Carter V Kemp Toomer Answer

Case 1:20-cv-01517-SCJ Document 39 Filed 05/05/20 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SARA CARTER and, GEORGIACARRY. )

ORG, INC., )
)
Plaintiffs, ) CIVIL ACTION FILE NO.
)
v. ) 1:20-CV-01517-SCJ
)
)
BRIAN KEMP, individually and in his)
official capacity as Governor of )
The State of Georgia and PINKIE )
TOOMER, individually and in her )
official capacity as Judge of the )
Probate Court of Fulton County, )
Georgia, )
)
Defendants. )
___________________________________)
DEFENDANT’S SPECIAL APPEARANCE ANSWER TO PLAINTIFF’S COMPLAINT
COME NOW, Defendant Honorable Pinkie Toomer, hereinafter
referred to as (“Defendant”), by and through her undersigned
counsel, and hereby files this Answer to Plaintiff’s Complaint.
FIRST DEFENSE
The Complaint fails to state a claim upon which relief may
be granted.
SECOND DEFENSE
The Complaint is barred, in whole or in part, by Sovereign
Immunity.
THIRD DEFENSE
The Complaint is barred, in whole or in part, by Official
Immunity.
FOURTH DEFENSE
The Court lacks jurisdiction over this matter as to Judge
Toomer due to insufficiency of process.
FIFTH DEFENSE
The Complaint should be dismissed because Plaintiffs lack
standing.
SIXTH DEFENSE
The Complaint should be dismissed because Plaintiffs cannot
show a clear legal right to the relief sought.
SEVENTH DEFENSE
The Complaint fails to establish a clear legal duty on the
part of Defendant Toomer to do the acts commanded.
EIGTH DEFENSE
The Complaint fails to establish that Defendant Toomer
committed a gross abuse of discretion.
NINTH DEFENSE
The Complaint fails because mandamus cannot compel a
general course of conduct.
-2-
TENTH DEFENSE
The Complaint fails to meet the requirements for the
issuance of mandamus under O.C.G.A. §§ 9-6-20 and 9-6-21.
ELEVENTH DEFENSE
The Complaint fails to establish the violation of any
constitutional right of Plaintiffs.
TWELFTH DEFENSE
The Complaint fails to plead the elements necessary to meet
the requirements for issuance of a declaratory judgment.
THIRTEENTH DEFENSE
Without waiving the above defenses or any other defenses to
which she may be entitled to by law, Defendant Toomer answers
the specific allegations of the Complaint as follows.
I. INTRODUCTION
1.
Defendant Toomer denies that Plaintiffs are entitled to the
relief sought and denies that she has deprived Plaintiffs of any
constitutional rights.
II. JURISDICTION & VENUE
2.
Defendant Toomer denies that this Court has jurisdiction
because of insufficiency of process.
-3-
3.
Defendant Toomer admits that venue is proper.
III. PARTIES
4.
Defendant Toomer is without sufficient information or
knowledge to either admit or deny the averment of Paragraph 4.
5.
6.
7.
Defendant Toomer admits that Brian Kemp is the Governor of
the State of Georgia.
8.
Defendant Toomer admits that Article 5, Section 2,
Paragraph 1 of the Georgia Constitution vests chief executive
powers in the Governor.
9.
Defendant Toomer admits that Article 5, Section 2,
Paragraph 2 of the Georgia Constitution provides that “the
-4-
Governor shall take care that the laws are faithfully executed
and shall be the conservator of the peace throughout the state.”
10.
Defendant Toomer is without sufficient information to
admit or deny whether Plaintiffs “pursuant to evidence from the
Supreme Court” has attempted to sue Kemp in his individual
capacity.
11.
Defendant Toomer admits that Paragraph 11 states that
Plaintiffs are bringing individual and official capacity claims
against Governor Kemp. Defendant Toomer is without sufficient
information or knowledge to either admit or deny the statement
expressing the manner in which Plaintiffs seek to bring suit
against Governor Kemp.
12.
Defendant Toomer admits that she is the Judge of the
Fulton County Probate Court.
13.
Defendant Toomer admits that O.C.G.A. § 16-11-129(a)(1)
provides in part that “The judge of the probate court of each
county shall, on application under oath, on payment of a fee of
$30.00, and on investigation of the applicant pursuant to
-5-
subsections (b) and (d) of this Code section, issue a weapons
carry license or renewal license…” Only upon the satisfactory
completion of all requirements is a permit to be issued.
14.
Defendant Toomer admits that for the purposes of this
lawsuit, she was acting in her official capacity as Probate
Court Judge.
15.
Defendant Toomer is without sufficient information to
admit or deny whether Plaintiffs “pursuant to guidance from the
Supreme Court” have attempted to sue her in her individual
capacity. Defendant Toomer denies that Plaintiffs are entitled
to the relief sought against her in her individual capacity.
16.
Plaintiffs seek to bring an individual capacity claim for
damages for federal claims against her. Defendant Toomer is
without sufficient information or knowledge to either admit or
deny the statement expressing the manner in which Plaintiffs
seek to bring suit against her but denies that Plaintiffs are
entitled to the relief sought.
-6-
17.
Plaintiffs seek to bring official capacity claims for
declaratory and injunctive relief. Defendant Toomer is without
sufficient information or knowledge to either admit or deny the
statement expressing the manner in which Plaintiffs seek to
bring suit against her but denies that Plaintiff are entitled to
the relief sought.
18.
Plaintiffs seek to bring an official capacity claim for
mandamus. Defendant Toomer is without sufficient information or
knowledge to either admit or deny the statement expressing the
manner in which Plaintiffs seek to bring suit against her but
denies that Plaintiffs are entitled to the relief sought.
III. FACTUAL BASIS
19.
Defendant Toomer admits that Governor Kemp declared a
public health emergency on March 14, 2020 because of the COVID-
19 pandemic.
-7-
20.
Defendant Toomer admits that on March 14, 2020, Chief
Justice Melton of the Supreme Court declared a judicial
emergency for the State of Georgia.
21.
Defendant Toomer admits that Chief Justice Melton’s
emergency order directed courts to maintain essential functions
and that processing GWLs is not an essential function under the
emergency order.
22.
Defendant Toomer is without sufficient information and
knowledge to be able to admit or deny the conclusions of
“probate judges of Georgia” generally. Defendant Toomer admits
that the Chief Justice of the Georgia Supreme Court and the
Probate Judges Council have concluded that GWLS are non-
essential. Defendant Toomer further admits that she is unable
to process GWLs because she is unable to complete the
investigation in the current public health emergency and given
the social distancing guidelines.
-8-
23.
Defendant Toomer admits that that she posted on her
website that due to the public health emergency, applications
for GWLs will not be accepted until further notice.
24.
Defendant Toomer admits that during the emergency she has
followed the guidance of the Chief Justice of the Georgia
Supreme Court and the Judicial Council of Probate Judges with
respect to applications for GWLs. Defendant Toomer denies that
she has refused to process GWLs licenses. As described on the
website notice referenced in Paragraph 23 of the Complaint,
Defendant Toomer is unable to process GWLs because of her
inability to obtain finger printing services through authorized
contractors.
25.
Defendant Toomer denies Plaintiffs’ truncated recitation of
O.C.G.A. § 16-11-126.
26.
Defendant Toomer admits that O.C.G.A. § 16-11-125 (5)
defines “weapon” as a knife or a handgun.”
-9-
27.
Defendant Toomer denies Plaintiffs truncated recitation of
the holding in District of Columbia v Heller speaks for itself.
28.
Defendant Toomer denies Plaintiffs truncated recitation of
the holding in District of Columbia v Heller speaks for itself.
29.
Defendant Toomer denies that Nunn v. State is relevant to
the intent matter.
30.
Defendant Toomer denies Plaintiffs truncated recitation
of the holding in Ferguson v. Perry.
31.
Defendant Toomer admits that O.C.G.A. § 16-11-129(a)(1)
provides in part that “The judge of the probate court of each
county shall, on application under oath, on payment of a fee of
$30.00, and on investigation of the applicant pursuant to
subsections (b) and (d) of this Code section, issue a weapons
carry license or renewal license…” Only upon the satisfactory
completion of all requirements is a permit to be issued.
-10-
32.
knowledge to either admit or deny the averments of Paragraph 32
and denies the same.
33.
.Defendant Toomer is without sufficient information and
34.
35.
36.
-11-
37.
38.
Defendant Toomer admits that a March 19, 2020 letter to
Governor Kemp is attached to the Complaint.
39.
Defendant Toomer responds that the 14th Amendment of the
Constitution of the United States speaks for itself.
COUNT 1 – VIOLATIONS OF DUE PROCESS
40.
Defendant Toomer, in part, admits that the 14th Amendment
provides that no state “shall deprive a person of life, liberty,
or property without due process of law….” Defendant Toomer
denies that Plaintiffs have suffered a deprivation.
41.
Defendant Toomer responds that 42 U.S.C. § 1983 speaks for
itself.
-12-
42.
Defendant Toomer admits that Article 1, Section 1
Paragraph 1 of the Constitution of the State of Georgia states
“no person shall be deprived of life, liberty, or the property
except by the process of law.” Defendant Toomer denies that
Plaintiffs have suffered a deprivation under Art 1. § 1, Para.
1.
43.
Defendant Toomer denies that she is violating Plaintiff
Carter’s right to due process and 42 U.S.C. § 1983 and the
Georgia Constitution.
COUNT 2 – VIOLATIONS OF RIGHT TO KEEP AND BEAR ARMS
44.
Defendant Toomer admits that the Second Amendment of the
United States Constitution and Article 1, Section 1 Paragraph 8
of the Georgia Constitution provide a right to keep and bear
arms. Defendant Toomer denies that Plaintiffs have suffered a
deprivation of rights under either of these provisions.
45.
Defendant Toomer denies that Plaintiffs have been deprived
of any rights under 42 U.S.C § 1983.
-13-
46.
Defendant Toomer denies that she is violating 42 U.S.C §
1983 or the Constitution of the State of Georgia.
COUNT 3 – VIOLATION OF O.C.G.A. § 16-11-129
47.
Defendant Toomer denies that the current health emergency
and the inability to process GWL applications, constitutes a
violation of O.C.G.A. § 6-11-129. Defendant Toomer is
effectively unable to process GWL application given the current
public health crisis caused by COVID-19 and the guidance
provided by the Chief Justice of the Supreme Court and the
Judicial Council of Probate Judges and the Judicial
Qualifications Commission.
PRAYER FOR RELIEF
48.
Defendant Toomer denies that Plaintiff Carter is entitled
to a writ of mandamus within the time required by law.
49.
Defendant Toomer denies that Plaintiffs are entitled to a
declaration.
-14-
50.
Defendant Toomer denies that Plaintiffs are entitled to
costs and attorney’s fees against her in her official capacity.
51.
Defendant Toomer denies that Plaintiffs are entitled to a
declaration against Governor Kemp.
52.
Defendant Toomer denies that Plaintiffs are entitled to an
injunction against Governor Kemp.
53.
Defendant Toomer denies that Plaintiffs are entitled to
costs and attorney’s fees against her in her individual
capacity.
54.
Defendant Toomer denies that Plaintiffs are entitled to any
other relief.
GENERAL DENIAL
Defendants deny each and every allegation of Plaintiff’s
Complaint not specifically admitted, denied, or otherwise
contradicted herein.
WHEREFORE, Defendant Toomer prays that:
A. Plaintiffs’ Complaint be dismissed in its entirety;

-15-
B. All costs of this litigation be paid by Plaintiffs;
C. The Court impanel a jury of twelve should this case be
tried; and
D. Any other relief that this court deems just and proper be
granted.
Respectfully submitted, this 4th day of May, 2020.
OFFICE OF THE COUNTY ATTORNEY

Patrise Perkins-Hooker
COUNTY ATTORNEY
Georgia Bar No.:572358
Kaye Burwell
Georgia State Bar No.:775060
Kaye.burwell@fultoncountyga.gov
Cheryl Ringer
Cheryl.ringer@fultoncountyga.gov
Eugene Fuller
Eugene.fuller@fultoncountyga.gov
Attorneys for Defendants
OFFICE OF THE FULTON COUNTY ATTORNEY

141 Pryor Street
Suite 4038
Atlanta, Georgia 30303
(404) 612-0246 (Office)
(404) 730-6324 (Facsimile)
-16-
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SARA CARTER and, GEORGIACARRY. )

ORG, INC., )
)
Plaintiffs, ) CIVIL ACTION FILE NO.
)
v. ) 1:20-CV-01517-SCJ
)
)
BRIAN KEMP, individually and in his)
official capacity as Governor of )
The State of Georgia and PINKIE )
TOOMER, individually and in her )
official capacity as Judge of the )
Probate Court of Fulton County, )
Georgia, )
)
Defendants. )
___________________________________)
CERTIFICATE OF SERVICE
The undersigned counsel certifies that the foregoing
DEFENDANT’S ANSWER TO PLAINTIFFS’ COMPLAINT has been prepared
with one of the font and point selections approved by the Court
in Local Rule 5.1B.
John R. Monroe
John Monroe Law, P.C.
Attorney for Plaintiff
156 Robert Jones Road
Dawsonville, GA 30534
17
Eugene Fuller
Eugene.fuller@fultoncountyga.gov
Attorneys for Defendants
This 4thday of May, 2020.
OFFICE OF THE FULTON COUNTY ATTORNEY

141 Pryor Street, S.W.
Suite 4038
Atlanta, Georgia 30303
(404) 612-0246 (office)
(404) 730-6324 (facsimile)
18

Carter V Kemp Toomer Answer

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Carter V Kemp Toomer Answer

Încărcat de

Drepturi de autor:

Formate disponibile

Case 1:20-cv-01517-SCJ Document 39 Filed 05/05/20 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

SARA CARTER and, GEORGIACARRY. )

DEFENDANT’S SPECIAL APPEARANCE ANSWER TO PLAINTIFF’S COMPLAINT

COME NOW, Defendant Honorable Pinkie Toomer, hereinafter

referred to as (“Defendant”), by and through her undersigned

counsel, and hereby files this Answer to Plaintiff’s Complaint.

The Complaint fails to state a claim upon which relief may

The Complaint is barred, in whole or in part, by Sovereign

The Complaint is barred, in whole or in part, by Official

The Court lacks jurisdiction over this matter as to Judge

Toomer due to insufficiency of process.

The Complaint should be dismissed because Plaintiffs lack

The Complaint should be dismissed because Plaintiffs cannot

show a clear legal right to the relief sought.

The Complaint fails to establish a clear legal duty on the

part of Defendant Toomer to do the acts commanded.

The Complaint fails to establish that Defendant Toomer

committed a gross abuse of discretion.

The Complaint fails because mandamus cannot compel a

general course of conduct.

The Complaint fails to meet the requirements for the

issuance of mandamus under O.C.G.A. §§ 9-6-20 and 9-6-21.

The Complaint fails to establish the violation of any

constitutional right of Plaintiffs.

The Complaint fails to plead the elements necessary to meet

the requirements for issuance of a declaratory judgment.

Without waiving the above defenses or any other defenses to

which she may be entitled to by law, Defendant Toomer answers

the specific allegations of the Complaint as follows.

Defendant Toomer denies that Plaintiffs are entitled to the

II. JURISDICTION & VENUE

Defendant Toomer denies that this Court has jurisdiction

because of insufficiency of process.

Defendant Toomer admits that venue is proper.

Defendant Toomer is without sufficient information or

knowledge to either admit or deny the averment of Paragraph 4.

Defendant Toomer is without sufficient information or

knowledge to either admit or deny the averment of Paragraph 5.

Defendant Toomer is without sufficient information or

knowledge to either admit or deny the averment of Paragraph 6.

Defendant Toomer admits that Brian Kemp is the Governor of

the State of Georgia.

Defendant Toomer admits that Article 5, Section 2,

Paragraph 1 of the Georgia Constitution vests chief executive

powers in the Governor.

Defendant Toomer admits that Article 5, Section 2,

Paragraph 2 of the Georgia Constitution provides that “the

and shall be the conservator of the peace throughout the state.”

Defendant Toomer is without sufficient information to

admit or deny whether Plaintiffs “pursuant to evidence from the

Supreme Court” has attempted to sue Kemp in his individual

Defendant Toomer admits that Paragraph 11 states that

Plaintiffs are bringing individual and official capacity claims

against Governor Kemp. Defendant Toomer is without sufficient

information or knowledge to either admit or deny the statement

expressing the manner in which Plaintiffs seek to bring suit

against Governor Kemp.

Defendant Toomer admits that she is the Judge of the

Fulton County Probate Court.

Defendant Toomer admits that O.C.G.A. § 16-11-129(a)(1)

provides in part that “The judge of the probate court of each

county shall, on application under oath, on payment of a fee of