By Matthew Wilson – Courtesy Arnall Golden Gregory, LLP
The COVID-19 pandemic devastated the live event industry. For the greater part of two years, in-person concerts, theatrical performances, film festivals, and public gatherings were postponed and canceled due to legal mandates stemming from the public health emergency. In 2022, as the pandemic fog that shuttered the industry lifted, public events came roaring back to their pre-pandemic scale and frequency. However, the event industry in Georgia currently faces a new threat, which — like the pandemic — has the potential to acutely disrupt, if not permanently damage, the industry. In August, the promoters of the Music Midtown festival canceled the decades-old event just six weeks prior to the concert date. Although the organizers declined to comment as to the specific cause for cancelation, the Atlanta Journal-Constitution reported, the event “was canceled . . . in part due to the state’s laws surrounding guns in public parks.”1
GeorgiaCarry.org, Inc. et al v. Atlanta Botanical Garden
This story is rooted in a 2014 law that sanctioned the right for licensed gun owners to carry weapons in every location in the state not otherwise excluded by law.2 Subsequently, the Supreme Court of Georgia ruled that “every location” includes public property even if that property is exclusively controlled by a private person or entity. The case of record, GeorgiaCarry.org, Inc. et al v. Atlanta Botanical Garden (2019), specifically addressed the question of whether the Atlanta Botanical Garden, a private entity that operates on city-owned land pursuant to a 50-year lease, can legally exclude weapons from the property under its control.3
The court ruled that the Botanical Garden can prohibit weapons because (1) the public land is, for legal purposes, considered private property by virtue of its long-term lease with the city (i.e., an “estate for years”); and (2) the Botanical Garden is considered the owner of the property during the life of its estate for years.
Importantly, the former is both necessary and indispensable for purposes of finding the latter. Without the grant of an estate to the Garden, the premises would remain public property and therefore the Garden would be precluded from prohibiting guns on the property.
While the ruling proved favorable for the Garden, the court’s holding spelled trouble for other private businesses that operate on public property pursuant to a short-term license or lease. The majority opinion stated that a limited right of access, possession, and/or use that does not grant an “estate” is known as a “usufruct.” The court also provided that “private lessees of property who hold only a usufruct may no longer choose to exclude persons carrying firearms on the property.”4 To be sure, most private events that occur on public property, including ticketed concerts and festivals, hold a usufruct as opposed to an estate. According to the court, this means that events such as Music Midtown cannot prevent a ticketholder from entering the event grounds with a legal firearm.
Moreover, while the statute at issue in the 2019 ruling limited the right to carry to persons with a valid carry permit, subsequent modifications to the law liberalized the statute to provide:
. . . any lawful weapons carrier may carry a weapon in all parks, historic sites, or recreational areas . . . including all publicly owned buildings located in such parks, historic sites, and recreational areas, in wildlife management areas, and on public transportation; provided, however, that a person shall not carry a handgun into a place where it is prohibited by federal law.5
Consequently, the formal licensure requirement was wholly wiped away by the Georgia Legislature. Under current law, a “lawful weapons carrier” is “any person who is licensed or eligible for a license . . . and who is not otherwise prohibited by law from possessing a weapon.”6 Further, as a so-called “shall issue” state, a probate court judge in Georgia is generally required to issue a license to an applicant who meets the minimum qualifications subject to certain limited exceptions. This effectively authorizes any adult in the state to carry a firearm in public.
Impact on Georgia’s Entertainment Industry
At this point, there are few sensible options available for the organizer of an event held on public land desiring to prohibit guns inside the event, whether ticketed or open to the general public. Marginal questions remain as to how to distinguish an “estate for years” from a “usufruct” for purposes of characterizing the public versus private status of the property.7 In some limited instances, one might reasonably assert that a specific individual is not a “lawful weapons carrier” under the law. Most recently, various municipalities have hinted at adopting ordinances that prohibit weapons from ticketed events, which raises issues of preemption and prior state court rulings that are problematic for the municipalities. It is unlikely that any such options offer a reasonably satisfactory course of action. For practical purposes, going forward event organizers must decide to either exclusively use private (or perhaps federally controlled) land for the event, use public land and allow guns on the premises, or not produce the event in Georgia.
Concert and event organizers have long leased public property for logistical and geographic reasons. In many instances, public property is the only feasible option available for large-scale events, particularly in urban and naturally unique settings. Public spaces are often both preferable and necessary. Furthermore, large events involve intensive, long-term, and careful planning. Multi-day music festivals, for example, often book top-tier talent 12 to 18 months in advance. Vendors, production elements, and infrastructure are typically secured via multi-year contracts, and the financial commitment for the promoter team is substantial. Weighing these considerations coupled with reputational sensitivity, public safety concerns, and potential legal liability, an event organizer is unlikely to produce an event in which persons are allowed to carry guns on the premises. The risks simply outweigh the rewards. In the wake of the Music Midtown cancelation in August, several other annual festivals in Georgia are signaling that their events are also in jeopardy.8 Absent a material modification to the law by the Georgia Legislature, the future of large-scale festivals, concerts, and events in the state looks quite bleak.
In the words of Warren Zevon, from the perspective of an industry that was uniquely impacted by the global pandemic, it seems that they are once again “stuck between a rock and a hard place.”9