Claiming Self-Defense as Justification in Georgia Criminal Cases
Self-defense has been a big topic of conversation lately. After the verdict in Kenosha, Wisconsin in the Kyle Rittenhouse case and closing arguments set to begin this morning in the case against the McMichaels and Mr. Bryan in Brunswick, Georgia, I believe it is important to talk about Georgia’s self-defense law. Georgia law provides that if a person’s conduct is justified, that justification is a complete defense to any prosecution based on that conduct. That means if a judge or jury in deciding their case finds that their conduct is justified, they cannot be found guilty of the crime(s) they have been alleged to commit through that specific conduct. Justified conduct cannot be applied in every criminal situation. But Georgia law does expressly highlight ten situations where justification can be claimed as a complete defense under Georgia law.
Six Situations where Justification can be Claimed as a Defense in Georgia
Use of force in defense of self or others
Use of force in defense of habitation (home)
Use of force in defense of property
Entrapment
Coercion
When the person is in reasonable fulfillment of their duties as a government employee or officer
When the person is in the process of reasonable discipline of their minor child as parent or guardian
When the person is in the process of making a lawful arrest and their conduct is reasonable
When the person is in the process of rendering emergency care and their conduct is reasonable
And finally, Georgia law has a catch all provision which states: “In all other instances which stand upon the same footing of reason and justice as those enumerated in this article.” O.C.G.A. 16-3-20.
Use of Force in Defense of Self or Others
Today we are going to be focusing on O.C.G.A. 16-3-21, the statute which defines using self-defense in defense of self or others as justification against criminal prosecution for conduct alleged to be criminal in the state of Georgia. O.C.G.A. 16-3-21 states:
“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.”
Under the language of this statute, it is clear that you can use force if you have a reasonable belief that the use of force is necessary to defend yourself from someone else’s use or threat of use of unlawful force. This can rise to the level of deadly force if you need to use that force to prevent death or great bodily injury to yourself or others. The question of reasonableness in these situations is a question for the trier of fact, which would be judge or jury depending on specific circumstances of your case.
Limitations to the Use of Self-Defense under Georgia Law
There are three circumstances where the claim of self-defense cannot be used as a complete defense to prosecution. Those circumstances are:
If you initially provoke the use of force against with the intent to use such force as an excuse to inflict bodily harm upon the assailant, you cannot claim self-defense.
If you are attempting to commit, committing, or fleeing after the commission or attempted commission of a felony, you cannot claim self-defense.
You are the aggressor in an altercation or you were engaged in mutual combat by agreement unless you withdraw from combat by announcement and the other party continues to threaten or use force against you, you cannot claim self-defense.
Self-Defense as an Affirmative Defense under Georgia Law
Self-Defense is an affirmative defense under Georgia law, meaning that self-defense must be raised by the Defendant and his attorney and the Defendant must testify to their use of self-defense. Defendant’s testimony must show they were justified in using force and that they reasonably believed there was a threat of imminent force was going to be used against them. While the defendant has to have a reasonable belief of force being used against them, that belief has to not only be reasonable to them but reasonable to an average person.
Pre-Trial Immunity Claim vs. Self-Defense at Trial
A defendant who makes a pre-trial claim of immunity for prosecution by self-defense bears the burden of proof that they are entitled to immunity from prosecution. The standard for determining pre-trial immunity is a preponderance of the evidence standard. At trial, the burden shifts from the defendant to the State. If the defendant produces evidence at trial of self-defense, it becomes the State of Georgia prosecutor’s burden to disprove the claim of self-defense beyond a reasonable doubt.
Self-defense as justification has been the rule of law in Georgia for over 100 years. However, to meet the self-defense standard, it is generally required for the other party to be the aggressor, for them to use a threat of force against you, and your response in self-defense of yourself or others must be reasonable. Self-defense is not a bright line yes or no test, and is often left to a jury as the finders of fact to decide. If you have questions regarding the use of self-defense in Georgia or need to discuss your case with a Georgia self-defense attorney, please contact me by text or phone at 678-753-6431 for a free consultation.
