A Summary of Georgia’s Self-Defense Laws
In Georgia, established case law describes self-defense as "the right to defend one’s self if attacked or threatened with injury." Georgia law distinguishes between self-defense and defense of others. In Paschal v. State, the Georgia Supreme Court explained that "prior to 1996, the right to defend the person of another was coextensive with the right of the person being assisted to repel an attack. After the 1996 amendment, however, the right to defend a third person was made coterminous with the right of self-defense of the person so defended… As such, the victim may not be required to have a reasonable and commensurate belief that he is facing a risk of serious bodily harm… Rather, it is sufficient that the defender has that belief." Thus, the same evidentiary standard applies in cases involving self-defense and defense of others.
Perhaps the most fundamental principle of self-defense laws is that the use of force must be "justified." A person is justified in threatening or using force against another when the person reasonably believes that such conduct is necessary to defend himself or a third person against the other’s imminent use of unlawful force. Georgia Code Section 16-3-21(a) provides that a person is justified in using force against another when and to the extent that he reasonably believes that such force is necessary to defend himself against the other’s imminent use of unlawful force.
Georgia self-defense law provides for both a reasonable belief standard and a "stand your ground" doctrine. The reasonable belief standard applies to circumstances where there is an imminent danger of bodily harm and the person is justified in using force. The law allows persons to meet force with equal force , but not deadly force, unless the attacker does not retreat from the threat after the use of non-deadly force. The "Stand your ground" doctrine applies to situations where an individual is attacked by another with deadly force and allows the person to defend himself in any place he may lawfully be as long as he is not the initial aggressor and he is not committing a crime at the time he is attacked.
Self-defense laws in Georgia also include protections for individuals who use force against an intruder: Any person who uses force to resist or defend himself against an intruder does not have a duty to retreat. A person is authorized to use force against an assorted intruder of a dwelling, owned motor vehicle, or place of employment, which is legally occupied by him, if he or she reasonably believes that such force is necessary to prevent or terminate the unlawful entry or attack. The use of force may also even be argued as legally justified against an intruder into a place of business or motor vehicle even if the owner of the place of business or motor vehicle is not present.
It is important to note that if the actor is the initial aggressor or provokes and continues a physical altercation with force, he is not entitled to claim self-defense in court.
Georgia’s Stand Your Ground Law
Georgia law provides individuals the right to defend themselves when they are threatened and have reason to fear serious injury or death. Georgia courts have expanded this right substantially in a line of cases that goes back to at least 1834, but more importantly, several statutes passed in recent years have expanded and codified the right. The most recent of these is the "Stand Your Ground" law enacted in 2006 that is codified at O.C.G.A. 16-3-23.1. The law authorizes a person to use "force, including deadly force, against another person when and to the extent that he or she reasonably believes that such self-defense is necessary to prevent or halt the other person’s imminent commission of a violent crime" which is defined to include murder, attempted murder, voluntary manslaughter, sexual assault, robbery, aggravated battery, aggravated assault, and burglary.
The Stand Your Ground law supersedes and broadly expands upon the common law defense of self-defense in Georgia. Traditionally in Georgia (and many other states) a citizen had a duty to retreat from a threatening situation and could only respond with deadly force if there was unqualified certainty that a reasonable person in the same situation would believe they could not otherwise protect themselves. Under the old law, one who did not retreat could be convicted of a crime even if they sincerely believed they were acting out of self-defense, if proof was adduced that such person could have retreated.
Since the enactment of the "Stand Your Ground" law, retreat is no longer a prerequisite to legal use of deadly force in self-defense. Thus, where the common law defense of self-defense was allowed where the factual circumstances manifestly supported that rationale, the Stand Your Ground law allows a defendant to raise self-defense even where retreat would easily be possible. The law creates a strong presumption that a non-retreating person "has a reasonable belief that such force is necessary and is justified" if the following conditions exist:
Deadly Force in Self-Defense
The use of deadly force is justified if:
- (1) The person using the force is without fault in the cause of the occasion for self-defense;
- (2) The person has reasonable grounds to believe that the danger is imminent that a felony will be committed upon his person or occupied habitation or a violent injury will be inflicted upon his person;
- (3) The force is necessary to prevent the intrusion.
The use of deadly force is not justified If:
- (1) The person against whom the threat of force is made is doing no more than he is legally required to do in going into a threatened location;
- (2) The person against whom the threatened force is making in resisting the threat of force uses or threatens to use force against another person other than the person claiming the justification;
- (3) Where possible, the person claiming self-defense retreats to the wall or safely surrenders his dwelling, except when the person is attacked within his own dwelling, in which case he has no duty to retreat;
- (4) The person who uses or threatens to use unlawful force against another individual has a protected right under Georgia law to go into or remain in the threatened location.
Your Castle, Your Home: The Castle Doctrine
In addition to Stand Your Ground and other self-defense laws, Georgia law expressly authorizes a person to use force against an intruder who has unlawfully and violently entered a dwelling. Georgia’s version of the Castle Doctrine is found in Georgia Code Annotated Section 16-3-23.1, entitled "Use of force in defense of habitation."
Under the law, "[a] person is justified in the use of force against another when and to the extent that he or she reasonably believes that such force is necessary to prevent or terminate such other’s unlawful entry into or occupation of a dwelling." Importantly, the law provides that a person is justified in the use of deadly force if the use of such force is "necessary to prevent a perpetrator’s infliction upon a person protected by this Code section of serious bodily injury or strangulation." And a "deadly weapon" means any "object, device, or instrument used offensively against a person or possessing a substantial risk of death or seriously bodily injury."
Even better for homeowners, the presumption of self-defense in the use of deadly force in the home provides greater protection since the homeowner is not required to retreat from the residence, even if it would have been possible. In other words, "[a] person who is not first attacked and has a right to be present at the location where the attacked occurs is no duty to retreat prior to using force in self-defense." In contrast, for Stand Your Ground rights under O.C.G.A. § 16-11-132, the person may not provoke the incident, must be able to retreat safely, and must attempt to retreat before using deadly force, unless for wounding or killing a person who unlawfully and violently attacks the person in his or her home, workplace, or motor vehicle.
In practice, when the circumstance permit, it is always wise to call the police and/or run the call-in recording on your security system. If an investigation reveals that the homeowner responded with reasonable force to an illegal intrusion, the homeowner should not have a problem with being prosecuted or sued.
Self Defense Against Domestic Violence
The standard for justifiable self-defense is low: It encompasses the situation where a defendant "is not the initial aggressor, but is the one first threatened with unlawful force from the other party." In fact, the law "places responsibility on a troublemaker of some type to react without putting the first threatener to any further trouble." Thus, when an unprovoked assault occurs, the victim does not have to first use non-violent means to dissipate the situation. Assume, for example, that you are out on the street, minding your own business, and someone suddenly approaches you and essentially tries to mug you. Presumably, you’re not going to sit idly by and allow the person to inflict harm on you or take your property. You will defend yourself to prevent the unlawful application of force against you. The law allows you to do this. The same principle applies in domestic abuse situations. However , a person claiming self-defense against such an act must prove as part of this defense that he or she did not provoke the situation. This is because of the high potential for serious injury or death in domestic violence situations and the need to avoid future abuses. In Georgia, there are two laws that address self-defense situations concerning domestic violence. First, Georgia law provides that a person acting in self-defense who is not the initial agresser has no duty to retreat from his or her home before using self-defense. Second, Georgia law states that no person has a duty to retreat from his or her residence and place of business, even if such a person was the initial aggressor.
Criminal Charges When You Claim Self-Defense
Not all self-defense claims result in criminal charges being dropped. In fact, losing a self-defense case can result in harsher legal penalties. For example, not only did you suffer the loss of your case, but all of the acts you thought were justified will now be treated differently under the criminal code. It is essential that any case you bring is valid based on the self-defense law in Georgia.
There are those who attempt to use self-defense as an excuse to avoid criminal liability for various forms of assault. The problem begins when someone reacts either too emotionally or physically to an altercation and exceeds what they believe the law considers reasonable force. Not only will this result in charges being brought against them, but they will face significant challenges when it comes to the criminal justice system.
Therefore, it is important to understand exactly how the self-defense law is applied in Georgia and what to expect if you lose your case.
Whether your self-defense claim is deemed justifiable or not will have a direct impact on the outcome. If the law finds that use of force was justified, your charges may be dropped or reduced. However, pleading guilty or being found guilty of assault will go on your criminal record.
A non-justifiable claim, on the other hand, will result in conviction and record of your violent offense. A finding of justifiable self-defense will not leave you with a criminal record. However, any charges of assault will impact future job opportunities, housing, loans, and other areas of life even if this first case ends without any impact. There are many negative consequences to having an assault charge on your record.
It is possible to have the evidence found inadmissible in court; however, generally speaking, courts take multiple factors into consideration at trial, such as the following.
It is important to have all evidence gathered by a skilled Atlanta criminal defense attorney. Having professional help with gathering all evidence, witness statements, and more will not only help to ensure the case is won, but it can also help to eliminate as much of the harm from the incident from showing up on your record as possible.
Recent Legal Changes and Recommended Cases
Amendments to Georgia’s self-defense law were passed in 2017 and went into effect on January 1, 2018. In regard to Stand Your Ground laws, they remove the duty to retreat if a person is outside of their home, vehicle, or place of business and provides greater rights to those who may be confronted by a person with a deadly weapon. While this law was changed, it is not expected to be enacted widely. District attorneys anticipate that prosecutors will first determine if the person was acting in self-defense or destroyed property in self-defense in any given situation before investigating the no-retreat provision. The law also defines what makes up a "reasonable belief" to use deadly force and eliminates the language "imminent" attack when talking about what may make a person act in self-defense. The law will also require that district attorneys who prosecute murder cases add an affidavit that simply says the law was followed. At the same time, a bill to provide certain civil immunity to businesses that may be threatened by disruptive behavior was ultimately not passed.
Influential cases such as Sharp v. the State of Georgia and Simpson v. State of Georgia are also important to note. In the case of Sharp, it was ruled that an intoxicated man did not know that he was entering onto another person’s property and did not have the intent to commit any crime. In the case of Simpson, it was ruled that a burglar cannot claim self-defense for injuring someone when they were committing a crime. Most recently, in 2018, in the case of State of Georgia v. Thomas, the court ruled that self-defense cannot be used if a person acts unreasonably.
Consult an Attorney For Your Self Defense Case
When it comes to dealing with self-defense claims, especially in cases of assault, restraint, false imprisonment, or even murder, having an experienced Georgia self-defense lawyer on your side can mean the difference between a conviction and a not guilty verdict. In most cases, the police are going to side with whoever appears to be the victim or the one who got hurt more badly. As such, they are going to have a one-sided account of the situation to work from. If you do not have your account of the situation officially on the record, it may be difficult to do so later on. If you are acting in self-defense, the chances are that you are going to have to get arrested and go through the courts in order to be exonerated . What you need is someone who understands how self-defense claims are handled in Georgia, who can provide defense on your behalf and help clear your name of any criminal charges that may be filed against you. That is where our team at The Kessler Law Firm comes in. While no criminal defense lawyer in Georgia can guarantee you particular results, having an experienced, professional attorney on your case will help give you the best chance of a positive outcome. We are happy to take all the time necessary to walk you through any questions you may have about the legal process and what to expect, and will keep you apprised of how your case is developing throughout your time with us. When you are dealing with a self-defense case, call our team for a complimentary consultation at 404-687-2277.