The Georgia Street Gang and Terrorism Act (GSGTA) provides, in pertinent part: “Any person who is injured by reason of criminal gang activity shall have a cause of action for three times the actual damages sustained and, where appropriate, punitive damages...” O.C.G.A. § 16-15-7 (c). The statute also provides: “[a]ny real property which is erected, established, maintained, owned, leased, or used by any criminal street gang for the purpose of conducting criminal gang activity shall constitute a public nuisance and may be abated as provided by Title 41, relating to nuisances.” O.C.G.A. § 16-15-7 (a). Subsection (b) limits the parties who may bring an action for abatement to the “district attorney, solicitor-general, prosecuting attorney of a municipal court or city, or county attorney in any superior, state, or municipal court.” O.C.G.A. § 16-15-7 (b).
On June 7, 2021, DeKalb State Court Judge Mike Jacobs, in a robbery victim’s premises liability case against an apartment complex security company, dismissed as unconstitutional Plaintiff’s claims seeking treble damages under GSGTA on the grounds that it does not give parties that are not involved in gang activity fair notice that they could be sued for treble and punitive damages, which is in violation of their due process rights under the U.S. and Georgia constitutions. Nathaniel Hobbs v. JazAtlanta 519 d/b/a Hidden Villas Apartments, et al.; DeKalb County State Court, 19A77180-5.
Judge Jacobs found that while Plaintiff did not have standing to bring an action to abate a public nuisance which arises from gang activity, he otherwise could seek to enjoin violations of the SGTPA under the express language of the statute. Moreover, while Plaintiff may also have standing to pursue an action for civil monetary damages under O.C.G.A. §16-15-7, it was unclear against whom he could bring such an action, in particular, the apartment complex security company. Judge Jacobs focused on the legislative intent expressly set forth at O.C.G.A §16-15-2, et al, which focuses on the eradication of criminal activity by deterrence and punishment of criminal street gangs through forfeiture of the profits, proceeds, and instrumentalities acquired, accumulated, or used by criminal street gangs (ie, hit them in the pocket where it really hurts):
It strains common sense and sound reasoning that the General Assembly intended for a victim of criminal gang activity to seek these penalties against anyone and everyone that he or she alleges contributed to his or her injury. Instead, the penalties likely are aimed at ‘criminal street gangs’, ‘criminal gang activity,’ and ‘forfeiture of the profits, proceeds, and instrumentalities acquired, accumulated, or used by criminal street gangs’ as provided in O.C.G.A. §16-5-2. They probably are not aimed at a security company that may have enabled a nuisance through its negligence.
Judge Jacobs granted Plaintiffs a Certificate of Immediate Review; however, the parties in the matter have agreed to attend mediation so the issue may not make it to the Georgia Supreme Court at this time or become binding law.
There is another premise’s liability shooting case, Star Residential, LLC v. Hernandez, No. S20C1214, 2020 Ga. LEXIS 897 (Nov. 2, 2020), that is currently pending before the Georgia Supreme Court. The Trial Court denied the landowner’s Motion to Dismiss the GSGTA cause of action finding that it is for the jury to determine whether GSGTA applies to the case. Unfortunately, the landowner failed to raise the unconstitutionality issue. The Court of Appeals affirmed the Trial Court. The case was argued before the Georgia Supreme Court on March 25, 2021 on the issue: “Whether the Court of Appeals properly construed the civil liability provision of the Georgia Street Gang Terrorism and Prevention Act, see OCGA § 16-15-7 (c)?”
We will continue to closely follow developments in this area of premises liability in Georgia. Best practices dictate that where a Plaintiff alleges the civil applicability of GSGTA and seeks treble damages, Defense Counsel should promptly file a Motion to Dismiss the GSGTA claim on all possible grounds, including its unconstitutionality.