EVANS v. GWINNETT COUNTY PUBLIC SCHOOLS
A16A0245
Court of Appeals of Georgia
June 9, 2016
Reconsideration denied July 1, 2016
788 SE2d 577
Mercier, Judge.
Bentley C. Adams IV, for appellant.
Rosemary M. Greene, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.
OPINION
Phillip Evans appeals an order of the Superior Court of Gwinnett County dismissing his complaint against the Gwinnett County Public Schools (the “School System“). Evans contends that the trial court erred by ruling that a declaratory judgment may not issue to address the validity of a proposed future action, by ruling that the School System has sovereign immunity against state law claims, by ruling that the threat of arrest cannot constitute a Fourth Amendment violation, and by failing to consider the availability of damages as a remedy. Finding no error, we affirm.
Evans is a resident of Gwinnett County, and in 2014, his child attended public school in Gwinnett County. The school his child attended is owned and operated by the School System. Evans possesses a Georgia Weapons Carry License (“GWL“) pursuant to
During the 2014 legislative session, the General Assembly passed House Bill No. 826 and House Bill No. 60. House Bill No. 60 (“HB 60“) prohibited anyone from carrying any weapon (including a pistol or revolver) in a school safety zone, with the exception that a GWL holder is permitted to do so when he “carries or picks up” a student. See HB 60, Ga. L. 2014, p. 599. In contrast, House Bill No. 826 (“HB 826“) contained provisions that expressly conflicted with HB 60. Under HB 826, GWL holders were permitted to possess their licensed firearms within a school safety zone (a term redefined in HB 826). See HB 826, Ga. L. 2014, p. 432. The two bills contained conflicting versions of
HB 826 was signed into law by Governor Deal on April 22, 2014, while HB 60 was signed into law on April 23, 2014. See HB 60 and HB 826 supra. The version of
After the laws were passed, Evans contacted the School System to ask if, as a GWL holder, he would be permitted to carry a licensed firearm in the schools owned and operated by the School System. On July 28, 2014, an official from the School System replied to Evans. The official explained that it was still a crime for Evans to carry a firearm in the School System‘s schools unless he was picking up or dropping off a student. He explained that if Evans chose to carry a firearm in a School System school, the School System would seek to have him prosecuted, and that they might issue him a criminal trespass warning. Evans did not carry a firearm into a school system school and was not arrested or prosecuted.
On September 2, 2014, Evans filed a complaint seeking damages, along with declaratory and injunctive relief. Evans‘s complaint alleges that the School System violated his rights under
The School System filed an answer along with a motion to dismiss Evans‘s complaint on October 9, 2014. After a hearing, the trial court entered an order on February 5, 2015, granting the School System‘s motion to dismiss, dismissing all Evans‘s claims without prejudice. This appeal followed.
1. Evans argues that the trial court erred by ruling that the School System has sovereign immunity against state law claims. “We review de novo a trial court‘s grant of a motion to dismiss on sovereign immunity grounds, bearing in mind that the party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver.” Pelham v. Bd. of Regents of the Univ. System of Ga., 321 Ga. App. 791 (743 SE2d 469) (2013) (citation and punctuation omitted). Moreover, “[a] motion to dismiss asserting sovereign immunity . . . is based upon the trial court‘s lack of subject matter jurisdiction, rather than the merits of the plaintiff‘s claim.” Bonner v. Peterson, 301 Ga. 443 (687 SE2d 676) (2009) (citation omitted).
The Georgia Constitution provides:
. . . [S]overeign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.
includes county-wide school districts . . . created pursuant to Art. VIII, Sec. V, Par. I of the 1983 Georgia Constitution and
OCGA § 20-2-50 . Like the counties within which they are created, such school districts are political subdivisions of the state entitled to the sovereign immunity extended to the state.
Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995) (citation and punctuation omitted). Accordingly, Evans must show that the General Assembly specifically waived the School System‘s sovereign immunity with regard to his claims.
Evans argues that such a specific waiver can be found in
Except as provided in subsection (c) of this Code section, no county or municipal corporation, by zoning, by ordinance or resolution, or by any other means, nor any agency, board, department, commission, political subdivision, school district, or authority of this state, other than the General Assembly, by rule or regulation or by any other means shall regulate in any manner:
. . .
(B) The possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms or other weapons or components of firearms or other weapons[.]
The version of
Except as provided in subsection (c) of this Code section, no county or municipal corporation, by zoning or by ordinance or resolution, nor any agency, board, department, commission, or authority of this state, other than the General Assembly, by rule or regulation shall regulate in any manner:
. . .
(B) The possession, . . . carrying, . . . of firearms.
This version of the statute, which was applicable at the time Evans filed this action, did not specifically include school districts as did the one that became effective on July 1, 2015.
“All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it.” Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700-701 (10 SE2d 375) (1940) (punctuation omitted). Moreover, “from the addition of words it may be presumed that the legislature intended some change in the existing law.” Bd. of Assessors of Jefferson County v. McCoy Grain Exchange, Inc., 234 Ga. App. 98, 100 (505 SE2d 832) (1998) (citation and punctuation omitted). Applying these principles, if the version of
2. Moreover, Evans‘s claims are moot due to the General Assembly‘s adoption of House Bill No. 90 (“HB 90“). HB 90 was approved by Governor Deal on March 13, 2015, and states specifically that
the text of Code sections and title, chapter, article, part, subpart, Code section, subsection, paragraph, subparagraph, division, and subdivision numbers and designations as contained in the Official Code of Georgia Annotated . . . as amended by the text and numbering of Code sections as contained in the 2014 supplements to the Official Code of Georgia Annotated . . . are hereby reenacted.
HB 90, Ga. L. 2015, p. 5, § 54. The version of
The Code Revision Commission shall prepare and have introduced at each regular session of the General Assembly one or more bills to reenact and make corrections in the Official Code of Georgia Annotated, portions thereof, and the laws as contained in the Code and any pocket part, supplements, and revised volumes thereof. Except as otherwise provided by general law, such reenactment of the Official Code of Georgia Annotated shall have the effect of adopting and giving force and effect of law to all the statutory text and numbering as contained in such volumes, pocket parts, and supplements, including but not limited to provisions as published therein in accordance with subsections (a) and (b) of this Code section.
Thus, by passing HB 90 and expressly reenacting the language of
“A case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights.” Brown v. Spann, 271 Ga. 495, 496 (520 SE2d 909) (1999) (citation omitted). Here, Evans‘s entire case is predicated on the conflict between HB 60 and HB 826. But HB 90 resolved that conflict by establishing that the language used in
For this Court to strike down two separate laws duly passed by the General Assembly and signed by the Governor simply because Evans wishes his interpretation of HB 826 to carry the day would be an example of the “judicial activism of the highest order” that Evans so vociferously warns this Court about in his reply brief.
Additionally, Evans‘s contention that the School System‘s argument as to HB 90 is improperly being raised for the first time on appeal is unavailing. HB 90 was signed into law on March 13, 2015, and the order dismissing Evans‘s case was entered on February 5, 2015. Thus, HB 90 was not law at the time this case was before the trial court, and the School System could not have raised that particular argument below. In any event, its subsequent passage renders Evans‘s case moot.
3. However, even if we were to find that both the previous and current versions of
Here, there is no evidence that the School System has attempted to regulate the possession, transport, or carrying of firearms in any manner. In fact, the only rule or regulation under scrutiny as to the legality of citizens with GWLs being permitted to carry firearms in school safety zones is
4. Evans argues that the trial court erred by dismissing his claim under
Evans cites to GeorgiaCarry.Org, Inc. v. Georgia, 687 F3d 1244 (11th Cir. 2012) for the statement that
[t]his court has held that a risk of prosecution is sufficient if the plaintiff alleges (1) that an actual threat of prosecution was made, (2) that prosecution is likely, or (3) that a credible threat of prosecution exists based on the circumstances. To show that a prosecution is likely or a credible threat exists, a plaintiff must show that there is a realistic danger of sustaining direct injury as a result of the statute‘s operation or enforcement. We look to see whether the plaintiff is seriously interested in disobeying, and the defendant seriously intent on enforcing the challenged measure.
Id. at 1252 (citations and punctuation omitted). While this is an accurate quote from the Eleventh Circuit Court of Appeals, it does not support Evans‘s argument. The Eleventh Circuit made that statement while considering the question of standing to bring a facial challenge to a statute, not in determining whether a “seizure” had taken place for purposes of a Fourth Amendment analysis. We agree that Evans has standing to bring his claims, however he has not brought a facial challenge to
“A person is seized by the police and thus entitled to challenge the government‘s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied.” Brendlin v. California, 551 U. S. 249, 254 (II) (A) (127 SCt 2400, 168 LE2d 132) (2007) (citations and punctuation omitted). To determine whether a “seizure” has taken place within the meaning of the Fourth Amendment, “the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 U. S. 429, 437 (II) (111 SCt 2382, 115 LE2d 389) (1991) (citations and punctuation omitted).
Here, Evans makes no argument that his freedom of movement was ever restrained by police conduct, or that he did not have the freedom to go about his business. Instead, Evans argues that it was the threat of prosecution by a school official that amounted to a seizure and implicated his Fourth Amendment rights. He cites to Steffel v. Thompson, 415 U. S. 452 (94 SCt 1209, 39 LE2d 505) (1974) for the proposition that threats of arrest or prosecution can give rise to valid claims under
In Steffel, the petitioner was actually threatened with arrest and prosecution by
5. In light of our finding that the trial court did not err in dismissing Evans‘s complaint, we need not address his remaining enumerations of error.
Judgment affirmed. Ellington, P. J., and Branch, J., concur.
DECIDED JULY 1, 2016.
John R. Monroe, for appellant.
Thompson, Sweeny, Kinsinger & Pereira, Stephen D. Pereira, W. Creighton Lancaster, for appellee.