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It was not clear at arguments Thursday that a federal appeals panel was ready to revive a challenge to a Georgia law that says most out-of-state residents can’t get a gun license. But the judges suggested the case may get another try. U.S. District Senior Judge Clarence Cooper of Atlanta had dismissed the lawsuit last year, saying there wasn’t a real controversy because there was no allegation in the complaint that any plaintiff had actually applied for or been denied a license. A panel of the 11th U.S. Circuit Court of Appeals on Thursday heard the appeal of the plaintiffs, GeorgiaCarry.Org and Regis Goyke, a Wisconsin man who says he wants a Georgia gun license for when he visits relatives in the state. During a 30-minute oral argument, 11th Circuit Judge Charles R. Wilson wondered whether a facial challenge to the rule limiting gun licenses to Georgia residents—as opposed to a challenge to how the rule is applied in practice to the plaintiffs—would presumptively meet the legal requirement of ripeness, which says a case must stem from an actual, rather than a hypothetical, controversy. But Judge William H. Pryor Jr. expressed doubts about that possibility, suggesting the plaintiffs’ complaint had fatal flaws. Still, Pryor indicated the complaint could be re-filed with allegations that Goyke actually had applied for and been denied a license. “We’re going to see this again,” he said. The suit was filed in June 2008 against Pinkie T. Toomer, the probate judge for Fulton County. Georgia law gives probate judges the job of issuing firearms licenses. The lawsuit argues that the licensing law, O.C.G.A. § 16-11-129, violates Goyke’s right to travel from state to state. The plaintiffs claim that Toomer has largely delegated authority over firearms license applications to the clerk of the Fulton Probate Court—attorney James Brock—and his staff, a contention that Toomer’s lawyers with the Fulton County Attorney’s office have denied. The plaintiffs allege that their lawyer, John R. Monroe of Roswell, asked Brock if Goyke could apply for a gun license, and Brock responded that he could not, explaining Goyke had to live in Georgia. After Monroe sued Toomer to challenge the law, Cooper dismissed the case on a motion to dismiss, saying the controversy wasn’t ripe because there weren’t allegations in the complaint that Goyke or any other member of GeorgiaCarry.Org had actually requested an application for a gun license, applied for a license or received a final determination on such an application. Cooper said the opinion allegedly given by Brock was merely “a hypothetical opinion.” In a motion for reconsideration, the plaintiffs said Goyke in October 2008 had attempted to apply for a gun license in Fulton County, but the clerk who waited on him wouldn’t even give him an application due to his lack of residency. But Cooper put those allegations aside, saying they weren’t found in the plaintiffs’ amended complaint. Appearing before the 11th Circuit panel on Thursday, Monroe began to describe his contact with the Fulton Probate Court on the matter, but Pryor was dismissive of the idea that was sufficient. “It’s speculative; it’s hypothetical,” said Pryor. “Why not actually go through the motions and do it?” State law says Goyke can’t apply, Monroe responded. Wilson said the plaintiffs could argue that a facial challenge to a statute is presumptively ripe, but he said it wasn’t clear from the plaintiffs’ complaint whether they were making a facial challenge or an as-applied challenge. “You still have an opportunity to go back and re-file it,” Wilson noted. After Monroe sat down, Wilson asked Matthew C. Welch of the Fulton County Attorney’s office whether a facial challenge to the statute were presumptively ripe. “Theoretically, your honor, that could be correct,” responded Welch. But Pryor said he wasn’t sure that Wilson was right. “[Goyke] needs an actual injury, doesn’t he?” Pryor asked. Welch argued that Goyke needs to go to someone with ultimate authority for the licenses, not just a clerk. But Susan C. Bucklew, a visiting district court judge from Florida who is the third member of the panel, said she understood that if you’re not a resident, you can’t get an application. “That’s the allegation,” Welch responded. “But, no, it’s not correct.” And, he said, there are 159 counties in Georgia, each with a probate judge. “Without an act by Judge Toomer, this cannot be tied to her.” “Who would you sue?” Bucklew asked. “In this case,” said Welch, “someone needs to act.” Wilson wondered how a Georgia resident wanting a firearms license is to proceed. “They go straight to Judge Toomer’s office and bypass the clerk of court, that’s how it’s done?” No, acknowledged Welch, the applications are in the clerk’s office. Well, noted Wilson, Goyke says he went to the clerk. “He got a response that doesn’t bind Judge Toomer,” Welch replied. During his rebuttal time, Monroe said his client doesn’t need to track down Toomer at the courthouse in order to proceed with his case. “We’re just elevating form over substance, asking for him to perform a futile act,” said Monroe. Pryor suggested requiring Goyke to apply for a license wasn’t an exercise in futility. “The statute says he’s not eligible,” Monroe responded. Wilson said Monroe could have his client apply and then amend his complaint. Monroe responded that it would have to be a new lawsuit. “I guess you could do that, then make the allegations in the complaint,” said Wilson. “Then we’re back at square one, I guess.” The case is GeorgiaCarry.Org v. Toomer, No. 10-11951-C. Staff Reporter Alyson M. Palmer can be reached at [email protected]

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