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By: Coleen Hosack
A Probate Court Judge in the State of Georgia must issue a Weapons Carry License to a convicted felon even if no pardon is produced, if the applicant can produce an Order of Restoration issued by the Georgia Board of Pardons and Paroles that removes disabilities imposed by State law and restores civil rights generally. This is notwithstanding the language contained in O.C.G.A. § 16-11-129(b)(2)(b) that provides no weapons carry license shall be issued to a convicted felon who has not been pardoned for such felony. On March 25, 2013, the Georgia Supreme Court affirmed a trial court’s order granting a writ of mandamus to Mr. Manual Perry, requiring Judge Pam Ferguson of the Clayton County Probate Court to issue a weapons carry license to him, despite that he was a convicted felon and had never been pardoned for the felony. (Georgia Supreme Court Opinion: Perry v. Ferguson)
The Georgia Supreme Court explains that the “statutory routes to relief” for a convicted felon to regain the right to possess firearms and obtain a license under Georgia law are not exclusively in Title 16, but are also contained in the constitutional grant of power to the Georgia Board of Pardons and Paroles to remove disabilities imposed by law. (Ga. Const. of 1976, Art. IV, Sec. II, Par. I.) The Board’s authority to remove disabilities imposed by State law cannot be restricted by statute because the Constitution expressly precludes the General Assembly from enacting laws “inconsistent with this Paragraph.” This explains why the Probate Court Judge can and should ignore the requirement for a pardon when an Order of Restoration is produced as part of the application.
Further, the Order of Restoration that will work to make the applicant eligible does not have to contain any qualifying language that expressly restores the applicant’s right to possess, transport or receive a firearm. Mr. Perry’s Order of Restoration was silent on this and yet, it still worked to implicitly restore the civil right to possess a firearm under Georgia law.
It also does not matter that the felony was for a violation of federal, as opposed to State law. In Mr. Perry’s case, he was convicted of violating federal moon shining laws. The disability created by O.C.G.A. § 16-11-129 is imposed vis-a-vis the conviction of any felony, which can then be removed by the Georgia Board of Pardons and Paroles through an Order of Restoration.
Probate Court Judges should be cognizant of subparagraph (j) of O.C.G.A. § 16-11-129 that will automatically entitle the applicant to recover reasonable attorney’s fees if the Judge makes the wrong decision and the applicant prevails in Court on a mandamus petition. The Supreme Court bench, at oral argument in the Perry v. Ferguson case, suggested that the attorney’s fees provision should incentivize the Probate Court Judge to decide in favor of the applicant on those “questionable cases” that come across a Probate Court’s purview. This seems to be inconsistent with the consensus that the weapons carry license application review is an objective, non-discretionary one. However, the practical reality is that the Perry v. Ferguson case is the missing link to let all Probate Court Judges know that even though the statute says a pardon is required to be eligible for a license, an Order of Restoration granted by the Georgia Board of Pardons and Paroles will also suffice in cases where the applicant is a convicted felon.