Evans v. Gwinnett County Public Schools

FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

July 1, 2016

In the Court of Appeals of Georgia
A16A0245. EVANS v. GWINNETT COUNTY PUBLIC
SCHOOLS.

MERCIER, Judge.

Phillip Evans appeals an order of the Superior Court of Gwinnett County

dismissing his complaint against the Gwinnett County Public Schools (the “School

System”). Evans contends that the trial court erred by ruling that a declaratory

judgment may not issue to address the validity of a proposed future action, by ruling

that the School System has sovereign immunity against state law claims, by ruling

that the threat of arrest cannot constitute a Fourth Amendment violation, and by

failing to consider the availability of damages as a remedy. Finding no error, we

affirm.
 Evans is a resident of Gwinnett County, and in 2014 his child attended public

school in Gwinnett County. The school his child attended is owned and operated by

the School System. Evans possesses a Georgia Weapons Carry License (“GWL”)

pursuant to OCGA§ 16-11-129. Under OCGA § 16-11-127.1 (b) (1), it is a crime to

carry a firearm in a “school safety zone.” The school which Evans’s child attended

is a “school safety zone” as defined by OCGA § 16-11-127.1 (3).

During the 2014 legislative session the General Assembly passed House Bill

No. 826 and House Bill No. 60. House Bill No. 60 (“HB 60”) prohibited anyone from

carrying any weapon (including a pistol or revolver) in a school safety zone, with the

exception that a GWL holder is permitted to do so when he “carries or picks up” a

student. See HB 60, Act 604, Ga. L. 2014. In contrast, House Bill No. 826 (“HB

826”) contained provisions that expressly conflicted with HB 60. Under HB 826,

GWL holders were permitted to possess their licensed firearms within a school safety

zone (a term redefined in HB 826). See HB 826, Act 575, Ga. L. 2014. The two bills

contained conflicting versions of OCGA § 16-11-127.1. Where HB 60 prohibited

possession of a firearm in a school safety zone (except that a GWL holder could when

carrying or picking up a student), HB 826 expressly authorized a GWL holder to

2
possess a firearm in a school safety zone without the aforementioned qualifying

language.

HB 826 was signed into law by Governor Deal on April 22, 2014, while HB

60 was signed into law on April 23, 2014. See HB 60 and HB 826 supra. The version

of OCGA § 16-11-127.1 that was published in the Official Code of Georgia

Annotated was the one contained in HB 60. See OCGA § 16-11-127.1 (2014).

After the laws were passed, Evans contacted the School System to ask if, as

GWL holder, he would be permitted to carry a licensed firearm in the schools owned

and operated by the School System. On July 28, 2014, an official from the School

System replied to Evans. The official explained that it was still a crime for Evans to

carry a firearm in the School System’s schools unless he was picking up or dropping

off a student. He explained that if Evans chose to carry a firearm in a School System

school, the School System would seek to have him prosecuted, and that they might

issue him a criminal trespass warning. Evans did not carry a firearm into a school

system school, and was not arrested or prosecuted.

On September 2, 2014, Evans filed a complaint seeking damages, along with

declaratory and injunctive relief. Evans’s complaint alleges that the School System

violated his rights under OCGA §§ 16-11-127.1 and OCGA 16-11-173. Furthermore,

3
he sought a declaration that OCGA § 16-11-127.1 gave GWL holders the right to

carry their firearms in a school safety zone. Evans later amended his complaint to

include a claim under 42 U.S.C. § 1983 alleging that the School System violated his

right against unlawful seizure under the Fourth Amendment of the United States

Constitution.

The School System filed an answer along with a motion to dismiss Evans’s

complaint on October 9, 2014. After a hearing, the trial court entered an order on

February 5, 2015, granting the School System’s motion to dismiss, dismissing all

Evans’s claims without prejudice. This appeal followed.

1. Evans argues that the trial court erred by ruling that the School System has

sovereign immunity against state law claims. “We review de novo a trial court’s grant

of a motion to dismiss on sovereign immunity grounds, bearing in mind that the party

seeking to benefit from the waiver of sovereign immunity has the burden of proof to

establish waiver.” Pelham v. Board of Regents of the University System of Georgia,

321 Ga. App. 791 (743 SE2d 469) (2013) (citation and punctuation omitted).

Moreover, “[a] motion to dismiss asserting sovereign immunity. . . is based upon the

trial court’s lack of subject matter jurisdiction, rather than the merits of the plaintiff’s

claim.” Bonner v. Peterson, 301 Ga. 443 (687 SE2d 676) (2009) (citation omitted).

4
 The Georgia Constitution provides that, “sovereign immunity extends to the

state and all of its departments and agencies. The sovereign immunity of the state and

its departments and agencies can only be waived by an Act of the General Assembly

which specifically provides that sovereign immunity is thereby waived and the extent

of such waiver.” Ga. Const. Art. I, § II Para. IX (e). We have stated previously that

this provision “includes county-wide school districts. . . created pursuant to Art. VIII,

Sec. V, Par. I of the 1983 Georgia Constitution and OCGA § 20–2–50. Like the

counties within which they are created, such school districts are political subdivisions

of the state entitled to the sovereign immunity extended to the state.” Coffee County

School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995) (citation and

punctuation omitted). Accordingly, Evans must show that the General Assembly

specifically waived the School System’s sovereign immunity with regard to his

claims.

Evans argues that such a specific waiver can be found in OCGA § 16-11-173

(b) (1) which provides:

Except as provided in subsection (c) of this Code section, no county or
municipal corporation, by zoning, by ordinance or resolution, or by any
other means, nor any agency, board, department, commission, political
subdivision, school district, or authority of this state, other than the

5
 General Assembly, by rule or regulation or by any other means shall
regulate in any manner:

...

(B) The possession, ownership, transport, carrying, transfer, sale,
purchase, licensing, or registration of firearms or other weapons or
components of firearms or other weapons[.]

The statute goes on to establish a private right of action which includes the potential

for the recovery of actual damages, equitable relief, and any other relief a court may

deem proper. OCGA § 16-11-173 (g). While this statute may constitute a waiver by

the General Assembly of the School System’s sovereign immunity in some instances,

it does not waive the School System’s sovereign immunity as to Evans’s claims.

The version of OCGA § 16-11-173 on which Evans relies did not become

effective until July 1, 2015, and so was not applicable at the time he filed this action.

The version of OCGA § 16-11-173 (b) (1) in effect in 2014 provided: “[e]xcept as

provided in subsection (c) of this Code section, no county or municipal corporation,

by zoning or by ordinance or resolution, nor any agency, board, department,

commission, or authority of this state, other than the General Assembly, by rule or

regulation shall regulate in any manner: (B) The possession, . . . carrying, . . . of

6
firearms.” This version of the statute, which was applicable at the time Evans filed

this action, did not specifically include school districts as did the one that became

effective on July 1, 2015.

“All statutes are presumed to be enacted by the legislature with full knowledge

of the existing condition of the law and with reference to it.” Botts v. Southeastern

Pipe-Line Co., 190 Ga. 689, 700-701 (10 SE2d 375) (1940) (punctuation omitted).

Moreover, “from the addition of words it may be presumed that the legislature

intended some change in the existing law.” Board of Assessors of Jefferson County

v. McCoy Grain Exchange, Inc., 234 Ga. App. 98, 100 (505 SE2d 832) (1998)

(citation and punctuation omitted). Applying these principles, if the version of OCGA

§ 16-11-173 (b) (1) applicable at the time Evans filed this action had waived the

sovereign immunity of school districts, it would render the addition of “school

district[s]” to the statute meaningless. Given the addition of these words to OCGA §

16-11-173 (b) (1), we must presume that the 2015 amendment was intended as a

change to the law. Since the legislature expressly added “school districts” to the

organizations regulated by the statute, it follows that under the prior law school

districts were not included. Accordingly, the version of OCGA § 16-11-173 (b) (1)

applicable at the time this case was filed did not act as a specific waiver of sovereign

7
immunity as to the School System. Thus, the trial court lacked subject matter

jurisdiction over Evans’s state law claims at the time the suit was filed and dismissal

was appropriate. See generally Bonner, supra.

2. Moreover, Evans’s claims are moot due to the General Assembly’s adoption

of House Bill No. 90 (“HB 90”). HB 90 was approved by Governor Deal on March

13, 2015, and states specifically that:

the text of Code sections and title, chapter, article, part, subpart, Code
section, subsection, paragraph, subparagraph, division, and subdivision
numbers and designations as contained in the Official Code of Georgia
Annotated. . . as amended by the text and numbering of Code sections
as contained in the 2014 supplements to the Official Code of Georgia
Annotated. . . are hereby reenacted.

House Bill 90, Act 9, Sec. 54, Ga. L. 2015. The version of OCGA § 16-11-127.1

printed in the Official Code of Georgia Annotated was the one adopted in HB 60, and

any conflict between the two versions was resolved by HB 90. OCGA § 28-9-5 (c)

provides that:

[t]he Code Revision Commission shall prepare and have introduced at
each regular session of the General Assembly one or more bills to
reenact and make corrections in the Official Code of Georgia Annotated,
portions thereof, and the laws as contained in the Code and any pocket
part, supplements, and revised volumes thereof. Except as otherwise

8
 provided by general law, such reenactment of the Official Code of
Georgia Annotated shall have the effect of adopting and giving force
and effect of law to all the statutory text and numbering as contained in
such volumes, pocket parts, and supplements, including but not limited
to provisions as published therein in accordance with subsections (a)
and (b) of this Code section.

Thus, by passing HB 90 and expressly reenacting the language of OCGA § 16-11-

127.1 taken from HB 60, the General Assembly affirmatively re-adopted the language

of HB 60.

“A case is moot when its resolution would amount to the determination of an

abstract question not arising upon existing facts or rights.” Brown v. Spann, 271 Ga.

495 (520 SE2d 909) (1999) (citation omitted). Here, Evans’s entire case is predicated

on the conflict between HB 60 and HB 826. But HB 90 resolved that conflict by

establishing that the language used in OCGA § 16-11-127.1 was the language from

HB 60. Accordingly, because the legislature has now affirmatively expressed its

intent by adopting the language contained in HB 60, whether the language of HB 826

should have been applicable at the time Evans contacted the School System is now

a mere abstract question. We hold that HB 90 establishes unequivocally that the

version of OCGA §16-11-127.1 printed in the Official Code of Georgia Annotated

9
is the version the General Assembly intended to pass and be given the full force of

the law, such that a person possessing a GWL is prohibited from carrying a firearm

in a school safety zone except as provided in OCGA § 16-11-127.1 (c). Thus, the

issues raised in Evans’s declaratory judgment action are moot.

For this Court to strike down two separate laws duly passed by the General

Assembly and signed by the Governor simply because Evans wishes his interpretation

of HB 826 to carry the day would be an example of the “judicial activism of the

highest order” that Evans so vociferously warns this Court about in his reply brief.

Additionally, Evans’s contention that the School System’s argument as to HB

90 is improperly being raised for the first time on appeal is unavailing. HB 90 was

signed into law on March 13, 2015, and the order dismissing Evans’s case was

entered on February 5, 2015. Thus, HB 90 was not law at the time this case was

before the trial court and the School System could not have raised that particular

argument below. In any event, its subsequent passage renders Evans’s case moot.

3. However, even if we were to find that both the previous and current versions

of OCGA § 16-11-173 (b) (1) acted as a waiver of sovereign immunity as to school

districts, and that Evans’s case is not moot, Evans’s claim still fails. OCGA § 16-11-

173 provides that no authority enumerated in the statute shall by way of “rule or

10
regulation or by any other means . . . regulate in any manner” the “possession,

ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of

firearms or other weapons or components of firearms or other weapons.” OCGA § 16-

11-173. The only authority which may regulate such activity is the General Assembly.

Id.

Here, there is no evidence that the School System has attempted to regulate the

possession, transport, or carrying of firearms in any manner. In fact, the only rule or

regulation under scrutiny as to the legality of citizens with GWLs being permitted to

carry firearms in school safety zones is OCGA § 16-11-127.1, which was passed by

the General Assembly. If the School System were to pass its own rules as to the

regulation of firearms, that might violate OCGA § 16-11-173. Here, an official with

the School System simply informed Evans, a GWL holder, that in his opinion Evans

would be in violation of OCGA § 16-11-127.1 if he carried a firearm onto school

property, adding that he would notify the authorities if Evans did so. Accordingly, the

School System was not in violation of OCGA § 16-11-173 (b) (1) even if the statute

did grant a waiver of sovereign immunity at the time the suit was filed.

4. Evans argues that the trial court erred by dismissing his claim under 42

U.S.C. § 1983 for failure to state a claim because a threat of arrest cannot be a Fourth

11
Amendment violation. A local governing body may be sued for monetary,

declaratory, and injunctive relief under 42 U.S.C. § 1983 when “the action that is

alleged to be unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted or promulgated by those whose edicts or

acts may fairly be said to represent official policy.” Monell v. Department of Social

Services of the City of New York, 436 U. S. 658, 659 (98 SCt 2018, 56 LE2d 611)

(1978). To prevail on a claim under 42 U.S.C. § 1983, Evans must demonstrate that

the School System subjected him “to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Furthermore,

he must show that “[the School System’s] action was taken with the requisite degree

of culpability and must demonstrate a direct causal link between the municipal action

and the deprivation of federal rights.” Board of the County Com’rs of Bryan County,

Okl. v. Brown, 520 U. S. 397, 404 (117 SCt 1382, 137 LE2d 626) (1997). Here, the

trial court ruled that Evans’s pleadings failed to establish a “seizure” such that he

would have a valid claim that his Fourth Amendment rights had been violated. We

agree.

Evans cites to GeorgiaCarry.Org, Inc. v. Georgia, 687 F. 3d 1244 (11th Cir.

2012) for the statement that:

12
 [t]his court has held that a risk of prosecution is sufficient if the plaintiff
alleges (1) that an actual threat of prosecution was made, (2) that
prosecution is likely, or (3) that a credible threat of prosecution exists
based on the circumstances. To show that a prosecution is likely or a
credible threat exists, a plaintiff must show that there is a realistic
danger of sustaining direct injury as a result of the statute’s operation or
enforcement. We look to see whether the plaintiff is seriously interested
in disobeying, and the defendant seriously intent on enforcing the
challenged measure.

Id. at 1252 (citations and punctuation omitted). While this is an accurate quote from

the Eleventh Circuit Court of Appeals, it does not support Evans’s argument. The

Eleventh Circuit made that statement while considering the question of standing to

bring a facial challenge to a statute, not in determining whether a “seizure” had taken

place for purposes of a Fourth Amendment analysis. We agree that Evans has

standing to bring his claims, however he has not brought a facial challenge to OCGA

§ 16-11-127.1, and the facts do not support a finding that Evans suffered a

deprivation of his Fourth Amendment rights.

“A person is seized by the police and thus entitled to challenge the

government’s action under the Fourth Amendment when the officer, by means of

physical force or show of authority, terminates or restrains his freedom of movement,

13
through means intentionally applied.” Brendlin v. California, 551 U. S. 249, 254 (II)

(A) (127 SCt 2400, 168 LE2d 132) (2007) (citations and punctuation omitted). To

determine whether a “seizure” has taken place within the meaning of the Fourth

Amendment, “the crucial test is whether, taking into account all of the circumstances

surrounding the encounter, the police conduct would have communicated to a

reasonable person that he was not at liberty to ignore the police presence and go about

his business.” Florida v. Bostick, 501 U. S. 429, 437 (II) (111 SCt 2383, 115 LE2d

389) (1991) (citations and punctuation omitted).

Here, Evans makes no argument that his freedom of movement was ever

restrained by police conduct, or that he did not have the freedom to go about his

business. Instead, Evans argues that it was the threat of prosecution by a school

official that amounted to a seizure and implicated his Fourth Amendment rights. He

cites to Steffel v. Thompson, 415 U. S. 452 (94 SCt 1209, 39 LE2d 505) (1974) for the

proposition that threats of arrest or prosecution can give rise to valid claims under 42

U.S.C. § 1983. However, Steffel is distinguishable from the instant case. In Steffel, the

petitioner and a friend were distributing anti-war handbills on an exterior sidewalk

of the North DeKalb Shopping Center. After they declined a request by shopping

center employees to stop passing out the handbills, the police were called. The police

14
officers told both individuals they would be arrested for violating a criminal trespass

statute if they continued passing out the handbills. The individuals left the shopping

center to avoid arrest. Two days later, the scene repeated itself, and while the

petitioner left to avoid arrest, his companion stayed and was arrested. The petitioner

brought suit against the DeKalb County Solicitor, the DeKalb County Police, as well

as the both the owner and the manager of the North DeKalb Shopping Center to

prevent enforcement of the statute at issue. See Steffel at 455-456.

In Steffel, the petitioner was actually threatened with arrest and prosecution by

police, and his companion was in fact arrested. The instant case is distinguishable

because Evans was never approached by police and threatened with arrest or

prosecution. Moreover, Evans does not claim that the law itself is unconstitutional or

being unconstitutionally applied to him. Instead, Evans is claiming he was seized in

violation of the Fourth Amendment because a school official informed him that if he

carried a weapon into a school safety zone he would be in violation of the law.

However, there is no evidence that Evans was approached by any law enforcement

official and threatened with arrest or prosecution. Absent more, the mere opinion and

statement of intent by a school official is not a seizure for purposes of a claim under

the Fourth Amendment. Thus, when we examine the totality of the circumstances we

15
conclude that Evans has failed to show that he suffered an injury sufficient to state

a claim under the Fourth Amendment, and the trial court was correct to dismiss his

42 U.S.C. § 1983 claim. See Solano-Rodriguez v. State, 295 Ga. App. 896, 901 (1)

(673 SE2d 351) (2009) (“Taking into account all of the foregoing circumstances, we

conclude that the trial court was authorized to find that no seizure occurred”).

5. In light of our finding that the trial court did not err in dismissing Evans’s

complaint, we need not address his remaining enumerations of error.

Judgment affirmed. Ellington, P. J., and Branch, J., concur.

16