364 Ga. App. 138
Ga. Ct. App.2022Background:
- On May 6, 2019 Gregory Hise applied for a Georgia weapons carry license (GWCL) from Chatham County Probate Judge Thomas Bordeaux; Bordeaux denied the application that same day citing a 1979 out-of-state misdemeanor assault conviction.
- Hise sued in superior court for a writ of mandamus; the superior court granted relief and ordered Bordeaux to issue the GWCL; Bordeaux appealed to the Court of Appeals.
- While Bordeaux’s appeal was pending, Hise sued Bordeaux (officially and individually) for monetary damages, alleging violations of the Second Amendment, the Georgia Constitution, and OCGA § 16-11-173 (prohibition on local regulation of firearms).
- Bordeaux moved to dismiss, asserting judicial, sovereign, and official immunities; after the Court of Appeals affirmed the mandamus ruling and Bordeaux issued the GWCL, the superior court granted Bordeaux’s motion to dismiss Hise’s damages claims.
- Hise appealed the dismissal; the Court of Appeals affirmed, holding Hise’s individual-capacity constitutional claims barred by judicial immunity and his official-capacity statutory claim barred (and in any event not established) under sovereign-immunity principles.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bordeaux’s refusal to issue the GWCL after the superior court’s mandamus violated the Second Amendment and Georgia Constitution and supports individual damages | Hise: denial and post-mandamus refusal deprived his constitutional right to bear arms and supports damages (including under §1983) | Bordeaux: individual-capacity damages claims are barred by judicial immunity; the act was judicial in nature and within subject-matter jurisdiction | Dismissed — judicial immunity bars individual-capacity damages claims |
| Whether Bordeaux acted nonjudicially or in complete absence of jurisdiction (which would defeat judicial immunity) by refusing to comply with mandamus or by appealing | Hise: refusing to obey the mandamus was a nonjudicial act or outside jurisdiction => no immunity | Bordeaux: probate judges have statutory jurisdiction to issue GWCLs and appealing/contesting mandamus is a judicial function | Dismissed — act was judicial and within jurisdiction; immunity remains intact |
| Whether Hise may recover official-capacity damages/relief under OCGA § 16-11-173 (prohibiting county regulation of firearms) | Hise: § 16-11-173 creates a private right of action and waives sovereign immunity for local officials who regulate firearms | Bordeaux: suits against officers in official capacity are suits against the State/county and barred by sovereign immunity; no applicable waiver | Dismissed — sovereign immunity bars the official-capacity damages claim (court need not decide full scope of any waiver) |
| Whether denying a GWCL constitutes unlawful "regulation" under OCGA § 16-11-173 | Hise: a probate judge’s denial effectively regulated possession/licensing in contravention of § 16-11-173 | Bordeaux: deciding eligibility under the state licensing statute is statutory construction/application, not local regulation | Dismissed — deciding GWCL eligibility under OCGA § 16-11-129 is not "regulation" for § 16-11-173 purposes |
Key Cases Cited
- District of Columbia v. Heller, 554 U.S. 570 (U.S. 2008) (recognizes individual right to possess firearms but that right is not absolute and lists presumptively lawful regulations)
- McDonald v. City of Chicago, 561 U.S. 742 (U.S. 2010) (incorporates the Second Amendment against the states)
- Forrester v. White, 484 U.S. 219 (U.S. 1988) (establishes and explains rationale for judicial immunity)
- Stump v. Sparkman, 435 U.S. 349 (U.S. 1978) (acts normally performed by judges are protected by absolute judicial immunity)
- Mireles v. Waco, 502 U.S. 9 (U.S. 1991) (judicial immunity not lost unless acting in complete absence of all jurisdiction)
- Withers v. Schroeder, 304 Ga. 394 (Ga. 2019) (Georgia Supreme Court on scope of judicial immunity for state-law claims)
- Lathrop v. Deal, 301 Ga. 408 (Ga. 2017) (sovereign immunity bars suits against state officers in their official capacities absent a clear waiver)
- Bordeaux v. Hise, 355 Ga. App. 688 (Ga. Ct. App. 2020) (Court of Appeals decision affirming mandamus as proper remedy for GWCL denial)