a person causing them harm or offense, and assault is an attempt at battery or an action that makes someone believe they’re about to be a battery victim.

In most U.S. jurisdictions today, criminal assault requires proof of specific intent to scare the victim or to follow through and commit battery. But Georgia’s simple assault statute, O.C.G.A § 16-5-20, does not spell out that element. Since 1998, the Georgia Supreme Court has interpreted the law to mean that criminal assault requires only general intent to perform the act that scared the victim – regardless of whether it was intended to scare them. (In turn, that precedent was rooted in an earlier case, not flattering to gun activists, involving a shooting death during a parking dispute.) Simple assault is a minor crime, but if it involves such circumstances as a weapon or a death, it can escalate to the felony of aggravated assault or be a basis for a felony murder charge.

The most recent Georgia Supreme Court precedent on the topic came in the 2016 case Patterson v. State. The court affirmed the aggravated assault conviction for a man who struck his girlfriend’s son with a van, despite the defendant’s argument that he may have driven recklessly — a different crime — but did not intend the collision. The majority opinion emphasized the lack of a “specific intent” element in the law.

Keith R. Blackwell, an attorney and former Supreme Court of Georgia justice. (Photo from Alston & Bird website.)

Blackwell’s dissent, joined by two other justices, said the majority was misunderstanding the law because specific intent is broadly assumed as a basis for assault. He wrote that Georgia is an “outlier” in having “a form of assault so broad that, but for the grace of prosecuting attorneys, it would make felons of most Georgians.” While the state argued that no one had been wrongly prosecuted in such hypotheticals as a car accident, he said, it also could not explain why, aside from prosecutorial whim. And the defendant in Patterson certainly believed he was wronged.

That’s a concern for GA2A leaders in gun cases, though they could only cite anecdotes, not specific cases. Henry said one involved a man who laid his gun on his car dashboard when threatened by a stranger and ended up charged with aggravated assault.

“Justice Blackwell urged the legislature to fix this problem, and we are lobbying to make that happen,” said GA2A Vice President John Monroe, who is also an attorney involved in prominent gun-rights cases.

Criminal defense attorneys have expressed similar concerns. In a 2021 commentary in the Daily Report, a Georgia legal publication, attorney Andrew Fleischman noted the assault statute underlies concerns about the felony murder law, which he called “an awful kludge – a poorly written statute heaped with broad interpretations of criminal liability until its only limits are the tender mercies of Georgia prosecutors.”

W. Scott Smith, a prominent Atlanta criminal defense attorney, told me the assault statute is so broad that merely shaking a fist or drawing a gun to prevent a store robbery could qualify as aggravated assault – which comes with up to 20 years in prison. “I believe that updating the simple assault statute … to include an element of specific intent on behalf of the accused would benefit the public at large as well as people finding themselves facing an assault charge,” he said.

“The Georgia Association of Criminal Defense Lawyers supports any effort to correct criminal statutes that can be arbitrarily applied or applied without need of proving criminal intent – a common law hallmark of the American criminal jurisprudence,” said Carlos Rodriguez, a defense attorney who chairs the Decatur-based GACDL’s Media Committee.

Blackwell told me that even if worst-case hypothetical situations aren’t coming true now, that’s no reason to leave a dubious legal interpretation on the books.

“History teaches us that, when government is given a weapon that it could deploy against anyone, it too often is deployed selectively, only against those who are marginalized and out of favor with the prevailing politics of the moment,” said Blackwell. “I am a former prosecutor myself [in Cobb County], and I believe strongly that most prosecutors try very hard to do the right thing. But there are unfortunate exceptions, and in any event, even well-meaning people sometimes get it wrong. Prosecutors are people, and even the best people sometimes make mistakes.

“Accepting (as I do) that most prosecutors would not intentionally abuse their authority,” he continued, “I still think it is a mistake to give prosecutors a power that could be so easily misused, and misused with such severe consequences for the unfortunate citizen against whom it is directed.”

That’s not quite the stuff of flashy campaign ads or fevered gun debates, but it might just change how the law treats us all on an unlucky day.

Other agenda items

Here are GA2A’s other 2023 legislative items, many of which have been on the wish list for years:

• Lower the minimum age for a Georgia Weapons License
• Make more people eligible for service in the Georgia state militia because that also allows them to carry weapons like law enforcement officers
• Make churches opt-out rather than opt-in for gun-carrying rights
• Allow guns into more buildings that contain courtrooms by restricting the prohibition to those with Superior Court chambers
• Let law enforcement auction off seized guns
• Simplify campus carry laws
• Make the legal definition of firearm consistent with the federal definition by removing electrical weapons and adding an antique guns exemption
• Establish statutory damages for failure to issue a Georgia Weapons License to an eligible applicant
• Prohibit closures of gun stores in emergencies
• Establish civil liability immunity for private property owners who allow lawful guns in cases where the theory is they should have or could have restricted guns
• Make governments strictly liable for stolen guns from cars if they don’t make safe storage available when restricting guns inside buildings
• Prohibit local government from banning the discharge of firearms on properties of 10 acres or more
• Streamline the Georgia Weapons License application process and prohibit multijurisdictional databases to track firearm owners