Hertz v. Bennett

The mandamus plaintiff's 1994 nolo contendere plea to five felony charges in Florida made him ineligible for a weapons carry license pursuant to O.C.G.A. § 16-11-129.

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Probate Judge Andrew Bennett denied James Hertz’s application for a license to carry a weapon under OCGA § 16-11-129 based on Hertz’s 1994 nolo contendere plea to five felony charges in Florida. Hertz filed a complaint for mandamus in superior court, alleging the denial violated the state statute and his constitutional right to keep and bear arms. Denying mandamus, the superior court found that the probate judge followed the statutory requirements in denying Hertz’s application and that this denial did not violate the federal or state constitutions. Because Hertz’s nolo contendere plea makes him ineligible for a weapons carry license under Georgia law and the statute as applied to him does not violate the United States or Georgia Constitutions, we affirm.

When he was 18, Hertz entered a plea of nolo contendere in the Escambia County Circuit Court to three counts of aggravated assault with a deadly weapon, one count of shooting from a vehicle, and one count of possession of a short barrel weapon. He was sentenced to three years’ probation and six months’ community control, which he successfully completed. In September 2012, Hertz filed an application for a weapons carry license in Quitman County, Georgia. When asked whether he had ever been convicted of, or pled guilty or nolo contendere to, any felony offense, he answered “yes,” a fact confirmed by a criminal background check. After his application was denied, Hertz filed a complaint for mandamus, seeking to compel the probate judge to issue a weapons carry license on the grounds that he was a law-abiding citizen and met all the requirements of OCGA § 16-11-129. Alternatively, Hertz alleged that the denial of the license violated his right to keep and bear arms under the Second Amendment of the United States Constitution and Article I, Section I, Paragraph VIII of the Georgia Constitution.

Hertz v. Bennett

The mandamus plaintiff's 1994 nolo contendere plea to five felony charges in Florida made him ineligible for a weapons carry license pursuant to O.C.G.A. § 16-11-129.

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