Self Defense and Stand Your Ground Laws

Self Defense & Stand Your Ground Laws In Georgia

Answers To Your Questions

     In the past 6+ years, I have been successful in getting two different client's murder charges dismissed as self-defense. Because of this, I am often asked to explain how I was able to get that done, since it is not a common occurrence. The answer is that Georgia self-defense laws are tricky, but if you know the law and know how to apply it to the facts of your client's case, you have the best chance at success. Understanding the laws on self-defense in Georgia is good first step for everyone.

What does Georgia law say about self defense?

      In Georgia, self defense laws are actually called "justification." There are three common categories of justification (there are more scenarios discussed than just three, but I'm going to address the three common ones.) First, there is use of force in defense of yourself or others. Second is defense of habitation, and the third is defense of property other than habitation. 

What does the law say about self defense or defending others?

     Georgia Code Section 16-3-21(a) covers claims of self defense or defending someone else. "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 keys to this section is that someone must REASONABLY believe that force is necessary to protect themselves or someone else from IMMINENT use of UNLAWFUL force. A judge and/or jury is going to look at whether your belief that force is necessary was reasonable and that there was an unlawful threat that was imminent- meaning the force has to be about to happen.

     The next set of requirements in this statute section is where the amount of force is addressed. If the force you use is so great that it is intended to or likely to cause death (deadly or lethal force) or great harm, it is permitted only the judge and/or finds you REASONABLY believed that this level of force is necessary to prevent death or great harm to you or someone else. It is also permitted if you are trying to prevent a forcible felony. (A forcible felony is any felony with the use or threat of physical force or violence against a person.)

What does the law say about defending habitation like my home?

     Georgia Code Section 16-3-23 covers use of force against defense of habitation.

"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; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:

1. 1. The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
   2. That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
   3. The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony."

    So let's break this down. First you must REASONABLY believe that force is necessary to prevent/terminate an UNLAWFUL entry into or attack on a habitation. If you use force that is intended to or likely to cause death or great harm, then there are more requirements that must be satisfied in order to prove justification. Generally speaking, the entry that is occurring has to be violent and you reasonably believe it is made for the purposes of assaulting someone inside. Also, the force cannot be against someone who lives in the house and you have to know that a forcible entry has occurred; or you reasonably believe that the entry is being made for the purposes of committing a felony and you need to stop it. 

Is habitation just a home?

     No. The law says habitation includes homes, motor vehicles and places of business. So the law of justification covers protecting all these kinds of places.

What does the law say about defending personal property?

     Georgia Code Section 16-3-24 covers using force in defense of personal property:

1. 1. A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with real property other than a habitation or personal property:
      1. Lawfully in his possession;
      2. Lawfully in the possession of a member of his immediate family; or
      3. Belonging to a person whose property he has a legal duty to protect.
   2. The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property other than a habitation or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.

     To permit use of force to protect personal property, you must reasonably believe the force is necessary to prevent or stop interference with (like stealing of) your personal property. That personal property must be lawfully in your possession or the possession of an immediate family member or you have a legal duty to protect that property. If you use deadly force or force that may cause great injury to protect personal property, it can only be used if you REASONABLY believe it is necessary to stop a forcible felony.

What kind of property can I defend that is covered by this section?

     The law says any kind of property that isn't a motor vehicle is considered personal property. It's also important to note that this section covers defense of real property that isn't considered "habitation." 

What does Georgia's Stand Your Ground Law say?

     Georgia Code 16-3-23.1 is the section people often refer to as the stand your ground law. This law says "A person who uses threats or force in accordance with Code Section 16-3-21, relating to the use of force in defense of self or others, Code Section 16-3-23, relating to the use of force in defense of a habitation, or Code Section 16-3-24, relating to the use of force in defense of property other than a habitation, has no duty to retreat and has the right to stand his or her ground and use force as provided in said Code sections, including deadly force."

      The Georgia stand your ground law covers self-defense, defense of others, defense of habitation and defense of personal property. In all cases, the law says you have no requirement to retreat away from the threat. You have the right to stand your ground and use force (as permitted in each of the different code sections I discussed above.)

If it's self-defense, will the charges be dismissed?

     The law says that if you are able to prove self-defense, or defense of other persons, habitation or personal property, then you are immune from prosecution. This means they cannot prosecute you. [But there is an important exception: you cannot be in possession of certain outlawed weapons when claiming justification.]

     The process for getting the charges dismissed can take time, and you will usually see a very strong fight by the prosecution to stop the charges from being dismissed. If they believed they had enough to indict you for these charges, they usually don't agree that you should be immune from the charges. Your lawyer will have to start by gathering evidence and then filing an immunity motion for the judge to hear. This is the first time the issue of self-defense will be heard by a judge. If the judge agrees that it was self-defense (or justification under one of the other statutes) the judge can order the charges to be dismissed even before a trial because you are immune from prosecution. If the judge denies your immunity motion, you can still make the self-defense or justification argument again at your trial. If the jury agrees that it was self-defense, then they can find you not guilty. 

Are there drawbacks to claiming self defense?

      Any argument of self defense comes with risk. First, by arguing self defense (or the other kinds of justification) you are admitting that you used force against the "victim." You have the initial burden to prove that you acted in accordance with the laws of justification. In many situations, you are admitting to the facts as described by the police, but just saying that you had a lawful reason for doing them. This is a risk because if the judge and jury do not believe that you had a lawful reason for doing them, you have basically admitted to the crime. Also, the laws on self defense and justification mention the word reasonably multiple times. Even if you believe your response was reasonable, it is certainly possible that others will not find your actions to be reasonable. 

Can I claim self defense on any crime?

     While we hear of self defense claims mostly in murder and serious injury cases, there is no specific list of crimes included in the laws about self defense and justification. If you are charged with unlawfully using force against someone, you should discuss with an attorney whether a self defense claim is possible.

What do I do first if I have a self defense claim?

     Because self defense claims are complicated and can come with risk, your first step is always to hire a lawyer who has experience in dealing with self defense claims. These kinds of cases are not easy, and you want to be sure you are in good hands.