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Columns John Ruch

How a gun-ban debate is also challenging Rivian, property taxes and other uses of public land

A handgun. (Photo by Thomas Def via Unsplash.)

By John Ruch

Gun rights activist Phillip Evans’s legal challenges to firearm bans at Music Midtown and Zoo Atlanta have stirred emotional responses to the role of deadly weapons in public life.

But behind that heat are the coolly precise arguments of what has become one of the most influential Georgia legal battles in years on a fundamental question: Does the public indeed control public land and public money?

Evans’ lawsuit against the Atlanta Botanical Garden’s gun ban, which concluded this year, not only laid the groundwork for other such challenges — it also became a crucial precedent cited by the judge who last month rejected eye-popping tax breaks for the controversial Rivian electric vehicle plant.

Coming full circle, Evans’ former attorney is once again involved in a lawsuit against the Garden, this time questioning its property tax exemption on the same legal principle behind the gun argument. While it seems unlikely the Garden will end up on the hook for taxes in practical terms, the case illustrates the lingering murkiness around many of the contracts where private entities get to use public land in deals that often go unexamined for years or even misunderstood by their own parties.

How are Rivian and property taxes wrapped up in gun cases? Because the gun ban disputes are not really about guns per se; they’re about property rights and what kind of tenant has enough of them to ban guns.

It’s a reminder that power resides with those who read the fine print when politicians make big, distracting, emotional announcements. However you feel about guns and EVs, that power is now being used by rebellious populists to challenge huge institutions – a trend that anyone, with a little legal help, can join.

The debates over gun rights and Rivian both came from such splashy announcements by Gov. Brian Kemp. Earlier this year, he signed a “Constitutional carry” bill allowing license-free toting of guns after being pressured from the populist right by primary challenger David Perdue. Late last year, he announced the massive Rivian plant in Morgan and Walton counties – but not the local impacts and humongous tax breaks that have since spawned protesters and lawsuits.

Constitutional carry generated enormous debate about potential consequences, most of it unquantifiable heat over the fantasy of shooting a bad guy or the nightmare of shooting innocent people. As I noted at the time, far more significant than the sheer ability to carry is the legal limit on where you can carry. And it happened that Evans’ lawsuit against the Garden, which would make a major clarification to the right to carry on public land, was about to wrap up after years of winding through the courts.

A gist of Georgia firearms law is that private property owners and tenants can ban guns, but the government cannot ban guns from public lands, such as parks. (There are exceptions, such as secured government buildings.) That left a big point of confusion about private institutions and events that operate within city parks – a common practice in Atlanta, from the Garden to the zoo to major festivals.

Evans’ case produced a Supreme Court of Georgia precedent that ruled that on public land, the ability to ban guns depends on the property rights the private tenant has. One kind is a “usufruct,” where the tenant essentially has no rights beyond occupying the land, typically for a short term – and thus can’t ban guns. The other is an “estate for years,” where the tenant has rights strong enough to make it essentially private property – and thus can ban guns. Rather remarkably, the Garden’s deal with the City for its site within Piedmont Park did not specify what kind of property rights were involved.

Evans eventually lost when the Georgia Court of Appeals ruled the deal is an estate for years. But in losing, he won the precedent that empowers the challenges of gun bans on public land tenants that apparently are usufructs, such as Music Midtown and the zoo.

As Evans’ attorney in that case, John Monroe, noted in filings at the time, the type of tenancy also can affect property tax liability. Usufruct tenants are not on the hook for taxes, but estate-for-years tenants may be responsible for some or all.

That became a key point in the state’s attempt to give Rivian over a billion dollars in various tax breaks. Such tax breaks are in fact unconstitutional, but there are legal workarounds used routinely by state and local governments involving phantom bond transactions and property lease-backs. However, Ocmulgee Judicial Circuit Chief Judge Brenda H. Trammell last month rejected that deal, including a claim that Rivian would be a usufruct tenant exempt from property taxes. (The state and a local development authority are appealing.) Using the Court of Appeals decision in the Garden gun case as “controlling,” Trammell ruled that Rivian would in fact hold an estate for years and thus be liable for taxes. It was a major win for local protesters who say the industrialization of rural land is changing their life without their input and with pollution impacts.

Meanwhile, back at the Garden, Monroe is now representing two Fulton County taxpayers – both of them also gun rights activists through previous lawsuits or the group GA2A – in challenging that institution’s property tax exemption. The Garden’s property is listed in Fulton County property records as exempt because it is owned by the City of Atlanta. The plaintiffs argue in the lawsuit, filed in August, that the Garden’s estate for years status – established in the gun case – means the property is private and should be taxed somewhere in the vicinity of $11.9 million. The lack of taxation unfairly shifts the taxation burden to them and others, they say.

The defendants – the City, the Fulton County Board of Assessors and the Fulton tax commissioner – have argued in court filings that the claim is nonsense and that the plaintiffs have no right to sue or actual controversy to sort out. “This lawsuit is an attempt to exact revenge on the Atlanta Botanical Garden… after it refused to allow a visitor to the gardens to ‘open carry’ a weapon…,” City lawyers said in a court filing.

The defendants also argue that the Garden is a nonprofit that would be tax-exempt anyway. That’s an issue the plaintiffs dance around as unproven so far in court documents. “If they want to claim they are exempt because they are a charity, they will have to prove that as well, and just being a charity does not necessarily make all your property exempt,” said Monroe in an email.

The Garden owns and operates another facility in Gainesville, which is tax-exempt based on the organization’s status as a public charity, according to a Hall County spokesperson and property records. So it’s hard to see the Piedmont Park mothership getting hit with a $12 million tax bill, though the case might nudge a change in the reasoning for the tax exemption.

However, the case underscores the theme of a lack of scrutiny on the private use of public land in deals that in many cases are decades old. Zoo Atlanta, which operates its facility via an obscure and sometimes controversial body called the Atlanta-Fulton County Recreation Authority, either did not know or would not admit its deal is a usufruct until SaportaReport recently obtained its operating agreement. A 2020 audit of the privately run, City-owned amphitheaters at Chastain Park – where Evans also has considered a gun-ban challenge – and Lakewood found oversight and fund diversion issues that had festered for years.

Taxation could be a significant question for private entities that are not themselves exempt. And the private-versus-public property issue can affect rights beyond those of the Second Amendment, such as the First Amendment’s rights to demonstrate or wear clothes with controversial messages.

Governments and private tenants appear to have been caught off guard by the fallout of the Garden case and Georgia’s recent gun law changes. They seem to be keeping quiet in the hopes they will go away or go unnoticed. That’s unlikely with Evans testing bans wherever he finds them. It’s bad policy on a public-private regime that needs more sunlight in general.

Every splashy political announcement has on-the-ground consequences. Every deal has fine print. Knowledge really is power, context is omnipotence, and the future of public spaces may be shaped by those who can use “usufruct” and other legal obscurities to their advantage.

 

Update: This story has been updated with comment from attorney John Monroe.

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4 Comments

  1. Tevin November 1, 2022 1:51 pm

    Why is that the names of these plaintiffs never posted?Report

    Reply
  2. Phillip Evans November 1, 2022 3:58 pm

    Thanks for your report, John!

    The bottom line is that government cannot have its cake and eat it too. Political shenanigans that either violate citizens’ basic human rights, or that shift an unfair tax burden to them using slight-of-hand business deals should be exposed and quashed.Report

    Reply
  3. Mark Curtis November 1, 2022 5:23 pm

    Exactly! This is the point of these lawsuits. Being “charities”, exempt, and use or conversion of public lands for profit is exactly what GA2A is using as a lever to insist upon a constitutional right…. Or get caught in the tax implications.Report

    Reply
  4. A Ritchie November 3, 2022 2:59 pm

    ‘Rebellious populists’ ? You mean people that understand their constitutional rights and expect them to be respected?Report

    Reply

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