Laws and Procedures

Gun Show Loophole?

I do not intend for this piece to be a pathway into a debate on gun control or any of the applicable laws pertaining firearms sales. I am simply attempting to clarify the actual legal framework involved in a firearms sale. This piece is in response to a political commercial currently running on several of the cable news channels.

The commercial shows snippets of a terrorist asserting that people can simply walk into a gun show and buy fully automatic weapons without any sort of background check. The commercial is sponsored by a group of mayors, and it urges people to contact their congressmen concerning closing the so called gun show loophole.

The simple truth is that those claims are absolutely and totally false. Licensed firearms dealers must follow the exact same rules for selling a firearm at a gun show as they must follow when selling a firearm from their place of business. This is required by federal law, and such sales are regulated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives more commonly known as the ATF. Additionally, state laws regulating the sale of firearms must be followed at a gun show just as they are at a retail firearms shop.

Furthermore, fully automatic and select-fire firearms are Class III items, and as such, they are even more stringently regulated by the federal government and other applicable state laws. In order to purchase a Class III item, a person must be approved by the ATF prior to buying the item, and each item purchased requires specific approval. Part of that approval process includes either the signature of the chief law enforcement officer of the locality where the purchaser resides or the establishment of a legal trust. The process is very time consuming, and each item also incurs an additional $200.00 federal tax. The purchase process of a Class III item is measured in months and not minutes.  Private parties may not sell Class III items directly to another party. The transaction must go through a dealer approved by the federal government to handle Class III items.

The notion that someone can walk into a gun show and simply buy a fully automatic weapon is ludicrous to the point that the person espousing such is either ignorant on the law and is merely parroting remarks made by others, or the person is knowingly and intentionally perpetuating a lie.

Sales between private parties at gun shows are governed by the same state laws and applicable federal laws that apply to a private party transaction elsewhere in the respective state.

The gun show loophole does not exist.

Again, this piece was not intended as a pathway to a debate on gun control. Its intent is to provide accurate information.  This piece is not an argument in favor of or against control measures.

Notes on Speed Detection

Governor Lester Maddox was a professed segregationist who sold his Pickrick Cafeteria rather than serve black customers, but even he drew the line at speed traps. The town of Ludowici, Georgia, had become so notorious for operating a speed trap that Governor Maddox had billboards erected to the north and south of the town warning passing motorists to be wary of speed traps and clip joints, and he assigned state troopers to guard the signs. This was even covered by Time magazine.

You would think that speed enforcement would be an easy feat to accomplish. It seems pretty simple to assign a peace officer to go sit along a stretch of roadway with a speed detection device with that officer stopping and citing motorist that come along in excess of the speed limit. Well, as with most things government related, common sense and actual reality rarely meet, and this is no exception. There is one law that deals with the actual offense of speeding (40-6-181 O.C.G.A.). However, there are 17 separate state laws that deal with the operation of speed detection devices. If you are a student of history, you know that Lester Maddox was Governor of Georgia from 1967 through 1971. Most of these 17 code sections date back to 1968.

Among some of the requirements in the aforementioned state laws are the requirement for warning signs, visibility of the officer’s vehicle to approaching motorist, rules about where such devices may be used, testing devices for accuracy, etc, but perhaps the one that astounds the general public the most is a requirement that a county, city, or college/university agency have a permit from the state to operate speed detection devices. This permit does not give blanket authority to conduct speed detection throughout the agency’s jurisdiction. Specific streets must be listed on the permit along with their approved speed limit. If the speed limit is changed on a road, the permit for that stretch of road is rendered null and void until the process to have it changed on the speed permit is completed or the speed limit is put back to the limit listed on the permit. The speed permit comes up for renewal every three years, and making changes or additions to it is a very, very tedious process. Operating a speed detection device without the appropriate permit is a misdemeanor offense. The permit requirement does not apply to the Georgia State Patrol.

The requirements for operating speed detection equipment are found in 40-14-1 through 40-14-17 O.C.G.A. You can find the code sections online by clicking here.

I took a class a few years ago taught by a retired precinct commander from the Phoenix (AZ) Police Department. He told a story about taking over a precinct that had experienced numerous murders in the months preceding his getting the assignment. Keep in mind that Phoenix is broken up into eight precincts; so, this was multiple murders in just one precinct of the city in a short amount of time. The Commander told us that he met with community organizations upon taking over the precinct. The number one concern expressed to him was not the high murder rate. Each and every one of the community organizations wanted to know what he was going to do about speeding in their neighborhood.

The point of that story was to point out that speeding is a universal concern. We get more complaints about speeding than anything else, and I expect that a poll of agencies across the country would report likewise. The problem is, provided we have jumped all of the state’s hurdles to get a permit and your neighborhood is on the permit, that we really only have one tool to deal with speeders, and that is to write citations. If we come to an area to enforce the speed limits, we are going to catch people speeding, and this includes your spouse, your children, your neighbors, and maybe even you.

We would rather that people voluntary comply with the speed limits because when all you have is a hammer, everything starts to look like a nail. On the weekend of the first UGA game this year, three of our deputies set up a big, flashing sign warning that speed limits were being strictly enforced. Those three deputies then wrote 80 citations in six and a half hours with none of the citations being for less than 15 miles per hour over the limit including one written for 99 miles per hour in a 55 mile per hour zone.

Miranda: A Real Fiction

Alphabetically-ordered seating in school generally meant that I had a seat in the back of the room, but that left me free to do as I pleased for the most part; however, the elevated platform used by Mrs. Carol Thomas negated that advantage, and I actually paid attention in her seventh grade civics class. Among the many of her lessons that I remember was the lesson on the Bill of Rights: the first ten amendments to the Constitution enumerating such things as the right to counsel, the right not to be a witness against oneself, the right to due process, and the freedom from unreasonable searches and seizures as well as cruel and unusual punishment. The Bill of Rights was ratified in 1791. They aren’t exactly a secret.

In 1966 the nine wise souls of the Supreme Court of the United States (SCOTUS) voted in a 5-4 decision in the case of Miranda v. Arizona, 384 U.S. 436 (1966), to require peace officers to read what is now commonly known as the Miranda warning to suspects in custody prior to questioning. However, as Messrs Harlan and White pointed out in their dissenting opinions there is no requirement in the text of the Constitution that requires such a warning. The requirement to do so is purely a creation of the court. I repeat, there is nothing in the Constitution that places any requirement whatsoever on the government or its agents to formally advise people of all said rights. The Constitution itself does that, and it did so 175 years prior to the Court’s creation of a real fiction.

Please note that I am by no means arguing against these rights as such a presumption would be false. I’m just pointing out that all the Court did in Miranda was create a procedural step that has spawned four decades worth of court cases. Earlier this year, SCOTUS handed down its decision in Berghuis v. Thompkins (docket 08-1470). In this decision, the Court held that individuals must explicitly invoke their right to silence. Headlines and talking heads have proclaimed this decision as “turning back the clock” on legal protections and as “trimming Miranda rights”. Well, this is just a nit that I have to pick. Miranda didn’t and doesn’t grant or guarantee rights. It’s the United States Constitution that enumerates our rights. Again, the Court with Miranda created nothing but a procedural hoop through which to jump. Even without said warning, the rights are still there and can still be invoked by the individual. If the SCOTUS wiped out Miranda completely, those rights would still exist.

Notes:

-Noted civil rights attorney Thurgood Marshall argued the case on behalf of the government, thus he argued against the Miranda procedure. Marhsall, who later become a SCOTUS Justice, was the lawyer who successfully argued in Brown v. Board of Education, 347 U.S. 483 (1954), against the “separate but equal” policy that allowed racial segregation in schools.

-The defendant in this case, Ernesto Miranda, was convicted of burglary while in high school. He served time on numerous offenses and was later dishonorably discharged from the Army after repeated AWOL and peeping tom offenses for which he also served time in a military stockade. In the case in question, he was arrested, confessed to, was positively identified by the victim, and was later convicted of the rape and robbery of an 18 year old girl (he couldn’t be positively linked to other victims abducted and raped from the same area). A warning very similar to the wording created by Miranda was printed on each page on which he wrote his confession. After SCOTUS overturned his conviction, he was re-tried without his confession being entered into evidence. He was convicted and sentenced to over 20 years in prison but was paroled a few short years later after which he made money by selling autographed Miranda cards. He was killed in a bar fight in 1976.

–Miranda is often misunderstood. A suspect must be both in custody and being asked investigatory questions before it is required. Other than that, a peace officer may ask any question they so choose to anyone not in custody. Also, a peace officer with probable cause may make an arrest and never ask any questions of the suspect thus never crossing the threshold of Miranda being applicable.

Yielding to Emergency Vehicles

The tragic death of a not quite two-year-old child on the Georgia 10 Loop has spurred a considerable amount of discussion locally concerning what a driver should do when approached by an emergency vehicle operating in emergency mode.

Georgia law addresses this issue in 40-6-74 O.C.G.A. stating:

“(a) Upon the immediate approach of an authorized emergency vehicle or a vehicle belonging to a federal, state, or local law enforcement agency making use of an audible signal and visual signals meeting the requirements of Code Section 40-6-6, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle or law enforcement vehicle has passed, except when otherwise directed by a police officer.

(b) This Code section shall not operate to relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.”

At the time that I write this, the wreck is still under review; so, I will not get into specifics of the investigation, and I do not intend this piece to be a criticism of any of the parties involved. I am simply attempting to address the issue in hopes that it will prevent similar occurrences. The general facts of the case are that an ambulance was en route to a call and was traveling on the Georgia 10 Loop, a four-lane divided highway that forms a perimeter route around Athens and passes through Clarke and Oconee Counties. Upon seeing the ambulance, a driver stopped in the roadway and was struck from behind by a pickup truck. A third vehicle was also struck during the collision. The above facts are sufficient for the purposes of this discussion, and I will not delve into the other issues arising from this tragedy at this time.

Pulling to the right and stopping sounds simple, and under ideal conditions it would be easy to achieve; however, ideal conditions would preclude the need for emergency response in the first place. Traffic congestion may not allow for a driver to move immediately to the right and stop. Other mitigating but certainly not alleviating factors are that vehicle manufacturers are producing vehicles that virtually shut out road noise, and the market is burgeoning with communication and media devices that often get used within vehicles creating more distractions. It is not uncommon at highway speeds for the sound of the siren and the emergency vehicle to “arrive” at virtually the same time thus not allowing for much reaction time on the part of drivers. This is why it is important for the drivers of emergency vehicles to not look upon the lights and sirens as creating a magic bubble that will give them instant right of way and a clear path to their call.

Pulling to the right as soon as practicable and stopping until the emergency vehicle passes is the preferred and expected response. Simply pulling to the right and continuing may prevent the emergency vehicle operator from being able to make a right hand turn. If you stop and allow it pass prior to continuing, it should allow enough time and space for the emergency vehicle to make any necessary maneuvers.

 

 

DUI Info: Part II

In this post, I tried to provide a basic understanding of a DUI incident.  In Part II, I will focus specifically on the voluntary field sobriety evaluations.

Please note that I referred to them as both as voluntary and as evaluations.  By voluntary I mean just that.  A driver has no obligation to perform the evaluations.  Failure to do so is not an indicator of intoxication.  In fact, some people will not be able to do them due to medical screening issues built into the evaluations.  As for the term evaluations, they are commonly termed as “tests”, but this is not accurate as “tests” indicates that they are on a pass/fail basis, which is not correct.  They are an evaluation tool that allows the peace officer to make a determination based on the totality of the circumstances.

The actual correct term for the evaluations is Standardized Field Sobriety Evaluations (SFSE) with emphasis on the “standardized”. The evaluations, at least the standardized version of them, are scientifically proven and accepted. They should be completed in the prescribed order. There are only three SFSEs. They are the Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. Any evaluation used other than those three are non-standard. A peace officer must successfully complete a training course to be certified to conduct the standardized evaluations.

Nystagmus is an involuntary jittery or twitching eye movement. While some nystagmus may be natural, it is readily induced by alcoholic beverages and some drugs. As it is not a voluntary movement, it is not able to be controlled by the individual; so, it is a very telling evaluation. It does require several medical screenings for the evaluation to be valid. For instance, a person who does not have equal pupil size or their eyes do not track equally is medically screened out from participating in this evaluation. Nystagmus is checked for by passing a stimulus back and forth at a distance of 12 to 18 inches from the eyes. The first several passes are to conduct the medical screenings. The rest are to check for smooth pursuit, nystagmus at maximum deviation, and the onset of nystagmus at prior to a 45 degree angle of the eyes. As for smooth pursuit, the eyes should smoothly follow the stimulus as it moves back and forth and not exhibit jerking movements, which are an indicator of intoxication. As for maximum deviation, an intoxicated person is likely to show sustained and distinct nystagmus as the stimulus is held at the furthest point of the back and forth passing of the stimulus. Finally, the onset of nystagmus prior to the eyes reaching a 45 degree angle when following the stimulus. Vertical nystagmus is also checked, but vertical nystagmus is not an indicator of drugs as is commonly believed. It is an indicator of a high intoxicant level for the particular person.  Training for what to look for in the eyes is conducted through the use of videos of the eyes of people at various intoxication levels.  The use of live drinkers is now discouraged for this training.

The Walk and Turn evaluation is an evaluation of both a person’s ability to follow directions as well as their ability to walk in a straight line and maintain their balance. Obviously, there are medical conditions that could prevent a person from being able to complete this evaluation; so, it is important for the officer to ask good screening questions. The exercise should be demonstrated by the officer prior to the driver participating. Of note here, I have bad ankles due to a chronic medical condition as well as an injured knee. Prior to demonstrating this evaluation, I always informed/inform the driver of this so that they had a better perspective of the evaluation and the physical ability needed to do complete it. This evaluation involves the participant beginning from a prescribed position, taking nine steps touching heel to toe with each step, turning in a prescribed and demonstrated manner, and then taking nine heel to toe steps back to the starting point. The line walked should be straight with the participant’s arms by their side and with their eyes watching their feet as they walk. The officer is looking to see if the driver steps off line, fails to touch heel to toe with each step, and whether or not the driver raises their arms from their side to maintain their balance.

The One Leg Stand evaluation involves the driver raising one foot approximately six inches off of the ground and with the toe pointed. Their arms should be at their side, their support leg should be locked at the knee, and their eyes should be focused on the toe of their extended foot. Like the Walk and Turn, there are medical/physical conditions that could legitimately prevent a person from being able to participate in the evaluation. In this evaluation, the officer watches to see if the driver is able to maintain their balance without hopping or swaying and without touching their foot back to the ground.

The above are the standardized evaluations and they should be completed in the order as described. There is no pass/fail point at which a person is declared intoxicated to the point of being DUI or not. The officer makes a determination based upon everything observed during the contact to include slurred speech, the odor of an alcoholic beverage on the driver’s breath, and their coherence, appearance and demeanor. Again, they are completely voluntary. If a driver chooses not to participate, the peace officer must make a determination at that point whether or not to proceed with an arrest. I do not have statistics to reflect any specific percentage as to how many times I made an arrest after conducting the exercises versus letting a person go. The latter category would be the higher percentage.

There are many non-standard evaluations that can also be used. There is a myth that just will not be put to rest when it comes to one of these. Whether or not a person can say the alphabet backwards is not an indicator of intoxication. I do not know how many times when asking a person if they would participate in voluntary SFSEs tell me that they would do so but they wanted to let me know up front that they could not say the alphabet backwards. I usually try to keep a straight face and say something along the lines of, “Okay, we’ll skip that one then.” I did/do commonly ask people to say (not sing) the alphabet. I never had a person mess up the alphabet that did not provide a considerably high blood alcohol content sample. Of course, in order for this evaluation to have any merit, it must be established that the person in question knows the alphabet. I did have one occasion when a Columbian national stated that he did not know the alphabet in English. I hope that Mrs. Bailey would be proud to know that many years after high school Spanish class that I still remembered the Spanish alphabet and was able to complete the evaluation.

Click here to see a form that we use when conducting SFSEs to help ensure that the evaluations are done correctly.  It accompanies a DUI arrest report.

I hope that the above helped provide you with a clearer picture of field sobriety evaluations.  It is a difficult topic to tackle without getting into the minutia of the details, and some aspects of the topic just do not easily translate into text.

Open and Concealed Carry Allowed with GWL

While in common parlance people often refer to the Georgia Weapons License (GWL), previously the Georgia Firearms License, as a concealed carry permit, this term is a misnomer. Even one of the co-sponsors of the recent Senate Bill 308 that clarified Georgia’s carry laws referred to the GWL as a concealed carry permit in a campaign mailer that turned up in my mailbox yesterday.

The fact remains that nothing in Georgia’s carry laws require that a firearm be carried concealed. The two code sections of relevance here are 16-11-126 O.C.G.A., Carrying a concealed weapon, and 16-11-128 O.C.G.A., Carrying a pistol without a license. The first code section makes it illegal to carry a concealed weapon unless a person has a GWL. The second code section makes it illegal to carry a weapon outside of one’s home and business (see code for full list of exceptions) without a GWL whether the weapon may be carried openly or concealed. Just to make sure that it is clear, the carrying of a weapon outside of those specific exceptions requires a GWL. Carrying openly requires the license, but having the license does not require that a firearm or weapon be concealed.

Nothing in the above should be construed as an argument in favor of openly carrying a weapon. I am simply seeking to clarify the law. The decision to carry openly, concealed, or at all is up to the individual.

DUI Info

I get a lot of questions concerning DUI laws in Georgia, and there seems to be a lot of misconceptions concerning such cases; so, I prepared the following information piece. I have tried to cite statutory and case law when possible while mixing in some my personal experiences and understanding. This is not intended to be a comprehensive document.

Intro (See 40-6-391 and 40-6-392 OCGA):

Georgia DUI law allows for two types of DUI charges to be made. The first type is per se, which is a term that means “in and of itself”. In other words, it is a level of intoxication at which the law presumes that a driver is intoxicated to the point that they are unsafe to operate a vehicle. There are several different levels of per se. For a driver over the age of 21 and not operating a commercial vehicle, the per se level is .08. For a driver under the age of 21 and not operating a commercial vehicle, the per se level is .02. For a driver operating a commercial vehicle, the per se level is .04.

The second type of DUI charge that can be made is a “less safe” case. A less safe case can be made when the person is under the influence to the point where they are less safe to drive. There are no specific presumptions based on blood alcohol content (BAC) in a less safe case. The case is upon the observations of the arresting officer from everything from the suspect’s driving, to their demeanor during the contact, to field sobriety exercises. This type of arrest must be articulated by the officer.

DUI cases can be made for those driving under the influence of drugs as well. Please note that DUI of drugs is not limited to illegal drugs. A person can be DUI from legally prescribed drugs just as if they had been smoking marijuana.

The stop:

An officer may make a stop based upon reasonable suspicion or probable cause. As they relate to DUI/traffic stops, a probable cause stop is when an officer observes an actual violation of the law such as a moving violation or an equipment violation. A reasonable suspicion stop is when an officer observes a pattern of driving that indicates that a driver may be intoxicated, and an officer may make a stop to investigate (think Terry). Once an officer has dispelled intoxication, the stop must end unless the officer has developed other probable cause of a crime.

Weaving. Often times a driver or an officer will use the terminology of stopped for “weaving”. Weaving has two different meanings; so, clarification is in order. Weaving to some people means weaving back and forth within a lane of travel. This is not illegal; however, it can be a basis for a reasonable suspicion stop depending upon the extent of the weaving. This is something that an officer experienced in DUI enforcement can learn to recognize and is not simply the normal slight back and forth pattern that even a sober person will do within a lane. The other weaving is actually “failure to maintain” a lane of travel (see 40-6-48 OCGA). This is when a driver actually crosses over the lane dividing line or the fog line. This IS illegal and is basis for a probable cause stop. Obviously, people do this and are not intoxicated, but it is a legally sufficient reason to make a stop and can result in a ticket purely on its own.

Obviously, some violations are more indicative of DUI than others, and the violations in and of themselves should not be the sole basis for a DUI charge.

Contact:

After the officer initiates the stop, he or she will make contact with the driver. Everything about the driver is being observed from eyes, speech, dexterity, comprehension and everything else. I’ve had people hand me credit cards, student IDs, and all sorts of other things when I asked for their driver’s license, for example. An officer should be paying attention for the odor of alcoholic beverages as well. The odor alone is not purely indicative of a DUI driver. A drink could have been spilled on the driver. Other occupants in the vehicle may have been drinking, and the driver may have had some alcohol, but some consumption does not automatically mean intoxication.

Field Sobriety:

Now for one of my pet peeves: These are often referred to as field sobriety tests. The term “tests” indicates a pass or fail line, and this is not the case. They should be properly termed as Voluntary Field Sobriety Exercises (VFSE or FSE). The VFSEs are a “totality of circumstances” tool for evaluation and are not a bright line pass or fail test. They are entirely voluntary. Whether or not to participate is up to the driver. My response when asked what would happen if the driver declined to participate was that I would make my decision based upon my observations to that point, and this statement was/is entirely accurate. Obviously, a person that is all over the roadway, is stammering or with slurred speech, has glassy and or bloodshot eyes, and can barely stand is more likely to get arrested than the person who slow rolled a stop sign but doesn’t “seem” plastered.

The portable breath test is NOT the state’s test of a driver’s breath. The PBT can only be used to show positive for alcohol. The actual numerical reading is not admissible in Georgia at this time, but there is a company producing a PBT that can be calibrated and has been accepted in other states. The PBT is completely voluntary.

Implied Consent (40-5-55 and 40-5-67.1 OCGA):

If the officer makes an arrest, Implied Consent comes into play. At that time (after the arrest has been made) the appropriate Implied Consent notice is read. The state can seek test(s) of the driver’s blood, breath, urine or other bodily substances. If a driver refuses the test(s) their license may be suspended for one year. After submitting to the state’s test(s), the driver is entitled to their own test(s) at their own expense and from qualified personnel. The officer must facilitate this within reason. The “within reason” part of that has been the subject of much case law.

If a driver refuses the test(s) or provides a per se sample, the officer should issue a 1205 form. This form grants a 30 day permit to drive, and the driver has a right to a hearing on the license suspension. If the driver does not provide a per se or results are pending, a 180 day sticker is placed on the DUI citation. If results later come in as per se, a 1205S form is completed starting the license suspension process.

Please note that failure to submit to each of the requested test(s) is a refusal. If asked for blood and breath and a driver only submits to blood the driver can still be considered a refusal on breath portion.

Closing thoughts:

I always seek to build a less safe case. If I don’t have a less safe case, I don’t make the arrest. The actual test(s) results were just basically an afterthought. I never had an arrest were test(s) results were obtained that did not go per se.

Once again, this isn’t comprehensive. It is merely to give a better understanding of DUI law and procedure in Georgia.

The Lawful Use of Force

Code section 16-3-21 of the Official Code of Georgia Annotated (O.C.G.A.) is the law that covers the use of deadly force for ALL people in Georgia. This law applies to citizens and peace officers alike. A good working definition of deadly is force that force which is likely to or intended to cause death or great bodily harm to a person.

The law allows for the use of deadly force in three situations. The first of these is to prevent death a great bodily harm to oneself. The second is to prevent death or great bodily harm to a third person, and third, to stop/prevent the commission of a forcible felony. A forcible felony is any felony that involves the threat or actual use of force against a person. See below:

16-3-21. Use of force in defense of self or others; evidence of belief that force was necessary in murder or manslaughter prosecution

(a) 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.
(b) A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he:
(1) Initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant;
(2) Is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or
(3) Was the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.
(c) Any rule, regulation, or policy of any agency of the state or any ordinance, resolution, rule, regulation, or policy of any county, municipality, or other political subdivision of the state which is in conflict with this Code section shall be null, void, and of no force and effect.
(d) In a prosecution for murder or manslaughter, if a defendant raises as a defense a justification provided by subsection (a) of this Code section, the defendant, in order to establish the defendant’s reasonable belief that the use of force or deadly force was immediately necessary, may be permitted to offer:
(1) Relevant evidence that the defendant had been the victim of acts of family violence or child abuse committed by the deceased, as such acts are described in Code Sections 19- 13-1 and 19-15-1, respectively; and
(2) Relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to the family violence or child abuse that are the bases of the expert’s opinion.

Please note that nowhere in the above three instances was the defense of property or animals listed. As much as you might like to do so, you cannot use deadly force to shoot someone that is stealing or damaging property or stealing or harming an animal. You may legally, according to 16-3-24 O.C.G.A. us force that is NOT likely or intended to cause death or great bodily harm. See below:

16-3-24. Use of force in defense of property other than a habitation

(a) 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.
(b) 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.

The question often comes up concerns if it is legal to shoot a person that is breaking into your home. This is usually followed by “should I drag him inside after I shoot him?” The answer to the first question is found in code section 16-3-23 O.C.G.A., which reads as follows:

16-3-23. Use of force in 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) 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.

The answer to the second part of the question is most definitely no. You most certainly should not drag the body or alter the physical evidence in any way.It is also important to note that according to 16-3-23.1 O.C.G.A., a person using or threatening force in the code sections outlined above has no duty for a person to retreat and legally has the right to stand their ground. See below:

16-3-23.1. No duty to retreat prior to use of force in self-defense

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.

When it comes to deadly force, we teach peace officers to evaluate potential deadly force situations using the three step guideline of ability, opportunity, and jeopardy. Ability is whether or not a person actually has the means or tools to inflict death or great bodily harm. This could be the person possessing a weapon or even their sheer physical size, for example. Opportunity would be whether or not the person was in position to actually be threat. A person possessing a knife certainly possesses the ability to cause death or great bodily harm; however, if that person is in close proximity they certainly have the opportunity, but if that person is on the other side of a four lane highway, they are not in a position to where they could actually use the knife to cause harm. Finally, jeopardy would be whether or not there was actual reason to believe the person was a threat. Just because a person has ability and opportunity does not mean they are a threat. Keep in mind that the aforementioned labels also apply to a person legally carrying a firearm. The key consideration is whether or not the person in question is behaving in a manner that would cause a person to be in reasonable fear for their life.

Hopefully, you will never be confronted with a situation in which you have to make the decision of whether or not to use such force much less actually having to use it; however, if you do, I hope that you have a better understanding of the legal parameters for doing so.

The decision to use force is an intensely personal decision. The key question is justification, not the moment in time at which one would actually use such force. It hinges on what the individual perceives and can articulate and this can depend on many factors including experience and training.

Family Violence Act Explained

First, to clear up a common misconception, there is no criminal charge of “Family Violence” in the state of Georgia. The Family Violence Act, 19-13-1 O.C.G.A., provides a list of relationships and crimes that if present in combination constitutes family violence. Of key importance in understanding the Family Violence Act is that if a peace officer has probable cause to conclude that one of the included crimes was committed involving parties of one of the included relationships, the peace officer is required by law to make an arrest. Again, the peace officer must make the arrest. It is not optional. Furthermore, the victim in the crime cannot drop the charges. This does not mean that the prosecutor must prosecute the case. It simply means that the decision of whether or not to prosecute does not belong to the victim.

The relationships listed in the act are past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, and other persons living or formerly living in the same household. These relationships once established last forever as it concerns

The included crimes are as follows: any felony, battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint (false imprisonment and kidnapping), and criminal trespass. Reasonable corporal punishment is not a crime.

The property of a married couple is community property in the eyes of the law. If during a domestic dispute one part or a married couple intentionally destroys their own property it is considered a crime (criminal trespass/criminal damage to property). Yes, destroying your own property during a domestic dispute is a crime, and as stated above, a peace office is required to make an arrest if probable cause exists.