Weighing in on an issue that has divided trial judges, the Georgia Defense Lawyers Association has joined an appeal seeking to shield property owners from facing liability under Georgia's anti-gang law for criminal acts committed on their property.

Under the provisions of the Georgia Street Gang Terrorism and Prevention Act, a person can face civil penalties, including treble damages and forfeiture of a property found to have been used to further gang activity.

In what the GDLA's amicus brief describes as an "absurd and unreasonable interpretation" of the law, plaintiff's lawyers have—with mixed success thus far—added claims for violation of the Gang Act to premises liability lawsuits.

At least five trial judges, including one on the federal bench, have tossed out those claims but a DeKalb County judge also allowed them to proceed. That case ultimately settled pretrial, but last year another DeKalb County jurist, Judge Dax Lopez, declined to dismiss Gang Act-based claims against a Brookhaven apartment complex where the plaintiff, Manuel Hernandez, was paralyzed after being shot by two unknown assailants in 2017.

In his March 27, 2019, order, Lopez cited the statute's language declaring that "any real property" that is "owned, leased, or used by any criminal street gang for the purpose of conducting criminal gang activity shall constitute a public nuisance" under the law.

There were allegations of multiple instances of crime, violence and gang activity at the Terraces at Brookhaven, Lopez wrote, and the plain language of the act "necessarily authorizes, by operation of law, all the legal remedies for a public nuisance, against those who may have a duty to the plaintiff and allow such use.

"This is especially so since the statute does not expressly limit an action for treble damages only to gangs or their members," Lopez ruled, refusing to dismiss that claim along with claims for negligent security, and county and municipal nuisance violations.

The apartment complex's owner, Star Residential LLC, appealed the portion of the order dealing with the Gang Act to the Georgia Court of Appeals, arguing there was no evidence the shooter was a gang member or had ever been on the property before.

The appeal, filed by Hawkins Parnell & Young lawyers Warner Fox, Willie Ellis Jr. and Elliott Ream, said the law's purpose "is to eradicate criminal street gangs through property abatement and property forfeiture," and "further provides for monetary punishment against criminal street gangs through a private action or injunction, as well as forfeiture and abatement."

"The plain reading of these statutes demonstrates the purpose is to take aim at the street gangs themselves who conducted the 'criminal gang activity' that causes injury," it said, and "in no way provides for a civil action against a property owner or manager who did not commit the criminal actions."

Hernandez is represented by Moore Law Firm principal Leighton Moore and W. Calvin Smith II and W. Michael Smith of Calvin Smith Law.

A brief authored by Moore said that, while Star Residential argued the "plain language" of the statute clearly only authorized a cause of action against gang members and not property owners where they operate, no such limiting language is in the law itself.

The act "expressly incorporates pre-existing nuisance remedies and does not contain any language that somehow exempts owners or occupiers from the liability they would normally have for a nuisance on their property," it said.

The GDLA amicus brief, penned by Freeman Mathis & Gary partner Jake Daly, said the use of the Gang Act—originally passed in 1992 and revised in 1997—as a tool in negligent security actions is a relatively new phenomenon.

"This civil cause of action went unused for almost twenty years before creative attorneys representing plaintiffs in negligent security cases decided to try it," it said.

"The theory is that by 'allowing' criminal gang activity to occur on their property, owners should be liable for injuries sustained by victims of this particular type of crime," it said. "Of course, Georgia's premises liability statute already provides for the potential liability of property owners when their invitees are injured due to criminal activity—whether gang-related or not—on their property."

But premises liability law does not provide for treble damages like the Gang Act, Daly wrote.

"So, naturally, plaintiffs in negligent security cases started alleging claims under the [act] as a way to enhance their damages, even though it was never intended to be a substitute for, or even a supplement to, the premises liability statute," the brief said.

If such claims can be brought against property owners not involved in gang activity, "the ramifications for these individuals and businesses will be enormous," the defense association's brief said. "Virtually every subsequent negligent security lawsuit will include a claim under the [act] because it incentivizes litigation by providing for the recovery of treble actual damages."

The brief also said the Gang Act's provision for the seizure of property through civil forfeiture could raise constitutional issues of due process.

In an interview, Daly said that—while such an outcome would require the intervention of a state actor to initiate a separate civil forfeiture action—there is a section of the law allowing an injured party to lay claim to forfeited property.

"That's why I say part of the danger is that it would constitute a constitutionally excessive fine," said Daly. "On top of the treble damages, someone could come back and potentially take the entire property."

Defense attorney Fox expressed concern that such use of the law "will have an even more detrimental impact on our clients that own and manage apartment complexes. It is getting more and more difficult for them to obtain insurance."

"At some point, apartment owners and managers of lower priced apartments that cater to those in need of affordable and government assisted housing ( where most of the crimes occur) will simply not be able to stay in business," said Fox via email. "Then, where will the tenants go to find affordable housing?"

In an email, Hernandez's lawyer Moore said the Gang Act was specifically intended to hold gangs and the owners of properties that host them responsible.

"This statute gives property owners a choice: either take action to clean up gang-infested properties, or be held accountable when innocent people are injured by criminal gang activity," Moore said.

"The Legislature passed it years ago in an effort to harness the power of the civil justice system to aid in the fight against criminal gang activity," he said. "It's disappointing to see GDLA opposing that important legislative goal."

In a supplemental brief filed Tuesday, Moore said the amicus brief's assertion that allowing the claim to proceed would add Gang Act claims to every negligent security case "ignores the fact that the [act] does not create a claim for public nuisance against an owner or occupier unless the property in question is used by a criminal street gang for criminal gang activity."

"Injuries caused by a gang-related nuisance are gang-related injuries," Moore wrote. "GDLA's strained effort to raise the specter of unlimited liability ignores the legal safeguards that the Legislature created by incorporating the law of public nuisance into the [act]."