On May 31st, a couple of thousand Athens, Georgia, residents and a few “chaos tourists” joined millions in hundreds of cities and towns across the nation in protesting the wanton killing of George Floyd by a Minneapolis police officer. In Athens, the demonstration proceeded without incident until the late hours of the night when an order to disperse was followed by tear gas and sponge projectiles deployed against a small group of lingering demonstrators. In the wave of community revulsion that’s ensued, one of the responsible parties is getting a pass. That’s the Georgia General Assembly.
When I read the report about the demonstration that the Athens-Clarke County Police Chief submitted to the county’s assistant manager, the sentence that jumped out at me was the one about the armed demonstrators asserting their rights under Georgia’s open carry law when police confronted them. The police couldn’t extract them from a potentially volatile situation as long as they weren’t pointing their weapons at anyone. In Georgia, that’s a felony that can send you away for up to twenty years. But as long as you resist the impulse to do that, you’re good. Pictures posted on Facebook showed that these guys were savvy enough to keep their weapons pointed at the ground.
The Chief’s account has been widely disputed, but no one disagrees that armed demonstrators were in the crowd for some period that day or that they returned later in the week. I’m not going to re-litigate the performance of the police that night. Absolutely nothing qualifies me to do that. I wasn’t there and even if I had been, I still wouldn’t be qualified, not knowing what they knew or having been trained to do what they do. Instead I want to call attention to how Georgia’s open carry law raises the odds of police conduct like what’s outraged much of the Athens community.
I have no idea how the Chief sized up the situation when he and his officers arrived on the scene. He doesn’t keep me in the loop about these things. But trying to put myself in his shoes, I can imagine that what went through his head is something like this. As a dedicated public servant, he understood his mission to be protecting life and property while also protecting the protestors in the exercise of their First Amendment rights of peaceful assembly. Although it was possible for him to do all that in the presence of people armed with serious weaponry like assault rifles, he thought that his odds would be dramatically better if he could reduce the threat level by extracting the gunslingers from the tinderbox, leaving everybody else in peace to march, chant, sing and whatever other benign pursuits they were moved to.
Trouble is that Georgia’s open carry law left the Chief only two ways of dealing with armed demonstrators, both of which suck. One was to keep a wary eye on them until they threatened or, God forbid, shot somebody, which would’ve done nothing to improve the tone of the proceedings by lowering the threat level in a situation where emotions were already running high. The other was to invoke whatever emergency powers were available to him, ordering the crowd to disperse, and arresting those who refuse to comply.
But if he took the second option, he had to be very careful not to give even the appearance of singling out the gun enthusiasts for this treatment, exposing his government employer to liability for denying them their rights under Georgia’s open carry law. The order to disperse had to be enforced against everybody or nobody. And if, in his estimation, the threat level was too high, the crowd too big, and compliance too spotty, out would come the tear gas, sponge projectiles and other persuaders, aborting the demonstrators’ exercise of their First Amendment right to peacefully assemble.
So Georgia’s open carry law backs conscientious police professionals into an unenviable corner. They have to choose between waiting for armed rowdies to threaten or shoot somebody, on the one hand, and disbanding a largely peaceful crowd to get the gun slingers off the scene, on the other.
Some Facebook theorists in my orbit rejected the view that the Chief is a conscientious police professional, alleging instead that he was acting as a willing agent of white supremacy to shut down a Black Lives Matter demonstration. I had a hard time following their arguments to that effect. But supposing that they’re right and the Chief was carrying white supremacists’ water or was just a well-meaning bumbler looking to excuse his failures, Georgia’s open carry law, a headache for responsible professionals, becomes, for their opposite, a convenient pretext for suppressing dissent. So Georgia’s open carry law is a twofer, a perverse incentive for both good cops and bad cops to gas people.
Does it have to be this way in an open carry state? No, it doesn’t.
For example, Alabama, which Georgians like to disparage, prohibits possession of firearms by civilians within 1000 feet of a public demonstration after being told that one is taking place. But what’s a no-brainer in Alabama is a bridge too far in Georgia.
Even Mississippi, which, like Georgia, generally bars local governments from regulating firearms, makes an exception for weapons at a “political rally, parade or official political meeting.” Several cities in the state avail themselves of that exemption.
In North Carolina, another open carry state, it’s a common law offense to “go armed to the terror of the public.” North Carolina courts have recognized that as an offense as far back as the early 19th century and its Supreme Court upheld it as recently as 1968. A Fort Bragg soldier found out a few years ago how it works there. He walked through a shopping mall in full dress uniform carrying his service weapon to have his picture taken at a photo studio. Alarmed shoppers called 911, the police cleared the mall and he was charged with “going armed to the terror of the public,” a misdemeanor in North Carolina.
Meanwhile, Georgia’s romance with guns is a gift to the tear gas industry. Our country is host to one of the world’s largest producers, Combined Systems, tucked away in Jamestown, Pennsylvania, population 617.