A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 of Article 4 of Chapter 11 of this title.
(Code 1981, §16-3-24.2, enacted by Ga. L. 1998, p. 1153, § 1.2; Ga. L. 1999, p. 81, § 16; Ga. L. 2006, p. 477, § 2/SB 396; Ga. L. 2014, p. 599, § 1-3/HB 60.)
Cross references.- Possession of dangerous weapons, § 16-11-120 et seq. Carrying concealed firearms, § 16-11-126 et seq.
Editor's notes.- Ga. L. 2014, p. 599, § 1-1/HB 60, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Safe Carry Protection Act.'"
Law reviews.- For annual survey on criminal law, see 61 Mercer L. Rev. 79 (2009). For annual survey on death penalty law, see 61 Mercer L. Rev. 99 (2009). For article on the 2014 amendment of this Code section, see 31 Ga. St. U. L. Rev. 47 (2014). For annual survey on evidence law, see 69 Mercer L. Rev. 101 (2017). For article, "Vigilant or Vigilante? Procedure and Rationale for Immunity in Defense of Habitation and Defense of Property Under the Official Code of Georgia Annotated §§ 16-3-23,16-3-24,16-3-24.1, and16-3-24.2," see 59 Mercer L. Rev. 629 (2008).
JUDICIAL DECISIONS
Constitutionality.
- Defendant failed to show that O.C.G.A. § 16-3-24.2 treated members of a class differently from similarly situated individuals and, thus, the trial court did not err in upholding the statute as constitutional. Propst v. State, 299 Ga. 557, 788 S.E.2d 484 (2016), cert. denied, 137 S. Ct. 646, 196 L. Ed. 2d 542 (U.S. 2017), overruled on other grounds, Worthen v. State, 2019 Ga. LEXIS 22 (Ga. 2019).
Applicability.
- O.C.G.A. § 16-3-24.2 did not apply to defendant who was acting in self-defense. Boggs v. State, 261 Ga. App. 104, 581 S.E.2d 722 (2003).
Preponderance of evidence standard applies.
- To avoid trial, a defendant bears the burden of showing that the defendant is entitled to immunity under O.C.G.A. § 16-3-24.2 by a preponderance of the evidence. Bunn v. State, 284 Ga. 410, 667 S.E.2d 605 (2008).
Jury instructions.
- Defendant was not entitled to an immunity statute instruction at trial. Boggs v. State, 261 Ga. App. 104, 581 S.E.2d 722 (2003).
Because the issue of immunity under O.C.G.A. § 16-3-24.2 was a question of law for the trial court to decide, it was not error for the trial court to refuse to give a defendant's requested jury charge on immunity in the defendant's prosecution for involuntary manslaughter. Campbell v. State, 297 Ga. App. 387, 677 S.E.2d 312 (2009), cert. denied, No. S09C1263, 2009 Ga. LEXIS 411 (Ga. 2009).
Impact of jury's rejection of justification defense.
- To the extent it holds that O.C.G.A. § 16-3-24.2 does not apply once a jury rejects the defendant's justification defense, the Georgia Supreme Court overrules the Georgia Court of Appeals' decision in Eason v. State, 261 Ga. App. 221 (2003). Hipp v. State, 293 Ga. 415, 746 S.E.2d 95 (2013).
Motion must be decided pre-trial.
- In two related cases in which the state sought the death penalty against two defendants, and in a case of first impression interpreting the immunity from prosecution statute set forth in O.C.G.A. § 16-3-24.2, it was determined that the trial court erred by refusing to rule pre-trial on the defendants' motions for immunity from prosecution under § 16-3-24.2. Fair v. State, 284 Ga. 165, 664 S.E.2d 227 (2008).
Upon the filing of a motion for immunity, a trial court must determine before trial whether a person is immune from prosecution; thus, the trial court did not err in ruling on the defendant's self-defense claim before trial. State v. Sutton, 297 Ga. 222, 773 S.E.2d 222 (2015).
Although a trial court must rule on a defendant's motion that asserts entitlement to immunity prior to the trial, the hearing on the defendant's motion to dismiss the charges on grounds of immunity from prosecution was conducted after the jury was struck due to the state's witness not being available before the jury was struck; however, if anything, the state benefitted from the case proceeding as it did, and the state could not now complain about the timing of the hearing on the defendant's motion, which was filed before the jury was struck. State v. Smith, 347 Ga. App. 289, 819 S.E.2d 87 (2018).
Assuming that motions for immunity under O.C.G.A. § 16-3-24.2 were required to be made before trial, the defendant was entitled to file the defendant's motion after the grant of a new trial because it was as though no trial had been had under O.C.G.A. § 5-5-48. State v. Remy, 308 Ga. 296, 840 S.E.2d 385 (2020).
State's election to retry defendant allowed defendant to seek immunity.
- It was not procedurally improper for the defendant to have moved for immunity from prosecution under O.C.G.A. § 16-3-24.2 before a new trial because once the state elected to retry the defendant, the defendant was free to seek immunity from prosecution under § 16-3-24.2 before any new trial was conducted. State v. Hamilton, 308 Ga. 116, 839 S.E.2d 560 (2020).
Reconsideration of pretrial ruling on immunity.
- Appellate court erred by reversing a trial court order granting the defendant a new trial because the trial court had the inherent authority to reconsider the court's pretrial ruling on the defendant's motion for immunity from criminal prosecution under O.C.G.A. § 16-3-24.2 and to rule otherwise. Hipp v. State, 293 Ga. 415, 746 S.E.2d 95 (2013).
Immunity properly found.
- Trial court properly held that the defendant, who was charged with family violence battery and simple battery under O.C.G.A. §§ 16-5-23.1(f) and16-5-23, was immune from prosecution under O.C.G.A. § 16-3-24.2. The testimony of the defendant's friend that the defendant restrained the friend after the friend broke the defendant's windshield and kicked a car seat, knocking the defendant into the steering wheel, provided some evidence that the defendant's actions were justified under O.C.G.A. § 16-3-21(a). State v. Yapo, 296 Ga. App. 158, 674 S.E.2d 44 (2009).
Trial court did not err by granting the defendant's motion for immunity from prosecution pursuant to O.C.G.A. § 16-3-24.2 because the court's determination that the defendant was immune from prosecution since the defendant acted in self-defense under O.C.G.A. § 16-3-21(a) in discharging the defendant's service weapon, although based upon conflicting evidence, was supported by a preponderance of the evidence; the trial court expressly adopted the factual findings that were made by the original trial judge in the judge's previous order denying the defendant's motion, and the original trial judge's error in assessing evidentiary conflicts in light of the judge's improper legal conclusion that the defendant was required to prove "as a matter of law" that the defendant was justified in killing the victim were corrected when the supreme court held that the proper standard of review was the preponderance of the evidence. State v. Bunn, 288 Ga. 20, 701 S.E.2d 138 (2010).
As the defendant showed a threat of force from the victim and reasonably believed that the defendant needed to defend oneself from a violent attack by the victim that could have caused the defendant great bodily injury, the defendant was justified in using deadly force against the victim to protect the defendant under O.C.G.A. § 16-3-21; consequently, the defendant was immune from prosecution under O.C.G.A. § 16-3-24.2. State v. Green, 289 Ga. 802, 716 S.E.2d 194 (2011).
Evidence was sufficient for the trial court to determine that the defendants met the defendants' burden of proving that the defendants were entitled to immunity from prosecution pursuant to O.C.G.A. § 16-3-24.2 because the defendants' testimony provided some evidence that the defendants' actions were justified, and the state chose to present no contrary testimony. State v. Cooper, 324 Ga. App. 32, 749 S.E.2d 35 (2013).
Motion to dismiss the indictment was properly granted as the defendant acted in self-defense in shooting the deceased and was thus immune from prosecution because the evidence showed that the defendant received a threatening voicemail from the deceased; at the time of the shooting, the defendant knew of three prior acts of violence committed by the deceased; on the morning of the shooting, the defendant was at the apartment of the defendant's mother when the defendant saw the deceased enter the doorway of the mother's apartment; the defendant repeatedly told the deceased not to come any closer, but the deceased nevertheless continued to proceed through the doorway; and the defendant then fired a weapon once, killing the deceased. State v. Sutton, 297 Ga. 222, 773 S.E.2d 222 (2015).
Trial court did not err in granting in part the defendant's motion to bar the prosecution on immunity grounds because the defendant presented sufficient evidence to carry the defendant's burden of proving the reasonableness of the defendant's belief in the necessity of deadly force with respect to the first victim because the first victim punched and choked the defendant, and threatened to kill the defendant; and the defendant's testimony, which was corroborated in part by the second victim, provided some evidence that the defendant's actions with respect to the first victim were justified. State v. Jennings, 337 Ga. App. 164, 786 S.E.2d 545 (2016).
Defendant's pretrial motion for immunity from prosecution based on the defendant's claim of self-defense was properly granted as there was evidence introduced at the motion hearing to support the ruling in favor of the defendant because, although it was error for the superior court to cite document number 17 as support for its findings, the superior court's consideration of that document was harmless as the superior court never cited that document in isolation but always in conjunction with specific citations to the transcript of testimony adduced at the motion hearing; and all of the information the court mentions as proving the defendant's credibility came most clearly from evidence at the hearing. State v. Ogunsuyi, 301 Ga. 281, 800 S.E.2d 542 (2017).
Defendant's motion to dismiss the charges against the defendant based on immunity from prosecution was properly granted because the alleged victim was the initial aggressor and the defendant used the defendant's car to protect the defendant as the defendant ran from the victim, got inside the car, and locked the doors; the victim stood in front of the hood of the car; the defendant tried to wave the victim off, but the victim refused to move; the defendant started the car and the victim then jumped on top of the hood; the defendant put the car into gear, but the victim did not get off the car; and the defendant proceeded to accelerate; however, there was no evidence the car was used in a way likely to cause death or great bodily harm. State v. Smith, 347 Ga. App. 289, 819 S.E.2d 87 (2018).
Evidence was sufficient for the trial court to determine that the defendant was entitled to immunity from prosecution for the aggravated assault charge against the victim because there was evidence in the record to support the trial court's finding that the victim was the first person to wield a gun and that the victim became aggressive with the gun, waiving the gun around and pointing the gun at the two men involved in the fight, as well as the trial court's conclusion that the defendant was justified in the belief that it was necessary to defend third parties against the victim's imminent use of unlawful force. State v. Jenkins, 355 Ga. App. 39, 840 S.E.2d 742 (2020).
Evidence supported the defendant's contention that the defendant shot the victim in self-defense; therefore, if the defendant's possession of a firearm at the shooting was justified under the rule created under O.C.G.A. §§ 16-3-21 and16-11-138, then it could not be said that the defendant was committing a felony when the defendant shot the victim, and the preclusive bar of § 16-3-21(b)(2) would not apply. However, the trial court needed to consider whether possession of the firearm before or after the shooting could be prosecuted. State v. Remy, 308 Ga. 296, 840 S.E.2d 385 (2020).
Order granting the defendant immunity was upheld because the evidence supported the determination that the use of deadly force against the ex-husband was justified based on the defendant's statements that the ex-husband had physically abused her for years and that he was attacking her at the time she shot him, the testimony of several witnesses about the ex-husband's routine and ongoing physical abuse of the defendant, and the ex-husband's threat to use deadly force on the night in question. State v. Hamilton, 308 Ga. 116, 839 S.E.2d 560 (2020).
Immunity improperly found.
- In a case in which the evidence showed that defendant, a convicted felon, used a firearm to shoot the deceased, a trial court erred in granting defendant's motion to quash the indictment under O.C.G.A. § 16-3-24.2. Since defendant possessed the firearm in violation of O.C.G.A. § 16-11-131, defendant was not entitled to the immunity offered by § 16-3-24.2 State v. Burks, 285 Ga. 781, 684 S.E.2d 269 (2009).
Because the trial court failed to consider O.C.G.A. § 16-3-21(a) when the court found that the defendant was immune from prosecution under O.C.G.A. § 16-3-24.2, the trial court used the wrong legal standard in reaching the court's decision; accordingly, the matter was remanded for further proceedings. State v. Green, 288 Ga. 1, 701 S.E.2d 151 (2010).
After the defendant was charged with aggravated assault and family-violence battery arising from a chokehold the defendant applied to the defendant's pregnant wife, the defendant's motion for immunity was improperly granted because the defendant and the victim were married at the time of the altercation, they lived in the house where the incident occurred together, the victim routinely took care of the parties' small dog, and the victim was entitled to handle the dog, including putting the dog out of the house; and the defendant reacted to the victim's struggling against the chokehold by tightening the defendant's grip, which was not justified as the victim was not committing a forcible felony against the dog. State v. Morgan, 346 Ga. App. 702, 814 S.E.2d 823 (2018).
There was no evidence to support the trial court's grant of immunity as to the charge of aggravated assault against the second victim because the undisputed evidence showed that the defendant initially shot at and hit the second victim, who was unarmed and standing 20 to 30 feet away from the first victim, who the defendant maintained was wielding the gun. State v. Jenkins, 355 Ga. App. 39, 840 S.E.2d 742 (2020).
Immunity motion properly denied.
- Trial court's apparent finding that defendant did not reasonably believe that the force defendant used was necessary to terminate a patron's entry into the restricted bakery area was supported by the patron's deposition testimony that defendant, without provocation, without warning that the bakery area was restricted, and without declaring the back door as off-limits, grabbed and struck the patron for no apparent reason other than perhaps believing that the patron was shoplifting food, despite defendant's admission that the patron had a receipt; although the trial court's ruling on defendant's immunity motion under O.C.G.A. § 16-3-24.2 was based on written deposition testimony, it could not be reviewed de novo, and as the trial court's ruling was supported by the patron's deposition testimony, the ruling had to be affirmed. Blazer v. State, 266 Ga. App. 743, 598 S.E.2d 338 (2004).
Trial court did not err in denying a defendant's motion for immunity under O.C.G.A. § 16-3-24.2 made by a police officer who fired at and killed a fleeing suspect who was alleged to have been involved in a car theft and/or a hit and run accident. State v. Thompson, 288 Ga. 165, 702 S.E.2d 198 (2010).
Denial of a defendant's pretrial motion for immunity, based on a claim of justification, was proper because the evidence showed that the shooting was motivated by gang rivalry and a desire for revenge, rather than self-defense. Sifuentes v. State, 293 Ga. 441, 746 S.E.2d 127 (2013).
Trial court's denial of immunity from prosecution based on defense of habitation was supported by a victim's testimony that the victims did not enter the defendant's home in a violent and tumultuous manner for the purposes of committing a felony therein, but were invited in by the defendant, who threatened and assaulted them. Inman v. State, 294 Ga. 650, 755 S.E.2d 752 (2014).
When the defendant was convicted of murder and other crimes in connection with the fatal stabbing of the victim, the defendant's motion for immunity from prosecution was properly denied because, although the trial judge did not reference the judicial standard or explicitly state that the trial judge had weighed the evidence at the hearing on the immunity motion, the trial judge later clarified that the trial judge had weighed the evidence during the immunity hearing and determined not only that the defendant failed to show that the defendant was entitled to immunity by a preponderance of the evidence but that it appeared more likely than not that the defendant was not acting in self-defense when the defendant killed the victim. Cotton v. State, 297 Ga. 257, 773 S.E.2d 242 (2015).
Trial court did not err in denying the defendant's pre-trial motion for immunity based on self-defense as the court weighed the defendant's account of the shooting against the medical examiner's testimony that the victim had been shot in the back from a distance of at least 18 inches away, the testimony of the victim's friend that the defendant pointed a gun at the friend and refused to call 911, and the defendant's own admission that the defendant did not render aid or summon medical assistance. Lowe v. State, 298 Ga. 810, 783 S.E.2d 111 (2016).
Given the undisputed evidence that the defendant did not possess a weapons carry license and was thus in violation of O.C.G.A. § 16-11-126 insofar as the defendant was carrying a weapon without such license in a place other than the defendant's own property, vehicle, or business, the trial court did not err in denying the defendant's claim to immunity. Amos v. State, 298 Ga. 804, 783 S.E.2d 900 (2016).
Defendant failed to show that the defendant was entitled to immunity as the defendant did not show by a preponderance of the evidence that the defendant reasonably believed that the defendant was in imminent danger of being subjected to unlawful force when the defendant shot the victim because, although the defendant testified that the defendant shot the victim only after the victim grabbed a gun from the victim's car, two guests at the gathering in the defendant's front yard testified that the guests never saw the victim with a gun; and the jury was authorized to reject the defendant's claim that the victim was the aggressor and to conclude that the defendant did not reasonably believe that it was necessary to shoot the victim in self-defense. Arnold v. State, 302 Ga. 129, 805 S.E.2d 94 (2017).
Defendant was not immune from prosecution based on self-defense because, even if the victim lunged at the defendant, the defendant was not entitled to slam the victim onto a concrete sidewalk and then punch the victim multiple times with enough force to cause the significant facial injuries and brain damage that led to the victim's death; and the defendant never told the police that the defendant thought the victim might have had a large knife when the victim lunged at the defendant. Gardhigh v. State, Ga. , 844 S.E.2d 821 (2020).
Denial of immunity improper.
- Evidence was sufficient for the trial court to determine that the defendant met the burden of proving that the defendant was entitled to immunity from prosecution as there was some evidence to support the trial court's finding that the suspect was physically resisting being handcuffed and detained by the defendant, and that the defendant's application of the arm bar technique as a defensive measure to bring the suspect to the ground and handcuff the suspect was reasonable and proportionate. State v. Hall, 339 Ga. App. 237, 793 S.E.2d 522 (2016).
Trial court was authorized to find that the appellant failed before, during, and after trial to meet the burden of showing that the appellant was entitled to immunity under O.C.G.A. § 16-3-24.2 because the statements-in-place by the appellant's lawyer were not a proper substitute for evidence at the hearing on the motion for immunity because the state did not accept those proffers but rather insisted that the appellant prove the appellant's immunity with traditional evidence. Anthony v. State, 298 Ga. 827, 785 S.E.2d 277 (2016).
Immunity from prosecution did not apply when executing no-knock warrant.
- In a capital murder case involving the shooting death of a deputy while executing a no-knock warrant with other officers involved in a drug task force, the immunity from prosecution prescribed by O.C.G.A. § 16-3-24.2 did not apply to the defendants because the officers' entry was lawful. Fair v. State, 288 Ga. 244, 702 S.E.2d 420 (2010).
Counsel not ineffective for failing to file motion for immunity from prosecution.
- Counsel was not ineffective for failing to file a pretrial motion for immunity from prosecution based on the defendant's claim of self-defense because trial counsel testified that it was a strategic decision not to file such a motion inasmuch as counsel did not want to expose the defendant to pre-trial cross-examination from the state, thereby previewing the defendant's anticipated trial testimony, and that counsel chose to attempt to demonstrate self-defense to the jury, as opposed to the judge. Dent v. State, 303 Ga. 110, 810 S.E.2d 527 (2018).
Trial counsel testified that counsel did not believe an immunity motion based on self-defense would have been successful as there was insufficient evidence of self-defense, including that the victim was unarmed; the trial court likewise found that a pretrial immunity motion would have lacked merit. Trial counsel was not deficient for failing to file such a motion. Mathis v. State, Ga. , 844 S.E.2d 736 (2020).
Counsel not ineffective in allowing defendant to testify at immunity hearing.
- Counsel was not unreasonable in allowing the defendant to testify under oath at a pretrial immunity hearing; the defendant's claim of immunity was supported by the defendant's own testimony that the defendant acted in self-defense or defense of habitation (the defendant's van) at the time that the defendant shot the victim. It was not unreasonable for counsel to support the defendant in the defendant's desire to testify at the immunity hearing in order to provide this evidence. Newman v. State, Ga. , 844 S.E.2d 775 (2020).
Trial counsel was not ineffective for failing to file a pretrial motion for immunity from prosecution based on self-defense as counsel would not have been able to show by a preponderance of the evidence that the defendant acted in self-defense because the evidence contradicting the defendant's claim of self-defense was overwhelming as the evidence presented at trial showed that, after the defendant brutally beat the victim to death with a hammer and then attempted to conceal the body and other evidence, the defendant admitted to the police that the victim had not had a weapon and had not threatened the defendant. Velasco v. State, 306 Ga. 888, 834 S.E.2d 21 (2019).
Appeal from finding of immunity from prosecution.
- Because O.C.G.A. § 5-7-1(a)(1) provides that the state may appeal an order dismissing "any count" of the indictment, the trial court's order that in effect dismissed two of the three counts by finding that the defendant was immune from prosecution under O.C.G.A. § 16-3-24.2 was appealable. State v. Yapo, 296 Ga. App. 158, 674 S.E.2d 44 (2009).
Appeal from order denying motion to dismiss indictment was dismissed.
- Because the trial court's order denying the defendant's motion to dismiss an indictment on immunity grounds under O.C.G.A. § 16-3-24.2 was not a final appealable order, the criminal matter was still pending below, and no other reason under O.C.G.A. § 5-6-34 was presented allowing an appeal from the same, the defendant's appeal was dismissed. Crane v. State, 281 Ga. 635, 641 S.E.2d 795 (2007).
Cited in Smith v. State, 309 Ga. App. 241, 709 S.E.2d 823 (2011).