Using Self Defense in Georgia

Self defense is a valid defense to a criminal case in Georgia, but you need a skilled set of attorneys on your side to successfully use self-defense law in court.  At Zeliff | Watson, we have defended hundreds, into the thousands, of cases using self defense and other defenses tailored to the facts of your case.  Remember, no two cases are the same, and we believe that no two defenses should therefore be alike. 

Both of our lawyers, Peter Zeliff and Evan Watson, limit their law practice to criminal defense work, and can be spotted in court defending everyday citizens just about any given day.  Defenses like self defense require preparation, experience, and knowledge of the law in order to successfully craft your defense.

In Georgia, self defense is commonly used when charged with the following:

  1. Assault
  2. Battery
  3. Aggravated assault
  4. Aggravated battery
  5. Murder
  6. Felony murder

Of course, the above crimes are violent in nature and if you stand charged, obviously law enforcement assigned fault to you, without believing your side of the story.  This is often times the case, and our legal defense team knows how to get the other side- your side- out in a court of law.

Defending Your Case Using Self-Defense

A lot of people think that self-defense is a self-explanatory defense that can be easily used, but the reality is that there are many elements and requirements that must first be met to use such a defense. It is generally agreed that unless the state’s evidence raises the possibility of the existence of the defense, the defendant has the burden of production.

There are many Georgia laws relating to self-defense, including:

16-3-21. Use of force in defense of self or others, including justifiable homicide; conflicting rules

This code states that a person is justified in using force against another when and to the extent that he or she reasonably believes that such force is necessary to defend himself or herself. This code also applies to the defending of a third person against other's imminent use of unlawful force.

16-3-23 Use of force in defense of habitation

This code states that a person is justified in using force against another when and to the extent that he or she reasonably believes that such force is needed to prevent or stop another’s unlawful entry into or attack upon an occupancy; ALTHOUGH they are only justified in using such force that intendeds to or will likely cause death or great bodily harm if:

  1. The entry is made or attempted in a violent manner and he or she reasonably believes that the entry is made for offering violence to any person inside the dwelling;
  1. That force is used against another person who is not a member of the 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
  1. The person using such force reasonably believes that the entry is made or attempted for committing a felony therein and such force is necessary to prevent the commission of the felony.

Elements:

  1. Unlawfulness: This is the actor’s reasonable belief that he or she is defending themselves or another against unlawful force.  If the defendant is the aggressor or engaged in committing a crime or a tort action, a self-defense claim will not be allowed to be used. 
  2. Reasonableness: This requires that the actor’s belief in the necessity of using such for is reasonable and motivated by the fear of a reasonable man. To show such an element, a person may use the events leading up to the incident or other evidence of the victim’s violent character. To use one’s character, the defendant must be previously know of such conduct, which would help show that his fears were reasonable as well as actual.

Use of Force:

  • A person may only use the amount of force that would be necessary to defend themselves or a third party. This means that deadly force may only be used as defense against other deadly force.
  • If such force, when using self-defense, goes wrong and an innocent bystander gets killed or injured, the defendant incurs no liability for the injury or death so long as the requirements for self-defense is established and he or she did not act is wanton or reckless disregard for the bystander’s safety.

State of Mind:

  • If defendant has committed a homicide when they were defending themselves, the defendant’s state of mind during the time of homicide becomes very important.
  • Such as testimony about the effects of liquor or drugs on his behavior is relevant if found in his urine or blood samples.
  • A defendant’s mental state of mind at the time of the homicide is not relevant to his guilt or innocence unless it affords proof or evidence of his legal insanity.

Aggressor’s Use of Self-Defense:

  • Can only be applied in two limited situations. The first being when the aggressor is using non-deadly force and another uses deadly force to stop them. The second being when the aggressor begins to retreat and takes reasonable steps to withdraw from combat while effectively communicating his intent to the other person, but his opponent continues to attack him. Here the aggressor becomes the victim.

Duty to Retreat:

  • Georgia does not recognize the duty, if they are not the aggressor, to retreat before someone is able to use self-defense. In fact, Georgia has a stand your ground law that can be used in particular situations.

Imperfect Self-Defense:

  • This is where the defendants have an honest but unreasonable belief in the necessity of using force. In Georgia, imperfect self-defense does not fit within the State’s interpretation of voluntary manslaughter because the court is not free to create a “non-statutory” crime, so therefore it is tried under murder.

Justification Defense:

  • An evidentiary component that is generally used to establish the defendant’s reasonable belief that the use of force was immediately necessary to protect themselves. In this defense, they can offer relevant evidence that the defendant has previously been the target of family or child violence committed by the victim. This defense needs expert testimony that speaks on the condition of the defendant’s mind during the time of the offense, including how the previous acts and circumstances establishes the defendant’s reasonable belief in the imminence of the victims’ unlawful use of force.
  • As of self-defense, this defense is used upon the fears of a reasonable person, and not the reasonable fears of the defendant.

Battered Person Syndrome (Justification Defense):

  • This is used when the defendant, along with expert testimony, shows previous violent force by the victim, which creates a thought that the force used by the defendant to protect themselves was reasonable even if in fact it was erroneous. (expert testimony is needed in order to establish a prima facie case).
  • Many factors come into play when applying this defense, such as evidence of a close relationship between the victim and the defendant, and patterns of sexual, mental, or physical abuse. Psychological abuse alone is not enough to establish this defense.
  • Evidence of another person, such as a third party, committing the violent acts other than the defendant is not admissible. It is also not applicable where the victim is not a family member with a history of abusing the defendant.
  • If successful in establishing such a claim, specific instructions will be given to the jury that explains the defendant’s belief that the use of force was necessary against the victim’s imminent use of unlawful force.

Not Enough for a Claim:

  • Showing an unreasonable apprehension or a suspicion of harm is not enough to establish a self-defense claim.
  • Showing that the victim committed an illegal act or having the victim show that they were a victim of a previous attack is not enough to establish a self-defense claim.
  • Showing that the victim possessed a gun, which he may have access to, is not enough to fulfill the reasonableness element that is required.
  • If force is used by the defendant after the original danger has passed, self-defense cannot be used.

Restrictions of Right to Use Self-Defense:

  • It may not be used if a person provokes the use of such force against themselves intending to use force as an excuse to cause harm upon the other person.
  • It may not be used if a person is attempting to commit, committing, or fleeing after the commission of a felony.

Using Self Defense for an Unlawful Arrest:

  • Georgia has no distinct rule for this situation and applies the general rules of self-defense to arrests.
  • Even if the arrest in lawful, a person is entitled to defend themselves against excessive force by an arresting officer.

Case Examples:

Since the defendant challenged one of the victims to get the victims’ guns, adding that the defendant was already carrying a pistol, the defendant was an aggressor who was engaged in mutual combat, and the defendant was not justified in using force in defense of habitation when the defendant then began shooting, wounding one victim and killing another. McKee v. State, 280 Ga. 755, (2006).

Evidence showed the defendant gave some cocaine to the victim who left without paying. When the defendant followed, the two began shoving each other, and the defendant then fatally shot the victim. The court concluded that the occurrence of only a tense confrontation did not justify the defendant's use of deadly force.  Holmes v. State, 273 Ga. 644 (2001).

A battered person syndrome is not separate defense, but battered person evidence is admissible to show that reasonable person who had suffered similar abuse would have reasonable belief that use of force was necessary, and in such cases, the court should give jury instruction on that issue. Smith v. State, 268 Ga. 196 (1997).

Two elements must be present before the use of deadly force is justified: the first is the danger to either the actor or a third person must be imminent; and the second is the actor must reasonably believe that such force is necessary to prevent death or great bodily injury to self or a third person. Coley v. State, 201 Ga. App. 722, (1991).

Evidence that defendant was previously attacked with a knife and received scars to defendant's chest is relevant to whether defendant reasonably and honestly believed that deadly force was "necessary" to prevent death or great bodily injury to self. Daniels v. State, 248 Ga. 591, (1981).

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