Legal clash: Can the Atlanta Botanical Garden prohibit guns?

Appellate case boils down to private vs. public property
JOHN SPINK / AJC 2016 file photo

JOHN SPINK / AJC 2016 file photo

The Georgia Court of Appeals is being asked to decide whether the Atlanta Botanical Garden can prohibit visitors from bringing guns.

Specifically, the appeals court was asked Wednesday to decide in the next few months whether the Botanical Garden is private or public property, as that has direct bearing on the right of a location to allow or deny weapons.

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While the Botanical Garden is run by a private entity, it sits on land at the edge of Piedmont Park that is leased from the city of Atlanta. Guns should be allowed on land that is a public space, said John Monroe, attorney for the gun-rights organization

“It is not true an entire parcel of land becomes private when it is leased,” Monroe said, adding that Georgia law prohibits local governments from restricting firearms.

“The city of Atlanta has no power to ban weapons,” Monroe said.

Attorney Mike Brown, who represents the Botanical Garden, argued the opposite. He said the 50-year lease with the city made the land private property, at least for the duration of the lease.

“The garden holds it as private property,” Brown said.

“If they don’t have the right to exclude guns, it ripples through other decisions they make,” such as how much security to have at the Botanical Garden and whether alcohol could be served, Brown added.

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The Atlanta Chamber of Commerce filed a brief supporting the Botanical Garden’s position, writing that it had an interest in the case because its role is to promote Atlanta as a “prosperous and vibrant region” to “advance economic growth” in the area.

“If this court … rules that private lessees are no longer allowed to control who may enter their property, businesses in the Metropolitan Atlanta region — along with those in the rest of the state — will be severely disadvantaged,” the chamber wrote in its brief.

Much of the argument centered on legislation passed in 2014 that created what came to be known as the “guns everywhere law.”

Specifically, Monroe argued, the 2014 Legislature created a loophole when it changed the wording of the law. Initially it said "private property owners and persons in control of property" could prohibit firearms. Then the wording in the law was changed to allow "property owners and persons in control of private property" to restrict firearms.

“The meaning of the inserted word ‘private’ is at the heart of this case,” Monroe said.

Brown said, however, that the Georgia Supreme Court had ruled more than 50 years ago on the issue of private vs. public property in a case that pertained to taxes.

Brown said the state’s highest court found that “private property becomes public property when it passes into public hands, and public property becomes private property when it passes into private hands.”

Gun in a custom holster at the 6th Annual convention in Atlanta in 2014. (Phil Skinner / For the AJC)

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The Botanical Garden issue made its way before the appellate court's three-judge panel after Fulton County Superior Court Chief Judge Gail Tusan in September 2016 dismissed a lawsuit brought by a Gwinnett County man against the garden because he was told he could not visit if he was armed. The appeal challenges that dismissal.

Tusan ruled that while the Botanical Garden sits on land owned by the city, it remains "private property with the right to restrict anyone with a … gun on its property."

She also said the “peace and serenity” of the garden may not be disturbed by people packing pistols.

Phillip Evans, who filed the lawsuit, was relying on the 2014 change in Georgia law that allows guns in any public space that is not specifically prohibited. He called the Botanical Garden to ask about the policy regarding guns and followed up with two emails to a member of the garden’s management team to confirm their conversation before he and his family drove to Midtown from Gwinnett County.

“The garden’s policy is no weapons except as permitted by law,” Jason Diem responded, according to the lawsuit.

On Oct. 5, 2014, Evans openly carried a gun in a holster as he, his wife and their two children visited the Botanical Garden. No one said anything about the gun, according to his lawsuit.

Evans said he was challenged, however, when he and his family returned to the garden a week later.

Botanical Garden officials called the police because he was wearing a holster with a handgun. Officers told Evans he could not have a gun while at the Botanical Garden and he could be arrested if he insisted on being armed.