WEAPONS CARRY LICENSE
QUICK REFERENCEGUIDE
PROBATE COURT CLERK’S TRAINING
Effective July 1, 2015
Prepared by Susan P. Tate, Judge
Probate Court of Athens-Clarke County
GETTING STARTED
GCIC – Georgia Crime Information Center – 404-244-2770 (Customer Support)
Part of GBI – Georgia Bureau of Investigation
TAC – Terminal Agency Coordinator Training – 2 ½ days every 5 years for TAC operators
Security & Integrity Training – 2 hours (on-line) every 2 yearsfor all who access/read hx
Other Classes – e.g. “How to Read Rap Sheets”
FEES– O.C.G.A. §16-11-129 (a), (c) and GBI/FBI Fee Change Effective February 1, 2015
New:
- GBI/FBI - $42.50
- Probate Court - 30.00
Total $72.50
+ GAPS, if appl. $8.50
+S.O. Fee, if appl. $5.00*
[Retired Law Enforcement Officers (LEO) Exemptfrom all fees except GAPS feeand/or $7.00 cost of license if LEO 10 of last 12 years]
Renewal:Replacement:
-Probate Court - $30.00 - Probate Court - $6.00
Total $30.00*
+ GAPS, if appl. $8.50
+S.O. Fee, if appl. $5.00*
* Sheriff’s Offices (S.O.’s) charge varying amounts for new and renewal applications.
[The law enforcement agency “shall be entitled to a fee of $5.00 for fingerprinting and processing of an application,” i.e. running a criminal history. O.C.G.A. §16-11-129 (c)]
TIME DEADLINES
O.C.G.A. § 16-11-129 (d)(1), (d)(2) &(d)(4): We have 5 days from receipt of the application to direct law enforcement to conduct the appropriate background checks. Law enforcement has 30 days to report back to Probate Court.
O.C.G.A. § 16-11-129 (d)(4): We have 10 days from receipt of the criminal history to issue the license unless facts establishing ineligibility have been reported or unless the judge determines such applicant has not met all the qualifications, is not of good moral character, or has failed to comply with any of the requirements contained in this Code section. The report from law enforcement with the history must be date stamped with the date it is received.
AGE LIMITATION
O.C.G.A. § 16-11-129 (b)(2) now includes an exception to the requirement that an applicant must be 21 years of age. If the applicant is at least 18, has completed basic training in the armed forces of the United States and provides proof that he or she is actively serving or has been honorably discharged they may be issued a license if no other prohibitors apply. A new definition has been added to this code section, to wit: (A) ‘Armed forces’ means active dutyora reserve component of the United States Army, United States Navy, United States Marine Corps, United States Coast Guard, United States Air Force, United States National Guard, Georgia Army National Guard or Georgia Air National Guard.[Emphasis supplied.]
FINGERPRINTING
O.C.G.A. § 16-11-129 (c) provides that “Fingerprinting shall not be required for applicants seeking temporary renewal licenses or renewal licenses. HB 492 deleted the problematiclanguage leftover from the previous statute and clarifies the fact that fingerprinting is NOT required on renewals.
O.C.G.A. § 16-11-129 (c) & (d)(1) mandatefingerprint-based GCIC and FBI checkson new applications only; (d)(2) mandates the NICS check on both new applications and renewals; and (d)(3) requires the ICE check for non-U.S. citizens through use of an IAQ.
Be sure to keep documentation of the NICS Transaction Number (NTN), i.e. maintain in the file at least that one page of the criminal history which contains the NTN to be able to show that a NICS check was done. Random files are pulled when the FBI does an audit of your licensing process.
RENEWAL LICENSES
- An application shall be considered to be for a renewal license if the applicant has a weapons carry license or renewal license with 90 or fewer days remaining before the expiration of such weapons carry license or renewal license or 30 or fewer days since the expiration of such weapons carry license or renewal license regardless of the county of issuance of the applicant’s expired or expiring weapons carry license or renewal license.
- To reiterate: applications made by a license holder whose current or previous license was issued by another countywill be considered a renewal application. [Emphasis supplied.]
- The section on temporary renewal licenses remains unchanged. Pursuant to O.C.G.A. § 16-11-129 (i), the applicant is entitled to apply for a temporary renewal license if less than 90 days remain before expiration of the license or within 30 days after it expired. Upon payment of the $1.00 fee and application properly made, the judge shall issue a temporary renewal license to the applicant at the time of application unless the judge knows or is made aware of any fact which would make the applicant ineligible for a five-year renewal license.
- A temporary renewal license is a paper license which expires 90 days from the date of issue.
BACKGROUND CHECKS
Fingerprint-based checks will have the subject’s SID (State Identification) and FBI numbers. A fingerprint based checksearches the national criminal history database of arrests and convictions. This includes criminal histories from Georgia (GCIC), other states (III) and the federal database (NCIC). Because Georgia now is an NFF (National Fingerprint File) state, we will receive the Georgia record and the III records if one or more stateshave information on the person or if there are federal arrests, warrants, etc. If there is nofederal or other stateinformation on the person, we will only receive the Georgia record and an indicator that the III has been checked. The advantage of this check is that we can be certain the arrests and convictions apply to the person who provided the fingerprints.
NICS checksare name and identifier based checks. NICS checks searches NCIC and the III for arrests and convictions; in addition, it searches foractive warrants, wanted persons and protective orders, and finally, the NICS Index. Persons in the NICS Index are ALL prohibited by a federal disqualifier; the index includes reported persons not only persons who are prohibited for criminal offenses, butalso some who are prohibited for non-criminal reasons, such asadjudicatedto be mentally ill or suffering from addictive disease and ordered to receive treatment or otherwise being adjudicated ‘mentally defective.’ There are, however, significant gaps in state reporting of people who are prohibited by a federal disqualifier who have not been reported to NICS. The gaps are most prominent in this area of people declared to be mentallyincapacitatedin guardianship, conservatorshipor administrative proceedings and persons ordered to receive involuntary treatment for mental illness or addictive disease in civil or criminal court proceedings.
A NICS check must be run separately on every applicant by the Sheriff’s Office (S.O.) or other terminal operator, for both new and renewal licenses. This is done by running an IQ (Identification Query) and an FQ (Full Record Query) using the Probate Court ORI # (beginning GA029 . . .) and purpose code “F” – VERY IMPORTANT! If “F” is not used, the NICS check is not done. [Always verify that the NICS check has been done by finding the NTN (NICS Transaction Number) on the history. ]
An IAQ (Immigrant Alien Query) must be done locally by the TAC operator serving your court if the applicant is not a U.S. citizen. See the following paragraph.
For every applicant who is not a U.S. citizen, copy the ICE or INS card, a picture I.D. and proof of residency for 90 daysandrequest anIAQ check of the ICE database. Write “IAQ requested” on the top corner of the application, then the Alien Registration Number (AR# or ARN) if the person is an immigrant alien, or the I-94 number if the person is a non-immigrant alien. [If not an immigrant alien, they must show proof that they fall within an exception (usually a hunting license)to be eligible. Copy the proof, too.]
REVOCATIONS
Revocations still render a person ineligible for 3 years from release from custody or supervision. O.C.G.A. § 16-11-129 (e).
HB 492 amends O.C.G.A. § 16-11-129 (e) to provide a new requirement to report revocations to GCIC, immediately but no later than10 days after such revocation.
CANCELLATIONS
We are no longer required to report cancellations when we issue a replacement license.
SUPERIOR AND STATE COURT REPORTING
HB 492 further amends O.C.G.A. § 16-11-129 (e) to provide that “If a person is convicted of any crime or involved in any matter which would make the maintenance of a weapons carry license by such person unlawful . . . the judge of the superior court or state court hearing such case or presiding over such matter shall inquire whether such person is the holder of a weapons carry license . . . [and if so] . . . shall inquire of such person the county of the probate court which issued such person . . . [a new or renewal license]. The judge of the superior court or state court shall notify the judge of the probate court of such county of the matter which makes the maintenance of a weapons carry license by such person to be unlawful pursuant to subsection (b) of this Code section. . . .” [Emphasis supplied.]
VERIFICATION OF LICENSE
Subsection (l), regarding Verification of License has been amended to authorize the judge of the probate court of his or her designee not only to verify the legitimacy and validity of a weapons carry license of a license holder pursuant to a subpoena or court order, for public safety purposes, to law enforcement agencies pursuant to paragraph (40) of subsections (a) of code Section 50-18-72, and for licensing to a judge of a probate court or his or her designee pursuant to paragraph (40) of subsection (a) of code Section 50-18-72; provided, however, that the judge of a probate court or his or her designee shall not be authorized to provide any further information regarding license holders.”
FEDERAL & STATE PROHIBITORS
See Attached.
PROBLEM AREAS
Nolo Contendere Pleas – A nolo plea in Georgia doesnot count as a conviction, not any longer, not even for weapons carry license purposes.
Discharge without adjudication from guilt upon successful completion of First Offender probation is not a conviction – not even for drug offenses.
Conviction is an adjudication of guilt. See O.C.G.A. § 16-11-129 (b)(1)(A).
Pardons– If the pardon expressly authorizes the person to possess a firearm and there are no other state or federal prohibitors, you may issue the license, even if there were drug charges - provided they pre-date the pardon. The statute is ambiguous, but we have a consensus.
5 Year Waiting Period
- Carrying a weapon without a license in violation of O.C.G.A. § 16-11-126.
- Carrying a weapon or long gun in an unauthorized location ; O.C.G.A. § 16-11-127.
- Possession of marijuana (the only misdemeanor drug charge) AND the person must be free of a 2nd misdemeanor drug conviction within the last 5 years, free of a conviction of manufacturing or distribution of a controlled substance, free of being federally prohibited to possess or ship a firearm and not have had a license revoked within the last 3 years.
All of the foregoing waiting periods commence from the time the applicant was released from jail, probation or parole, whichever was last, and apply to the 5 year period immediately preceding the application. In other words, if the person went through a clean 5 year period long ago after a misdemeanor drug conviction or first offender treatment on a drug charge, but has had a disqualifying arrest within the 5 years preceding the application, that person must wait until 5 years after being free of all restraint or supervision on the last arrest. [Pointing a gun or pistol at another in violation of O.C.G.A. § 16-11-102 no longer triggers a waiting period. Successful completion of First Offender probation for adrug offense if the applicant was discharged without adjudication of guilt no longer triggers a waiting period.]
3 Year Waiting Period – Any person who has had his or her weapons carry license revoked in the last 3 years. Period runs from the date of revocation to the date of application.
Disqualifying Military Prohibitors
1. Dishonorable Discharge;
2. General Court Martial (GCM), (it is only for serious offenses - equivalent to a felony); and
3. Any type of court martial if drug-related.
A Special Court Martial may or may not disqualify. Contact Tina Collins at NICS.
Unlawful User Of or Addicted to a Controlled Substance- This is the one for which all you need is an “inference of use” (or of addiction) in order to deny. It could be inferred from multiple arrests within 5 years or a conviction in the past year. Drug offenses are obvious, butdon’t forget that DUI’s and other recent offenses might indicate someone who is federally prohibited as an “unlawful user of” or someone who is “addicted to” any controlled substance. (“Controlled substance” does notinclude alcohol.) [A Dismissal may NOT be used as an inference of use, whether for multiple arrests or a recent conviction.]
If a conviction for any offense is recent, i.e. the applicant has still been on probation within the last year, check with the probation officer to see whether the person has tested positive for drugs on any drug screens. Remember that this is a temporary, rolling 1 year prohibitor. For example, the 1 year may start from the date of arrest (if subject tested positive), re-start upon conviction, and if the person tests positive in the 12th month of probation, then the 1 year starts over again.
If the applicant has been arrested for drug paraphernalia but not charged with possession, check out the police report by the arresting officer to see whether there was residue that tested positive for a drug. Testing positive on a field test or lab test or even an admission of use in the last year all disqualify. Drug paraphernalia is not disqualifying if there was no residue.
As to DUI’s, check to see whether any subsection of O.C.G.A. § 40-6-391 other than (or in addition to) subsection “(a)” is the one for which the applicant was convicted and sentenced. Subsection (a) references a DUI for alcohol only; other subsections reference drugs or a combination of drugs and alcohol.
Inpatient Hospitalization – Georgia law prohibits any person from being issued a license if the applicant has been hospitalized as an inpatient within the last 5 years, whether on a voluntary or involuntary basis, but the probate judge has the discretion to request the applicant to sign a waiver authorizing release of the person’s mental health records to the court and the judge can then ask the superintendent of the facility to make a recommendation as to whether or not the person is a threat to safety. This procedure could also be used to determine whether the patient was voluntary or involuntary. See O.C.G.A. § 16-11-129(b)(1)(J). Georgia law, at O.C.G.A. § 35-3-34 (e)(2), requires GCIC to purge a person’s mental health records from GCIC’s records after 5 years; however, the names of such persons should have been entered into the NICS Index.
Adjudicated Mental Defective or Committed to a Mental Institution - Federal law permanently prohibits anyone who has been adjudicated to be “mentally defective” whether in a guardianship or conservatorship, proceeding, before the V.A. or Workers Comp or other board, or in a criminal context such as incompetent to stand trial, guilty but mentally ill or not guilty by reason of insanity. It also prohibits anyone committed, or ordered, to inpatient or outpatient treatment if that order contained, or was coupled with, an adjudication that the person suffers from mentally illness or addictive disease. GCIC is authorized to report to NICS those persons who are ineligible under federal criteria. See O.C.G.A. § 35-3-34(e)(1).
Protective Orders (a/k/a Protection Orders)– Active orders should show up in the NICS check. You can also obtain a User ID and Password from GCIC to access the Georgia Protective Order Registry directly. This would allow you to view the scanned image of the order and to see orders which are inactive; your password must be changed every 90 days.
Computerized Criminal History System (CCH) – We do NOT recommend getting a User ID & Password to access criminal history directly on CCH. Using CCH will NOT cross- check several databases that purpose code “F” checks search, such as wanted persons, mental health, protective orders, etc.
PETITIONS FOR RELIEF FROM CERTAIN LICENSING EXCEPTIONS
O.C.G.A. § 16-11-129 (b.1) is a newly enacted code section which provides a process for a person who had been denied a license due to one of the mental health prohibitors under state law to have the mental health disability removed. The statute is silent as to whether this process may be used if the basis for the denial was a mental health prohibitor under federal law.
This code section requires that notice to certain persons must be given, that a hearing must be held within 30 days of the filing of the petition, that certain specified types of evidence must be heard and that a decision must be rendered by the court within 30 days of the hearing. The probate judge should read this section if a petition for relief is filed in your court.
See also the HB 60 Weapons Carry License Law document dated June 11, 2014 which was distributed to judges via the list serve in 2014.
MANDATORY NOTICE TO DENIED APPLICANTS
In 2014, HB 60 added a new code section, O.C.G.A. § 16-11-129 (j),titled“Applicant may seek relief,” which provides as follows:
When an eligible applicant fails to receive a license, temporary renewal license, or renewal
license within the time period required by this Code section and the application or request
has been properly filed, the applicant may bring an action in mandamus or other legal
proceeding in order to obtain a license, temporary renewal license or renewal license. When
an applicant is otherwise denied a license, and contends that he or she is qualified to be issued
a license, temporary renewal license, or renewal license, the applicant may bring an action in
mandamus or other legal proceeding in order to obtain such license. Additionally, the
applicant may request a hearing before the judge of the probate court relative to the
applicant’s fitness to be issued such license. Upon the issuance of a denial, the judge
of the probate court shall inform the applicant of his or her rights pursuant to this
subsection. If such applicant is the prevailing party, he or she shall be entitled to recover
his or her costs in such action, including reasonable attorney’s fees.
MANDATORY REPORTING
Involuntary Hospitalization – Inpatient Treatment orders are required to be reported to GCIC. See O.C.G.A. § 35-3-34. (Form in Separate Attachment.)
Revocations - HB 492 amends O.C.G.A. § 16-11-129 (e) to provide a new requirement to report revocations to GCIC, immediately but no later than10 days after such revocation. . (Form under Development.)