Shooting in the Park: Distinguishing Public from Private Property Under Georgia’s Firearms Carrying Laws

Georgia State University College of Law Georgia State University College of Law

Reading Room Reading Room

Law Review Blog Posts Publications

Fall 9-26-2023

Shooting in the Park: Distinguishing Public from Private Property Shooting in the Park: Distinguishing Public from Private Property

Under Georgia’s Firearms Carrying Laws Under Georgia’s Firearms Carrying Laws

Mackenzie Miller

Follow this and additional works at: https://readingroom.law.gsu.edu/gsulr_blogposts

Part of the Property Law and Real Estate Commons, Second Amendment Commons, and the State

and Local Government Law Commons

SHOOTING IN THE PARK: DISTINGUISHING

PUBLIC FROM PRIVATE PROPERTY UNDER

GEORGIA’S FIREARMS CARRYING LAWS

†

Mackenzie Miller

INTRODUCTION

Gun laws are important to most Americans. Whether staunchly

defending the right to possess and carry firearms or passionately

advocating for gun control measures, almost everyone has an opinion.

Because the Second Amendment to the United States Constitution

guarantees the right to bear arms, the possession of firearms is legal in

all fifty states.

Gun control laws passed in each state place various

restrictions on possession, limiting who can possess firearms, which

† Originally published on the Georgia State University Law Review Blog (Sept. 26, 2023).

* Articles Editor, Georgia State University Law Review; Georgia State University College of Law

Class of 2024. Member, Georgia Association for Women Lawyers; Member, State Bar of Georgia.

** Author’s Note: This article was written following the cancellation of Music Midtown in 2022. In

September 2023, Music Midtown returned to Atlanta. The festival’s safety policy banned weapons on the

concert premises at Piedmont Park. Although the law in Georgia continues to expressly allow weapons

on public property, it appears that no gun groups protested Music Midtown’s no-weapons policy. Doug

Richards, ‘Puzzle’ of Music Midtown Return, Unchanged Georgia Gun Law, 11ALIVE (May 16, 2023,

6:16 PM), https://www.11alive.com/article/entertainment/music-midtown-return-unchanged-georgia-

gun-law/85-0abeeef6-eef3-4854-a901-649e93e1b73d [https://perma.cc/J5KZ-4XTC].

1. See Alison Durkee, Support for Gun Control Laws Hits Record High, Poll Finds, FORBES (June

15, 2022, 9:51 AM), https://www.forbes.com/sites/alisondurkee/2022/06/15/support-for-gun-control-

laws-hits-record-high-poll-finds/?sh=d0c0e4462f26 [https://perma.cc/4D6A-2TKF] (citing the growing

percentage of voters who would prefer to see stricter gun control laws enacted); see also Abby Vesoulis,

Gun Rights Groups Mobilizing to Counter Gun Control Bills, Either in the Senate or in the Courts, TIME

(June 3, 2022, 5:51 PM), https://time.com/6184098/gun-rights-groups-congress-courts/

[https://perma.cc/V6NR-PC5K] (highlighting the amount of pro-gun organizations working to prevent the

passage of gun control laws).

2. U.S. CONST. amend. II (“A well regulated Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not be infringed.”).

2 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

firearms people can possess, and where firearms can be carried.

Because these restrictions interact with many other areas of law,

interpreting state gun laws can leave questions for anyone looking to

understand their legal ability to control firearms in the spaces they

occupy.

Since 2014, developments in Georgia gun law have created a

landscape of confusion.

A 2014 amendment to section 6-11-127 of

the Georgia Code expanded the right to carry guns onto privately

leased property, but the effect of the updated statute was not entirely

clear until litigation on the matter was finalized in January of 2022.

Additionally, the passage of the Constitutional Carry Act (CCA) in

2021 provided even broader gun rights to Georgia citizens by

eliminating the license requirement for anyone lawfully permitted to

carry a firearm.

As Georgia is clearly trending towards an expansion of gun rights,

these policies’ economic and social effects create several questions.

For one, ensuring large-scale events held at venues where firearms are

permitted can be costly, and the pressure to provide secure spaces is

3. See Joseph Blocher & Darrell A. H. Miller, What Is Gun Control? Direct Burdens, Incidental

Burdens, and the Boundaries of the Second Amendment, 83 U. CHI. L. REV. 295, 297 (2016).

4. See generally Linda S. Finley, Real Property, 72 MERCER L. REV. 255, 275–78 (2020) (analyzing

“developments in Georgia real property law” and touching on the interaction between Georgia property

law and firearms law).

5. Jaclyn Diaz & Emma Bowman, Music Midtown Pulls the Plug over Georgia’s Gun Laws,

Highlighting a Legal Gray Area, NPR (Aug. 1, 2022, 6:39 PM),

https://www.npr.org/2022/08/01/1114951094/music-midtown-atlanta-canceled-over-guns

[https://perma.cc/72CK-QNNJ] (“‘And now we have an unclear case: What happens if you have a

privately organized concert but in a very public venue like a city park? Is that a private event? Or is that

a public venue? And the answer to that is somewhat unclear,’ Lytton told NPR.”).

6. GA. CODE ANN. § 16-11-127 (West 2022); see GeorgiaCarry.Org, Inc. v. Atlanta Botanical

Garden, Inc., 834 S.E.2d 27, 31–34 (Ga. 2019); see also Diaz & Bowman, supra note 5 (“[A] recent

Georgia appeals court ruling made it harder for private groups to restrict gun owners from bringing their

weapons to ‘short-term events’ on public land.”).

7. Katie Adams, House Bill 2: Georgia Constitutional Carry Act of 2021; Enact, 15 J. MARSHALL

L.J. 1, 2 (2021).

8. See Diaz & Bowman, supra note 5 (“Out of fear of litigation and because of uncertainty in the

law, private organizations that run events in public venues have opted to lift any gun bans.”).

2024] SHOOTING IN THE PARK 3

undoubtedly high in the wake of recent mass shooting events.

In light

of these concerns and the developments in Georgia gun law, Georgia

venues and would-be festival holders have begun to raise questions

about the kind of property interest they must possess to restrict guns

from their event premises.

This blog post will discuss the impact property law classifications

have on constitutional carry in the state of Georgia, with a particular

focus on the potential for a legal loophole to the gun-friendly

provisions of section 6-11-127 of the Georgia Code.

Part I discusses

the development and expansion of Georgia gun law in recent years and

examines the definitions of public and private property as they relate

to firearm law. Part II analyzes the options available for restricting

firearm carry on public property under current Georgia law. Part III

offers a proposal for conceptualizing leased public property as private

to expand the right of exclusion as it relates to gun law.

I. BACKGROUND

The CCA amended the Georgia Code to reflect that lawful weapons

carriers need not apply for a license to possess and carry firearms

legally in statutorily permitted locations.

The CCA defines a lawful

weapons carrier as a person “not prohibited by law from possessing a

weapon or long gun, any person who is licensed pursuant to Code

Section 16-11-129, or any person licensed to carry a weapon in any

other state whose laws recognize and give effect to a license issued

pursuant to this part.”

In addition, further restrictions remain in place

9. See Domenico Montanaro, Poll: Support for Controlling Gun Violence Hits Its Highest Point in a

Decade, NPR (June 9, 2022, 5:00 AM), https://www.npr.org/2022/06/09/1103661684/gun-control-npr-

pbs-marist-survey-uvalde-buffalo-biden [https://perma.cc/S6FZ-VNBN]; see also Jewel Wicker, Where

Do Georgia Music Festivals Go From Here?, VULTURE (Aug. 11, 2022),

https://www.vulture.com/2022/08/midtown-music-fest-georgia-gun-law-atlanta.html

[https://perma.cc/84RT-HXZW] (“Festivals that are hosted on public property now face a series of

potential risks. If promoters ban guns, they could face a lawsuit. If they don’t ban guns, they risk losing

artists and staff or having a tragic event occur at the event.”).

10. Wicker, supra note 9.

11. § 16-11-127 (allowing for the constitutional carry of firearms on public property).

12. H.B. 2, 156th Gen. Assemb., Reg. Sess. (Ga. 2021); see also Adams, supra note 7, at 24.

13. H.B. 2.

4 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

for people who are not generally allowed to carry firearms under

Georgia law.

Although a license is no longer required by law for the possession

of a firearm by lawful weapons carriers, the Georgia Code continues

to set limitations on where lawful carry is permitted.

Section

16-11-127 outlines locations where guns are and are not authorized to

be carried.

Even lawful weapons carriers are expressly prohibited

from carrying firearms in areas such as courthouses, jails or prisons,

places of worship (absent permission), nuclear power facilities, state

mental health facilities, and active polling places.

Aside from those

explicitly prohibited areas, the Code provides that “[a]ny lawful

weapons carrier shall be authorized to carry a weapon . . . in every

location not listed in subsection (b) or prohibited by subsection (e) of

this Code section.”

However, private property owners or “persons in

legal control of private property through a lease, rental agreement,

licensing agreement, contract, or any other agreement to control access

to such private property,” have a right to exclude even lawful weapons

carriers from their private property.

In turn, Georgia courts have

begun to answer the questions of when and to what degree a private

lessee can have legal control over decidedly public property.

14. See, e.g., GA. CODE ANN. § 16-11-131 (West 2022) (outlining the various restrictions placed on

gun ownership for convicted felons as well as the exceptions where pardon or other relief has been

granted).

15. § 16-11-127(b)(1)-(7) (outlining the locations where even lawful weapons carriers may be

punished with a misdemeanor for carrying a gun).

16. Id.

17. Id. § 16-11-127(d) (authorizing lawful weapons carriers to carry in locations prohibited by

subsection (b) provided the carrier approaches and notifies “security or management personnel upon

arrival at a location described in subsection (b)” and follows direction regarding temporary surrendering

of weapon).

18. Id. § 16-11-127(c).

19. Id.

20. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 834 S.E.2d 27, 31 (Ga. 2019) (holding

that a private party’s lease must clearly delineate an estate in order for publicly owned property to be

considered under sufficient legal control by a private property to allow the exclusion of firearms).

2024] SHOOTING IN THE PARK 5

A. Defining Public and Private Property as It Applies to Georgia

Firearm Law

Until 2014, the right to exclude firearms from property under the

Georgia Code seemingly extended to property controlled by any lease,

license, contract, or agreement, regardless of whether the property was

legally private.

A 2014 amendment to section 16-11-127 added the

word “private” before the word “property,” impliedly limiting the right

to exclude firearms from public property.

Thus, although a private

party may control public property through any of the measures listed

in section 16-11-127, control by a private party does not make the

property itself private.

Further, private control may not necessarily

entail a right to exclude firearms from the property.

Although the phrase “private property” is used three times in section

16-11-127(c), the Georgia Legislature did not explicitly define the

phrase anywhere in the Code.

And, just as private property is not

defined, public property is also left without a definition in section

16-11-127.

In statutes where definitions are not provided,

dictionaries are a common tool for statutory interpretation.

Black’s

Law Dictionary defines public property as “[s]tate or community-

owned property not restricted to any one individual’s use or

possession.”

Public property seems to be any government-owned

property.

Black’s Law Dictionary defines private property as

21. See id.

22. Id. at 33 (“The 2014 amendment to the Code section specified that the right to exclude the carrying

of firearms applies only to ‘private property.’ To suggest otherwise is to argue that the additional language

made no change to the statute’s application.”).

23. Id. at 33–34 (discussing that a lease between a public landlord and a private tenant does not always

render the leased property “private”).

24. Id.

25. GA. CODE ANN. § 16-11-127 (West 2022); GeorgiaCarry.Org, Inc., 834 S.E.2d at 31 (“Among

other changes to the state’s weapons possession laws that took effect the same day, the proviso . . . was

amended by the General Assembly to insert the word ‘private’ in three instances where it had not

previously been included . . . .”).

26. § 16-11-127. The Code neither uses nor defines “public property.” Id.

27. See, e.g., In re Walter Energy, Inc., 911 F.3d 1121, 1143 (11th Cir. 2018) (citing CBS Inc. v.

PrimeTime 24 Joint Venture, 245 F.3d 1217, 1223 (11th Cir. 2001)) (“To determine the ordinary meaning

of a term, we often look to dictionary definitions for guidance.”).

28. Property, BLACK’S LAW DICTIONARY (11th ed. 2019).

29. Id. The phrase “state or community-owned” necessarily excludes private ownership. Id.

6 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

“[p]roperty —protected from public appropriation—over which the

owner has exclusive and absolute rights.”

Private property, then,

seems simply to mean property not owned by the government.

Although a property’s status as private, rather than public, may seem

clear in some situations, the lack of a definition within the Georgia

Code leaves room for litigation in less evident situations.

One such situation concerns the leasing of public property by private

entities.

In 2019, the Supreme Court of Georgia provided guidance

for defining private property under those specific circumstances in

GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc.

answering that narrow question, the court held that a private party’s

lease of publicly owned property does not automatically convert the

publicly owned property into private property for the purposes of

section 16-11-127.

The court held that the determinative factor

would be the specific kind of property interest conferred to the lessee.

B. The Effect of Lease Interests on Property’s Status as “Public”

or “Private”

A lease for a “specified period of time” can create two distinct kinds

of property rights to be conferred upon the lessee.

The first, a

usufruct, grants a lessee a limited right to “possess and enjoy” the

property, and does not pass an estate to the lessee.

Instead, “the

30. Id.

31. Id.

32. See GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 834 S.E.2d 27, 32–36 (Ga. 2019)

(explaining the need to examine the meaning of private property under section 16-11-127 of the Georgia

Code given “the Code does not otherwise provide an applicable definition”).

33. See id. at 36 (finding that the leasing of public property by private entities only converts public

property into private property under the specific circumstances of an estate for years).

34. Id.

35. Id. at 37; see also Delta Air Lines, Inc. v. Coleman, 131 S.E.2d 768, 771 (Ga. 1963) (“[P]ublic

property becomes private property when it passes into private ownership.”) The use of the word ownership

in Coleman proved determinative when the case was examined by the Georgia Supreme Court in

GeorgiaCarry.Org. GeorgiaCarry.Org, Inc., 834 S.E.2d at 34–36.

36. GeorgiaCarry.Org, Inc., 834 S.E.2d at 36.

37. Id. at 34 (outlining the two types of property rights that can be conveyed by a lease: the usufruct

and the estate interest).

38. GA. CODE ANN. § 44-7-1(a) (West 2022); see also GeorgiaCarry.Org, Inc., 834 S.E.2d at 34 (“A

usufruct has been referred to as merely a license in real property, which is defined as authority to do a

particular act or series of acts on land of another without possessing any estate or interest therein.”).

2024] SHOOTING IN THE PARK 7

landlord continues to hold the present estate in the property.”

When

a usufruct is formed, it creates a landlord–tenant relationship between

the lessor and lessee of the property.

The second kind of property interest that can be conferred upon a

lessee is an estate.

An estate generally grants the lessee more rights

in the land than a usufruct.

The most all-encompassing estate, a fee

simple estate, provides the owner “with unconditional power of

disposition [over the property] during his life and which descends to

his heirs and legal representatives upon his death intestate.”

Many

lesser estates also grant the lessee a broad, absolute right to use the

land.

An estate for years, for example, “carries with it the right to use

the property in as absolute a manner as may be done with a greater

estate.”

Unlike in a usufruct, no landlord–tenant relationship exists

in an estate for years; as such, a relationship reflects a tenant’s mere

right of use rather than an absolute right of use.

Because of the

broader right to the property conveyed by an estate for years, Georgia

courts have held that a tenant holding such an estate should be treated

39. GeorgiaCarry.Org, Inc., 834 S.E.2d at 35.

40. § 44-7-1(a).

41. See GeorgiaCarry.Org, Inc., 834 S.E.2d at 34.

42. Compare Usufruct, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A right for a certain period to

use and enjoy the fruits of another’s property . . . .”), with Estate, BLACK’S LAW DICTIONARY (11th ed.

2019) (“The amount, degree, nature, and quality of a person’s interest in land or other property; esp. a

real-estate interest that may become possessory, the ownership being measured in terms of duration.”);

see also GA. CODE ANN. § 44-6-103 (West 2022) (“An estate for years carries with it the right to use the

property in as absolute a manner as may be done with a greater estate . . . .”).

43. GA. CODE ANN. § 44-6-20 (West 2022).

44. See GA. CODE ANN. § 44-6-40 to -106. Title 44, Chapter 6 of the Georgia Code unpacks all of the

types of estates, including fee simple estates, conditional estates, life estates, and estates for years. Id. All

of these are legal estate interests, with the fee simple estate conveying the most right of control and

ownership over the land. Id. The other listed estates convey a lesser ownership interest, but an ownership

interest, nonetheless. Id.

45. §§ 44-6-100, -103 (“An estate for years is one which is limited in its duration to a period which

is fixed or which may be made fixed and certain.”); see also GeorgiaCarry.Org, Inc., 834 S.E.2d at 36

(holding that the terms of a lease must be examined to determine if the lease conveyed was an estate for

years that would grant the leaseholder more rights over the property).

46. § 44-6-101. A mere right of use is significantly less broad than an absolute right as outlined in

section 44-6-103 of the Georgia Code. Id.

8 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

as the owner of the property for the duration of the lease.

If a private

party is regarded as the owner of property, the property itself can

rightfully be classified as private for the duration of the estate.

Thus,

in GeorgiaCarry.Org, Inc., the Georgia Supreme Court held that for

the property at issue to be categorized as private for the duration of the

lease, the lease between the parties would need to have conferred an

estate interest, such as an estate for years, rather than a usufruct.

The rebuttable presumption under Georgia law is that a lease for

more than five years reflects an intention by the parties to create an

estate for years unless the terms of the lease clearly delineate

otherwise.

When a lease of property is set for less than five years, the

interest conveyed to the tenant is restricted to a usufruct interest unless

explicitly specified by contract.

On this legal foundation, the best

course of action for a private entity looking to restrict individuals from

carrying firearms on public property they have leased is likely to

request the agent managing the public property to convey a short-term

estate interest in the private party. Because of the broad but temporary

nature of the estate conveyed by an estate for years, this kind of estate

would make the most sense under short-term leasing circumstances.

47. GeorgiaCarry.Org, Inc., 834 S.E.2d at 35 (citing Evans Theatre Corp. v. De Give Inv. Co., 52

S.E.2d 655, 658 (Ga. Ct. App. 1949)); see also James G. Wilson Mfg. Co. v. Chamberlain-Johnson-

DuBose Co., 79 S.E. 465, 465 (Ga. 1913) (establishing that liens provided against the interests of “true

owners” attach to the interest of lessee holding an estate for years, making such a lessee the functional

equivalent of a true owner).

48. Delta Air Lines, Inc. v. Coleman, 131 S.E.2d 768, 771 (Ga. 1963) (“[P]ublic property becomes

private property when it passes into private ownership.”); GeorgiaCarry.Org, Inc., 834 S.E.2d at 35

(“[T]he grant of an estate transfers ownership of the property to the estate holder during the term of the

estate . . . .”).

49. GeorgiaCarry.Org, Inc., 834 S.E.2d at 36.

50. Id. (citing E. Air Lines v. Joint City-Cnty. Bd. of Tax Assessors, 315 S.E.2d 890, 891 (Ga. 1984)).

But see City of Coll. Park v. Paradies-Atlanta, LLC, 815 S.E.2d 246, 250 (Ga. Ct. App. 2018) (finding

that two seven-year agreements between a private company and the City of Atlanta which “gave rise to a

presumption that they conveyed estates for years” were nevertheless agreements for usufructs because

provisions sufficiently restricted the private parties’ use of the property).

51. GA. CODE ANN. § 44-7-1(a) (West 2022).

2024] SHOOTING IN THE PARK 9

II. ANALYSIS

Parties looking to host short-term events on public property

typically must apply for a permit rather than engage in a short-term

lease. Due to the nature of a permit as a license to do something rather

than a usufruct or estate interest in the land, restricting firearm carry

during events held on public property is nearly impossible under

current Georgia law.

Georgia’s gun laws may well have intended to

prevent such restrictions from being put in place, even for the purposes

of short-term safety at events with massive attendance.

However, the

Georgia Legislature’s policy justifications outweigh public safety

justifications for a legal solution to the allowance of guns on public

property under section 16-11-127.

A. Legal and Policy Justifications for Preventing Firearm Carry

Restrictions on Public Property

In introducing the revisions to Georgia law under the CCA, the

Georgia Legislature wrote that “[t]he mere potential to deprive

someone of life, liberty, or property should never be considered a

crime in a free and just society.”

In the introductory notes of House

Bill 2 (which became the CCA), the Georgia Legislature reasoned that

“[e]vil resides in the heart of the individual, not in material objects;

and [s]ince objects or instrumentalities in and of themselves are not

dangerous or evil, in a free and just society, the civil government

should not ban or restrict their possession or use.”

The legislature’s

language reflects a policy that places a high value on an individual’s

52. Compare Permit, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining a permit as a license and

a “certificate evidencing permission”), with Usufruct, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A

right for a certain period to use and enjoy the fruits of another’s property without damaging or diminishing

it, but allowing for any natural deterioration in the property over time.”), and Estate, BLACK’S LAW

DICTIONARY (11th ed. 2019) (“[T]he amount, degree, nature, and quality of a person’s interest in land or

other property . . . the ownership being measured in terms of duration.”).

53. Adams, supra note 7, at 22 (“Representative Dunahoo believes that law-abiding citizens have a

God-given right to protect themselves and that law-abiding citizens should not be restricted due to other

individual’s evil acts.”)

54. H.B. 2, 156th Gen. Assemb., Reg. Sess. (Ga. 2021); see also Adams, supra note 7, at 2.

55. H.B. 2; GA. CODE ANN. § 16-11-127 (West 2022).

10 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

right to bear arms.

These justifications serve to proactively shift the

blame for the potentially deadly consequences of firearm misuse away

from firearms and lenient gun laws and onto the

“evil . . . individual.”

It stands to reason that if the legislature

intended for even lawful weapons carriers to be required to comply

with restrictions on constitutional carry during mass public gatherings,

such a provision would have been included in either section 16-11-127

or the CCA.

The Georgia Code allows the state government and most city

governments to lease out public property to private lessees.

Even so,

Georgia courts have reiterated for over a century that the purpose of

public property, especially when it has been dedicated to public use, is

to serve “to the benefit of all who are at the time, or may afterwards

become, citizens of the municipality [that dedicated the land].”

Therefore, adequately implementing Georgia’s state policy favoring

constitutional carry may require a strict application of section

16-11-127 because the CCA implies that a public benefit to all

necessarily extends to individuals lawfully carrying firearms.

The

Georgia Legislature’s belief that people have a right to carry firearms

onto publicly owned property may preempt any attempt to limit

56. See H.B. 2.

57. See id.; see also Adams, supra note 7, at 22.

58. GA. CODE ANN. § 50-16-41 (West 2022) (“[T]he commission is authorized to negotiate, prepare,

and enter into in its own name rental agreements whereby a part of the property is rented, without public

competitive bidding, to a person for a length of time not to exceed one year and for adequate monetary

consideration . . . .”); GA. CODE ANN. § 36-37-6.1 (West 2022) (“All such municipalities shall have

authority to lease out and grant easements over property used primarily for recreational purposes to others

consistent with general park and recreational purposes for a period not exceeding 50 years and for a

valuable consideration.”).

59. Dept. of Transp. v. City of Atlanta, 337 S.E.2d 327, 330 (Ga. 1985) (quoting City of Macon v.

Franklin, 12 Ga. 239, 257 (1852)). Here, the court held that private, tax-paying citizens had an interest in

public property because the property had been dedicated to public use. Id. “Where a municipality dedicates

property to a public use, it inures to the benefit of all who are at the time, or may afterwards become,

citizens of the municipality . . . .” Id.

60. § 16-11-127; H.B. 2. Eliminating the license requirement for firearm carry reflects the policy that

firearm carry is a right every individual should have unless he or she proves she should not have the right

by violating any specific law that carries with it a restriction on firearm possession for offenders. See also

Adams, supra note 7, at 24. Therefore, this right is likely intended to be available to all lawful carriers in

all public spaces. Id.

2024] SHOOTING IN THE PARK 11

firearm carry if doing so would exclude lawful weapons carriers who

are entitled to receive the benefit of public land in public use.

In Norton v. City of Gainesville, the city and city park board

attempted to lease a public park to Gainesville Lions Railway

Company, a private party who hoped to open and operate a miniature

railroad on park grounds for profit.

The Supreme Court of Georgia

enjoined the leasing, reasoning that it was invalid because the lease

would change the nature of the use of the property.

Changing the

nature of the use “constituted an unauthorized diversion” of the

property.

Unlike most Georgia cities today, the City of Gainesville

did not have authority under the Georgia Code to lease its public parks

to private individuals.

However, the fact that the public land would

be put out of public use, and thus into private use, was dispositive.

Thus, even when state or municipal governments have the legal ability

to lease public land to private parties, restricting legal firearm carry

could impermissibly change the use of the land.

If short-term lease

agreements could convey estates rather than usufructs over public land

61. Norton v. City of Gainesville, 86 S.E.2d 234, 235 (Ga. 1955) (“The plaintiffs, as taxpayers and

citizens owning property adjoining the public park, had such an interest in the maintenance of the park

for public use as to authorize them to maintain a suit to restrain the city and its Park Board from leasing a

part of the public park.”).

62. Id. at 238–39. The court found that if a private party put public land to use as a for-profit miniature

railroad station, that use would not be a “public use.” Id. Because the park was publicly owned and

“dedicated for recreational purposes,” it was a public utility, and the city had no legal authority to alter

the use of the park in favor of private profit. Id. at 237.

63. Id. at 238 (“We are of the opinion that the lease contract entered into between the parties in this

case constituted an unauthorized diversion by the City of Gainesville of property which was dedicated as

a park for the use of the general public . . . . ”).

64. Id. (“We have not found any statutory or charter power which gives the City of Gainesville any

authority to lease its public park, or a part of the same, to private individuals.”). But see GA. CODE

ANN. § 36-37-6.1 (West 2022). The Norton decision came before the 1967 Georgia law authorizing

municipalities to sell and lease public property to private parties, the current form of which is

section 36-37-6.1 in the Georgia Code. Id. Current law allows municipalities with populations greater than

300,000 in the 1960 census to sell and lease public property to private parties. Id.

65. Norton, 86 S.E.2d at 237 (“Where a municipality dedicates property to a public use, it may be put

to all customary uses within the definition of the use. Any use which is inconsistent, or which substantially

and materially interferes, with the use of the property for the particular purpose for which it was dedicated

will constitute a misuser or diversion.”); see also Dept. of Transp. v. City of Atlanta, 337 S.E.2d 327, 330

(Ga. 1985) (“Norton involved an attempted lease of parklands to a private interest. . . . The change in use

of dedicated parklands was the central factor mitigating in favor of the injunction.”).

66. City of Atlanta, 337 S.E.2d at 330 (finding that a change in public land’s use is a determining factor

when analyzing the legality of a lease of public land).

12 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

in public use, such a lease may be held to change the nature of the use

of the land and constitute an impermissible diversion.

Moreover, the general practice of issuing permits for relatively

short-term events may prevent the most common large-scale private

events from banning firearms on public land. Under the Atlanta Code

of Ordinances, for example, groups hosting outdoor festivals are

required to apply for permits through the Mayor’s Office of Special

Events.

Outdoor festivals are defined at length in the Georgia Code

and are explicitly categorized as events lasting fewer than ninety

days.

Even events lasting longer than ninety days require a permit

rather than a lease.

These permits convey a far lesser property interest

than a lease, and the City of Atlanta’s extensive permit use seems to

indicate a resistance to lease conveyances.

Although permits grant permission to occupy the public property,

further sub-permits are required for things like the sale of alcohol on

the premise.

These permits demonstrate the limited scope of the

permit holder’s control over the public property. Because these permits

are mere licenses, the property retains its legal status as “public”;

67. Norton, 86 S.E.2d at 237.

68. Office of Special Events, CITY OF ATLANTA, GA, https://www.atlantaga.gov/government/mayor-

s-office/executive-offices/office-of-special-events [https://perma.cc/M2RB-WR6H].

69. ATLANTA, GA., CODE § 142-2(m) (2006) (“Outdoor event means any gathering of people that

occurs completely or partially outdoors, that occurs on public property and/or private property, that is

not a gated park event, as defined above, and that either (1) Lasts for 90 or fewer consecutive days; or

(2) Lasts for 13 or fewer consecutive weeks, where the outdoor gathering occurs on no fewer than three

days out of each consecutive week; or (3) Is a series.”).

70. ATLANTA, GA., CODE § 142-3(d) (2006). This city code section provides that “[o]utdoor

gatherings with a duration of greater than 90 consecutive days, or outdoor gatherings with a duration

of greater than 13 consecutive weeks, where the gathering occurs on at least three days of each

consecutive week, shall not be deemed an outdoor event.” Id. Whether located on public or private

property, “[s]uch outdoor gatherings . . . require a special use permit, which is obtained from the city’s

bureau of planning.” Id. Further, if the event is taking place in a city park, two separate bureaus will

review the application. Id. “Where said gathering requiring a special use permit occurs in a city park,

the bureau of planning shall work collaboratively with the bureau of parks to determine whether a

special use permit should be issued.” Id.

71. Id. Even for long-term use of public spaces, the City of Atlanta issues only a permit rather than

conveying a lease. Id.

72. ATLANTA, GA., CODE § 142-31 (2006) (“Any applicant submitting an application for any type

of outdoor event, where the outdoor event includes the use of a temporary structure (such as a tent),

electricity, amplification, food and/or drinks, portable restrooms, alcohol, amusements, banners, or that

produces solid waste, may need to obtain a sub-permit.”).

2024] SHOOTING IN THE PARK 13

following the GeorgiaCarry.Org, Inc. holding, the state does not grant

the permit holder any estate in the property.

Further, although the

chief of staff of the office of the mayor is permitted to designate

limitations upon festival districts “if in the opinion of the chief of staff

there are special considerations warranting such limitations, such

as . . . public safety,” the Georgia Code has preempted any

limitations on lawful firearm carry.

B. Justifications for Short-Term Estates and Other Legal Loopholes

to Constitutional Carry

Although Georgia’s firearm policies seem to imply that there is no

lawful way of forbidding firearm carry on public property if the

property is not covered explicitly by any other statutory restrictions,

other property law concerns may lead to a different conclusion. Section

44-7-11 of the Georgia Code, for example, affords tenants “such

privileges as are necessary for the enjoyment of [their] use.”

For

many potential tenants, the right to exclude firearms from leased public

premises may well be a privilege necessary for their enjoyment of use.

Music festivals, for one, often feature artists that promise to attract

large crowds and profits.

High- profile musical artists often impose

riders as conditions of their performance, and such riders may include

a refusal to perform at events with firearms legally present.

Because

73. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 834 S.E.2d 27, 32–36 (Ga. 2019)

(holding that an interest in land less than an estate interest does not carry ownership, and thus a private

usufruct interest in public land does not make the land “private” for the duration of the usufruct).

74. ATLANTA, GA., CODE § 142-52 (2006) (“The chief of staff . . . may designate certain festival

districts as having special limitations . . . if in the opinion of the chief of staff there are special

considerations warranting such limitations, such as traffic, public safety . . . .”).

75. GA. CODE ANN. § 44-7-11 (West 2022) (“The tenant has no rights beyond the use of the land and

tenements rented to him and such privileges as are necessary for the enjoyment of his use.”).

76. See Donnell Suggs, Music Midtown Cancellation Means $50 Million Loss to Atlanta Economy,

ATLANTA BUSINESS CHRONICLE (Aug. 1, 2022),

https://www.bizjournals.com/atlanta/news/2022/08/01/music-midtown-concerts-events-atlanta.html

(discussing the huge financial effect of the Music Midtown festival).

77. Wicker, supra note 9. This interview with an Atlanta attorney indicates that although the practice

of imposing “no gun” clauses in riders is not yet common, it is an expected result of gun laws like

Georgia’s. Id. “[I]t’s never been an issue in the past. I wouldn’t be surprised if it started showing up for

Georgia.” Id.

14 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

hosts would lack the ability to ban firearms, they may lose out on

desired musical acts because of the firearm policy on leased lands. This

result may ultimately frustrate or completely destroy a hosts’

enjoyment of use of the leased land.

Further, even in cases where hosts are issued permits rather than

given leases, hosts’ inability to restrict firearms on premises seems to

be frustrating their enjoyment of use. In the summer of 2022, Music

Midtown, a popular music festival that has been held in Atlanta’s

Piedmont Park for nearly twenty consecutive years, cancelled its

lineup for the year.

The cancellation received abundant media

attention, and many reporters speculated that the cancellation was a

result of the holding in GeorgiaCarry.Org, Inc.

Piedmont Park is

both publicly and privately owned; the City of Atlanta shares

ownership of the park with a private non-profit organization called

Piedmont Park Conservatory.

Although technically owned and

managed in a public–private partnership, Piedmont Park is officially

listed as a public park and described as a public space.

If the widely-

held assumption that Music Midtown cancelled the festival due to its

inability to ban guns for the duration of its permit is true,

then an

inability to ban guns could mean that no tenant or licensee with an eye

toward safety precautions can lease or license public property how

they prefer. The economic effect that additional cancelled events will

78. Id. (“Early reports suggest the event . . . was scrapped because of a 2019 legal ruling that prevented

Live Nation from banning guns inside Piedmont Park, where the event is held.”).

79. See id. This article unpacks GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc. and

discusses how the GA2A (formerly GeorgiaCarry.Org) representative Phillip Evans, who led the

challenge against the Garden, also challenged Music Midtown’s right to ban guns. Id.

80. Park History, PIEDMONT PARK CONSERVANCY, https://piedmontpark.org/park-history/

[https://perma.cc/RC5V-FJRY] (“In 1989, unwilling to accept the decline of their beloved park, a small

group of concerned citizens and civic leaders joined together to form Piedmont Park Conservancy, a

private, nonprofit organization dedicated to the restoration and preservation of Piedmont Park. In 1992,

The Conservancy established a Memorandum of Understanding with the City of Atlanta, making official

the public–private partnership and mutual goals to rehabilitate and maintain Piedmont Park.”).

81. List of Parks, Alphabetical, CITY OF ATLANTA, GA,

https://www.atlantaga.gov/government/departments/parks-recreation/office-of-parks/list-of-parks-

alphabetical [https://perma.cc/LCK3-BYFV] (listing Piedmont Park as a public park); Park Use Rules

and Guidelines, CITY OF ATLANTA, GA, https://www.atlantaga.gov/government/departments/parks-

recreation/office-of-parks/park-use-rules-and-guidelines [https://perma.cc/99VZ-RDQL] (“City of

Atlanta parks are public spaces . . . .”).

82. See generally Wicker, supra note 9.

2024] SHOOTING IN THE PARK 15

have on the state remains to be seen, but the city has already lost an

estimated fifty million dollars in revenue that Music Midtown was set

to generate.

The combined monetary cost and effect on tenant’s right

to use is simply not worth the strict protection the Georgia Legislature

has afforded gun rights.

Although a special event permit is not a lease, such permits regularly

convey a right to exclude.

Ticketed and gated events held by private

entities on public property are commonplace, despite the fact that these

events necessarily treat public property like it is a private venue by

giving event holders control over whom to admit.

In the City of

Atlanta specifically, gated events may not exclude attendees on the

basis of “race, color, creed, religion, gender, domestic relationship

status, parental status, familial status, sexual orientation, national

origin, political affiliation or gender identity.”

All other bases for

exclusion, such as the absence of a ticket, are impliedly permitted.

Hosts of private events are legally allowed to exclude non-ticketed

persons from public property for the duration of the permitted

event.

Although there are impermissible bases for exclusion, status

83. See Suggs, supra note 76 (“The weekend-long music festival . . . annually generates $50

million . . . .”).

84. See Sudhin Thanawala, Cancellation of Atlanta Festival Sparks New Fight Over Guns, THE

ASSOCIATED PRESS (Aug. 11, 2022, 1:05 AM), https://apnews.com/article/2022-midterm-elections-

entertainment-music-georgia-d516d0fb695c3cb66954fef974fd42dc [https://perma.cc/NN5G-RYGY]

(unpacking the negative effect Georgia’s gun laws are having on Atlanta’s status as a cultural capital, as

well as the “blow” the cancellation was “to Georgia’s economy and local businesses”).

85. See ATLANTA, GA., CODE § 142-2(k) (2006) (“Gated park event means an outdoor gathering that

is located in a city park and that is gated, thereby closing a portion of the park to the public and

excluding members of the public, and for which a ticket and/or admission fee is required to attend the

gathering.”).

86. See id.

87. ATLANTA, GA., CODE § 142-3(e) (2006). This code section addresses gated events held at Atlanta

city parks, and expressly lists classes of people who may not be denied entry based on their status in those

classes. Id. Firearm carriers are not listed, only “race, color, creed, religion, gender, domestic

relationship status, parental status, familial status, sexual orientation, national origin, political

affiliation or gender identity” are. Id.

88. Expressio Unius Est Exclusio Alterius, BLACK’S LAW DICTIONARY (11th ed. 2019). “A canon of

construction holding that to express or include one thing implies the exclusion of the other, or of the

alternative.” Id. In expressly listing prohibited bases of exclusion, the Georgia Legislature likely intended

to exclude other bases of exclusion from the list based on the statutory interpretation device of expression

unius.

89. See ATLANTA, GA., CODE § 142-2(k) (2006).

16 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

as a lawful weapons carrier is not a specially protected class and

shares little in common with the listed protected classes—it is

difficult to argue that they should be among the classes that cannot

be used as a basis for exclusion.

Additionally, tickets essentially

serve as contracts between the event host and the attendee.

The

principle of freedom of contract may allow the private event holder

to condition attendance on accepting the temporary firearm ban on

the premises.

Private attendees would be free to either agree to that

term while present at the ticketed event, or not attend.

However,

contract provisions that are prohibited by statute are generally illegal

and therefore void.

Because section 16-11-127 lays out guidelines

for the lawful carry of weapons, contract provisions further limiting

firearm carry may be prohibited by the Code and thus impermissible

by law.

Commentators assert that GeorgiaCarry.Org, Inc. stands for the

proposition that no short-term lease can convey to a private party an

estate in public property that would allow the lessee to ban guns on the

90. See ATLANTA, GA., CODE § 142-3(e). Lawful weapons carrying requires the physical carrying of

a weapon and is not a “status” in the way that race, color, creed, religion, gender, domestic relationship

status, parental status, familial status, sexual orientation, national origin, political affiliation or gender

identity are. Id. See also GA. COMP. R. & REGS. 186-2-.02 (1992). The Georgia Fair Housing Law

prohibits discrimination because of race, color, religion, sex, handicap, familial status, or national origin,

which overlaps heavily with the statuses listed in the Atlanta Code. Id.

91. Ga. Lottery Corp. v. Patel, 826 S.E.2d 385, 388–90 (Ga. Ct. App. 2019) (holding that a lottery

ticket did constitute a contract where the elements of offer, acceptance, mutual assent, and consideration

via price paid were all present). Although Georgia courts have not yet extended this holding to event

tickets or explored the specific ramifications of doing so, the holding implies that when offer, acceptance,

mutual assent, and consideration are present, the purchasing of a ticket constitutes the formation of a

contract. See id.

92. Parrish v. St. Joseph’s/Candler Health Sys., Inc., 874 S.E.2d 413, 419 (Ga. Ct. App. 2022) (citing

State Farm Fire & Cas. Ins. Co. v. Terry, 495 S.E.2d 66, 69 (Ga. Ct. App. 1997)) (“Competent parties are

free to choose, insert, and agree to whatever provisions they desire in a contract unless prohibited by

statute or public policy.”); GA. CODE ANN. § 16-11-127 (West 2022). In the case of contracting against

firearm carry, such a provision may be found to be directly prohibited by section16-11-127 of the Georgia

Code, which authorizes firearm carry on public property. Id.

93. See Parrish, 874 S.E.2d at 419.

94. GA. CODE ANN. § 13-8-1 (West 2022) (“A contract to do an immoral or illegal thing is void. If the

contract is severable, however, the part of the contract which is legal will not be invalidated by the part of

the contract which is illegal.”); Parrish, 874 S.E.2d at 419.

95. See sources cited supra note 94.

2024] SHOOTING IN THE PARK 17

property.

Indeed, the Georgia Supreme Court specifically held that

Georgia courts must look to the terms of each lease in determining

“whether the lease created an estate in the private lessee such that the

property has become private property for the term of the lease.”

Given that short-term leases will necessarily be shorter than five years

and the Georgia Code asserts that “[a]ll renting or leasing of real estate

for a period of time less than five years shall be held to convey only

the right to possess and enjoy such real estate,” also known as a

usufruct, it seems that no short-term lease could grant more than that

limited right.

However, under the Georgia Code, an explicit

contractual term agreeing to more than a usufruct can convey “the

contrary,” or an estate.

III. PROPOSAL

The ability to control firearm presence during events with mass

attendance is undoubtedly attractive to event holders, as is the freedom

to host such events at the reduced cost of large outdoor public spaces.

It appears to be significantly less expensive for event holders to rent

public spaces for the events, especially where the events are intended

to host tens of thousands of people and require expanses of land to

accommodate the crowd.

100

With firearm exclusion comes a decreased

96. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 834 S.E.2d 27, 35 (Ga. 2019) (“[A]n

examination of the terms of the lease is required in order to determine whether the lease created an estate

in the private lessee such that the property has become private property for the term of the lease.”); John

Ruch, Music Midtown Weapons Ban Is Challenged by Gun Rights Advocate, SAPORTA REPORT (May 14,

2022, 9:01 AM), https://saportareport.com/music-midtown-weapons-ban-is-challenged-by-gun-rights-

advocate/sections/reports/johnruch/Phillip [https://perma.cc/US6U-HEFK] (“Phillip Evans, a gun rights

advocate from Monroe County, says state law bars the Piedmont Park festival from banning firearms

because it is on public land. His loss in the Botanical Garden case, he says, would be a win against Music

Midtown because the decision makes it clear that short-term tenants of a public park cannot ban guns.”).

97. See GeorgiaCarry.Org, Inc., 834 S.E.2d at 35.

98. GA. CODE ANN. § 44-7-1(a) (West 2022).

99. Id.

100. Wicker, supra note 9 (describing how “renting private property is ‘certainly more expensive’ than

hosting a festival at a city park, and festivals have to consider whether those spaces can meet their capacity

needs”).

18 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

risk of gun violence,

101

which may pose an even greater threat in high-

volume crowds where alcohol is present.

102

Excluding firearms also

gives event holders the benefit of a lower bill from liability insurers

and a wider selection of entertainers willing to help bring in an

audience. On top of a general fear of violence, entertainers may fear

the long-lasting effects on their careers for performing at events that

turn into mass shootings. Further, because events with such high

attendance bring huge revenue to the cities that host them, it is

mutually beneficial for governments to lease public property to private

lessees.

Although Georgia’s current gun laws heavily favor public firearm

carry,

103

a solution may yet exist for private parties looking to ban guns

on rented public property. This solution likely rests in the ability of

local and state government municipalities to create estate interests in

short-term rentals. A short-term lease contract, creating a brief estate

for years and allowing a private party to restrict gun carry, likely

adheres to both the CCA and the Georgia Code.

According to the holding in GeorgiaCarry.Org, Inc., if lease terms

specifically grant the private lessee a temporary estate in the property,

ownership of the property transfers to the private party for the duration

of that estate.

104

The property becomes legally private, and the public

lessor can retain a reversion to reacquire the property after a set time.

105

The best arrangement would be to specifically convey an estate for

101. See Leanna Garfield & Erin Snodgrass, Australia Has Nearly Eliminated Mass Shootings—Here’s

What the US Can Learn (Jul. 5, 2022, 6:27 PM), https://www.businessinsider.com/does-gun-control-

work-2018-2 [https://perma.cc/SM3N-48KF] (citing many studies on the effectiveness of the Australian

National Firearm Agreement (NFA), including one by public health researchers at the University of

Pennsylvania that found “a 96% reduction in murders by guns since the NFA”).

102. See Charles C. Branas, SeungHoon Han & Douglas J. Wiebe, Alcohol Use and Firearm Violence,

NAT’L LIBR. OF MED. (Jan. 24, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4762248/

[https://perma.cc/9R45-KYSS] (unpacking the dangers posed by alcohol consumption around firearms).

103. See generally Adams, supra note 7.

104. See GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 834 S.E.2d 27, 35 (Ga. 2019).

105. See cases cited supra note 47.

2024] SHOOTING IN THE PARK 19

years. An estate for years need not actually last for years,

106

and would

provide the private lessee with “the right to use the property in as

absolute a manner as may be done with a greater estate.”

107

Although

this workaround may not be applicable to events like festivals held at

public parks that require permits rather than leases, this solution fits

neatly under the GeorgiaCarry.Org Inc. analysis.

108

A. Legislative Challenges to a Short-Term Estate for Years Solution

Atlanta, Georgia’s most populous city and a likely location for

large-scale events, grants licenses to event-holders rather than

leases.

109

Because the Atlanta Code of Ordinances does not include

explicit lease agreements between the city and private parties in its

current form, the Atlanta Code likely does not provide for the

possibility of a short-term estate loophole to the Georgia Code.

110

Therefore, modifications may need to be made to the Atlanta Code of

Ordinances for the proposal of short-term estates to make a meaningful

difference in the application of Georgia Code. Using lease agreements

in addition to, or in place of, permits would allow the city’s

government actors to convey estate interests in short-term rentals.

Though doable, modifying the Atlanta Code in this way may take a

106. Compare GA. CODE ANN. § 44-6-100 (West 2022) (“An estate for years is one which is limited in

its duration to a period which is fixed or which may be made fixed and certain. Such an estate may be for

any number of years . . . .”), with GA. CODE ANN. § 44-7-1(b) (West 2022). “All renting or leasing of real

estate for a period of time less than five years shall be held . . . to pass no estate out of the landlord, and

to give only the usufruct unless the contrary is agreed upon by the parties to the contract and is so stated

in the contract.” Id. Because parties are free to form a contract agreeing that an estate interest is conveyed

in a lease for less than five years, this implies that a shorter lease can still convey an estate for years. Id.

107. GA. CODE ANN. § 44-6-103 (West 2022) (“An estate for years carries with it the right to use the

property in as absolute a manner as may be done with a greater estate, provided that the property or the

person who is entitled to the remainder or reversion interest is not injured by such use.”).

108. See generally GeorgiaCarry.Org, Inc., 834 S.E.2d. Because GeorgiaCarry.Org requires a lessee

to hold an estate for years to effect private control over publicly owned property, the workaround

described in this proposal would allow short-term lessees to meet their requirement of holding estates for

years; they could then affect private control over publicly owned property. Id.

109. ATLANTA, GA., CODE § 142-3(d) (2006) (outlining the required permits for private events at

Atlanta’s public parks).

110. See id. The Code provision does not mention the use of leases in short-term rentals of government-

owned city property. Id.

20 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

significant amount of time and require approval that may be difficult

to get.

111

As mentioned, the Georgia Legislature has demonstrated a

commitment to enacting laws that call for a broad application of the

constitutional right to bear arms, specifically while on government-

owned public property.

112

It is extremely unlikely that the legislature

intended for private lessees to restrict firearm carry on public property

under any circumstances; their goal in making the 2014 amendments

to section 16-11-127 was most likely to prevent that outcome

entirely.

113

If any legal loophole to the provisions of section 16-11-127

were to become popular practice, the legislature would likely respond

with action. Given the evidently strong policy goal at hand, the

Georgia Legislature could choose to legislate against the conveyance

of short-term estates over publicly owned property. Whether by

clarifying section 16-11-127 or by more strictly defining an estate for

years under the Georgia Code, state legislative action could be taken.

B. Judicial Challenges to a Short-Term Estate for Years Solution

Although short-term estate interests are not specifically barred

under Georgia’s definition of an estate for years, an exceptionally

short-term estate may be challenged in Georgia courts. Groups like

GeorgiaCarry.Org, who sued the Atlanta Botanical Garden, are well-

known for pursuing legal action and would likely assert that an estate

for years lasting for only a day or weekend was not truly an estate for

111. How Your Council Works, ATLANTA CITY COUNCIL, https://citycouncil.atlantaga.gov/how-your-

council-works [https://perma.cc/9LNM-GWJ9]. Changes to the Atlanta City Code are deemed to be

ordinances which must go through the usual legislative procedure. Id. An ordinance proposing may fail

at any point of the journey to codification. Id. The first steps in passing an ordinance include the

legislation’s introduction to the council and a public commentary period. Id. The proposed ordinance must

receive a “favorable recommendation” from the standing committee before going to a full-council vote.

Id. If a majority votes in favor of the ordinance, the mayor still must sign it into law. Id. If the mayor

vetoes the proposed ordinance, a two-thirds vote by the City Council may override it. Id.

112. See Adams, supra note 7, at 24; see supra Part II (discussing the Georgia Legislature’s likely

intentions in enacting the CCA and modifying section § 16-11-127 of the Georgia Code).

113. See supra Part II.A.

2024] SHOOTING IN THE PARK 21

years, but a usufruct.

114

Concerns about granting such broad property

rights for a short time may have implications on other areas of law

(such as tax law) that make such short-term estates for years

impracticable, leading to further legal challenges.

115

An onslaught of

litigation from parties with various interests may precede a final

determination of the minimum length of an estate for years under

Georgia law.

Further, despite the valid concern for preventing gun violence on

public property, state and local governments may find the prospect of

granting short-term estates for years too risky to be worth the benefit.

As established, estates for years convey far more rights in a lessee than

a usufruct.

116

Ceding full estate interest to a private lessee for the

purpose of event safety could prevent government actors from

maintaining control over other major aspects of events held on public

114. See Dave Brooks, This Is the Man Responsible for Cancelling Music Midtown—And He’s

Surprised Too, BILLBOARD (Aug. 8, 2022), https://www.billboard.com/pro/gun-activist-responsible-

canceling-midtown-music-interview/ [https://perma.cc/AQ57-9PSK]. This article highlights the

representative from GeorgiaCarry.Org who brought suit against the Atlanta Botanical Garden in the

seminal GeorgiaCarry.Org, Inc. case. Id. “Evans has taken up the mantle of enforcing gun rights at

those public spaces where—according to the 2019 Georgia Supreme Court ruling—guns are legal

and should be allowed. Evans spends a significant amount of time scouring the websites of public

parks, pools and facilities on public land, looking for policies that prohibit guns.. [sic] He often posts

his findings online and even shares copies of the letters he sends insisting the weapons prohibitions

be removed from their website.” Id.

115. Delta Air Lines, Inc. v. Coleman, 131 S.E.2d 768, 771–73 (Ga. 1963). This case, which the

Georgia Supreme Court denied that it applied in GeorgiaCarry.Org, Inc., held that Delta Air Lines’s

leasehold interest in land owned by the City of Atlanta was subject to ad valorem taxation despite Delta’s

argument that the land was public property that could not be subject to such taxation. Id. The court wrote:

When the City of Atlanta conveyed to the Delta Corporation a leasehold estate in the land here involved,

it completely disposed of a distinct estate in its land for a valuable consideration, and Delta acquired it

and holds it as a private owner. When any estate in public property is disposed of, it loses its identity of

being public property and is subject to taxes while in private ownership just as any other privately owned

property.

Id. at 771. See also GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 834 S.E.2d 27, 33–35 (Ga.

2019). Discussing Coleman, the court wrote, “Coleman itself acknowledges that it was because the lease

at issue in that case created an estate—as opposed to a usufruct—that the property interest held by the

private entity was taxable.” Id. at 35.

116. Compare Usufruct, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A right for a certain period to

use and enjoy the fruits of another’s property . . . .”), with Estate, BLACK’S LAW DICTIONARY (11th ed.

2019) (“The amount, degree, nature, and quality of a person’s interest in land or other property; esp. a

real-estate interest that may become possessory, the ownership being measured in terms of duration.”).

See also GA. CODE ANN. § 44-6-103 (West 2022) (“An estate for years carries with it the right to use the

property in as absolute a manner as may be done with a greater estate . . . .”).

22 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

property. For example, the responsibility for directing traffic and

organizing available fire and medical teams around large-scale events

rests primarily on local governments; although city codes (like those

of Atlanta) often call for event holders to submit emergency response

plans in advance of large-scale events, public services remain in the

domain of the government.

117

With a reduced level of control over the

property after a lease agreement, government actors may be unable to

plan for the safety of the community adequately.

In a similar vein, the government has an interest in keeping its public

property as clean as possible. Reducing government control over the

property may carry with it the risk of serious destruction of property

and further public health concerns. Government officials may fear that

festivals in public parks, which are not subject to strict permit

requirements, could leave parks covered with garbage and debris that

would be expensive to clean and repair. The government would,

however, retain the ability to reclaim the land after the short-term

estate, and such a right of reversion may give lessees pause about

allowing significant damage to the land. Although an estate for years

provides an absolute right of use under the Georgia Code, the Code

clarifies that that right exists “provided that the property or the person

who is entitled to the remainder or reversion interest is not injured by

such use.”

118

Significant damage to public property would certainly

qualify as injury stemming from the private party’s use. Further,

contract provisions could likely account for the private lessee’s

damage liability, and permit requirements could still supplement short-

term estates.

117. ATLANTA, GA., CODE § 142-21 (2006) (“The host of any outdoor event is required to provide an

emergency services and fire safety plan, as that term is defined in section 142-2(i) above, for the

outdoor event, and shall be required to provide and pay for firefighter, emergency medical technician,

emergency medical personnel and/or ambulance service(s) for such internal emergency medical and

fire fighting services. This requirement notwithstanding, no Host shall pay for any of the costs set forth

in section 142-12(b)(4) above, nor for general fire services and enforcement, and emergency medical

services in the vicinity of the outdoor event.”).

118. See GA. CODE ANN. § 44-6-103 (West 2022).

2024] SHOOTING IN THE PARK 23

C. Federal Solutions

Although state and local legal solutions to the problem presented by

section 16-11-127’s strict provisions exist, they could be

supplemented by federal action. It is unlikely, but not impossible, that

a federal law could be passed that prevents state governments from

effectively mandating that private lessees of public property allow

firearm carry. Political pressure in the wake of recent mass shootings

may drive a federal solution.

119

Based on the demonstrated financial

effect of large-scale event cancellation and relocation, a Commerce

Clause tie-in may grant Congress the power to resolve this problem in

the coming decades, although similar attempts have failed in the

past.

120

A future president may pass an executive order to the same

extent.

121

The major problem with a federal law solution rests in the

Second Amendment and the Supreme Court’s interpretation of it.

Recent decisions regarding state gun laws suggest the Court would be

unlikely to find constitutional any strong federal law that disfavors

firearm carry.

122

CONCLUSION

It remains unclear under Georgia law how, if ever, a private party

could rent and utilize the state’s public spaces and successfully exclude

firearms for the duration of its use. For some, this is comforting; they

celebrate the state’s affirmation and protection of their constitutional

right to bear arms, especially in the public places they have the right

119. See A Partial List of Mass Shootings in the United States in 2022, N.Y. TIMES (Jan. 24, 2023),

https://www.nytimes.com/article/mass-shootings-2022.html [https://perma.cc/N4JU-WG8X].

120. U.S. CONST. art. 1, § 8, cl. 3; but see United States v. Lopez, 514 U.S. 549, 549 (1995) (“[T]he

possession of a gun in a local school zone is in no sense an economic activity that might, through repetition

elsewhere, substantially affect any sort of interstate commerce.”).

121. U.S. CONST. art. 11, § 1, cl. 1 (“The executive Power shall be vested in a President of the United

States of America.”). This section of the Constitution is generally viewed as instilling Presidents with the

power to issue executive orders. See id.

122. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2138 (2022) (finding a New

York law requiring a license for concealed carry in public places unconstitutional); see also U.S. CONST.

amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of the people

to keep and bear Arms, shall not be infringed.”).

24 GEORGIA STATE UNIVERSITY LAW REVIEW [Blog

to occupy. For others, the permitted presence of firearms in these

spaces during privately-hosted, widely-attended events creates

frustration, confusion, and fear. The only constant between both

interpretations of Georgia gun law seems to be the passion behind

those feelings.

The holding in GeorgiaCarry.Org Inc. interpreted the Georgia Code

to carry relatively strict requirements for leases between private and

public parties to allow exclusion.

123

Even so, the holding’s distinction

between a usufruct and an estate leaves open the possibility that

Georgia’s state and local governments could convey short-term estates

for years to guarantee firearm-free events in the state’s public

spaces.

124

Despite the hurdles that may prevent such a course of action,

the dangers prevented by utilizing this workaround seem worth the

legal battles that would follow. The Georgia Legislature and the

Supreme Court of Georgia have made clear that stricter gun regulation

is not in Georgia’s near future. As the law currently stands, the right to

constitutional carry in Georgia is broad and deeply state supported.

Public property, as a space for gathering, plays an important role in

American culture. Parks are spaces where people of all kinds are free

to join together—whether to socialize, exercise, play, or relax. Those

same public parks, when under private control for larger gatherings,

serve as meeting spaces for large groups to celebrate their common

interests. In the name of protecting constitutional carry, the Georgia

Code threatens the social nature of the state’s public spaces. Fear of

violence and of liability may force large social events out of the public

realm and may reduce the frequency of those valuable social

gatherings altogether. The role of public gathering spaces hangs in the

balance.

123. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 834 S.E.2d 27, 37 (Ga. 2019); see supra

Part I (discussing the holding in GeorgiaCarry.Org, Inc. and the strain it put on the ability of private

parties to exclude firearms on leased public property).

124. GeorgiaCarry.Org, Inc., 834 S.E.2d at 35. “Rather, an examination of the terms of the lease is

required in order to determine whether the lease created an estate in the private lessee such that the

property has become private property for the term of the lease.” Id. Leaving the determination up to the

terms of the lease leaves open the possibility that lease terms conveying an estate for years could be set

out even in a short-term lease. Id.

2024] SHOOTING IN THE PARK 25

It remains possible that over time, the Georgia Legislature will be

moved by public opinion to amend the Georgia Code once again,

removing the word “private” from its determinative place in section

16-11-127. In the meantime, further litigation may decide the future

of public property and firearm carry in Georgia. Ultimately, the

decisions of the Georgia Legislature and the Supreme Court of Georgia

will indicate to the world how far Georgia’s government is willing to

go and what it is willing to sacrifice to protect constitutional carry.