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.

2 comments

  1. Very informative. As a certified firearms instructor teaching defensive use of a firearm, I fing this helpful and an additional resource to refer students to.

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