If you are a gun owner in Georgia, or are worried about becoming a victim of a crime, you may be concerned about when and how you can stand your ground to defend yourself, your home, and others against illegal activity. Find out from our attorneys how Georgia’s immunity statutes work, and what it will look like if you need to raise self-defense claims in a criminal case.
In Georgia, assault, causing someone bodily harm, and killing another person are all crimes. Murder is a capital offense with very serious consequences. However, the Georgia legislature recognizes that sometimes harming or killing another person is necessary and justified. That justification is found in GA Code § 16-3-21 (2015), which says:
“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.”
The law goes on to say that a person is never justified in using force if he or she:
Legal statutes can be hard to read. Essentially, the Georgia stand your ground law says that, except in certain circumstances, you may be justified in threatening or harming someone if you reasonably believed it was necessary to stop yourself or someone else from being illegally harmed. Deadly force is only justified if it was reasonably necessary in response to a threat of deadly force or to prevent a forcible crime like robbery or rape. Georgia is a “stand your ground” state. This means, according to GA Code § 16-3-23.1 (2015), you do not have to try to retreat to safety before defending yourself, others, or your own home.
While self defense and defense of others are based on attacks against your body, the castle doctrine applies to crimes against your property -- specifically your home. GA Code § 16-3-23 (2015) says:
“A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation.”
In other words, if you reasonably believe that someone is trying to break into your home or damage your house, you can threaten or use force to the extent necessary to make them stop. However, the rules for when you can use deadly force to defend your property are different than the standards under the state’s personal laws. You are only justified to use deadly force if:
These sections of the Georgia Code are called the “Immunity Statutes.” If you fall under the protection of one of these statutes you are immune from prosecution for the harm your defensive act caused. If you stood your ground and defended yourself, another, or your home, you may have been charged with:
It is up to you, and your criminal defense attorney, to raise the issue of self-defense, defense of others, or defense of property to trigger the appropriate immunity statute. To do this, your defense lawyer will file an “immunity motion” before your case goes to trial. It will then be your responsibility (with the help of your lawyer) to show it is more likely than not that the immunity statute applies (the “preponderance of the evidence”). If you win your immunity motion, the criminal charges will be dismissed.
Sometimes, you don’t have all the facts in time to file an immunity motion before trial. In other cases, the judge may rule that you did not meet the “preponderance of evidence” standard. However, you still may be able to have your case dismissed if the jury decides your use of force was justified. If you didn’t file an immunity motion, or the judge ruled against you, your criminal defense attorney can request that justification jury instructions be provided to the jury along with a description of the elements of the crime you were charged with and other directions about how to determine guilt or innocence.
In some cases, it may be easier to win a case for justification at trial than in a pretrial immunity motion. Remember that before trial, you, the criminal defendant, must prove that your actions were justified by a preponderance of the evidence. However, at trial, it is the prosecutor who must show that your actions were not justified. As long as you can present some evidence that justified your action -- even your own testimony -- it will be up to the prosecutor to prove that you are guilty beyond a reasonable doubt. If they can’t, the jury may return a not guilty verdict, and the charges will be dismissed.
As a Georgia resident, you have the right to protect yourself, your loved ones, and your home. At the McCoy Law Firm, LLC, our experienced criminal defense attorneys know how to use the state’s immunity statutes to protect you from criminal prosecution if you exercise that right and show you were justified in your actions. If you have been charged with a crime because you stood your ground or defended your home, please contact Criminal & DUI Law of Georgia so we can begin working on your case right away.