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.

Videos: A Fixed Perspective

I recently saw the following videos at the Georgia Sheriffs’ Association Command Staff Conference. The use of deadly force by officers depicted in the videos is not the central theme of this article. They merely are illustrative of the fact that videos are a fixed perspective; a fact that should be considered when using them to evaluate an incident.

Please watch this video make a decision based upon only what you see in the video as to whether or not the use of deadly force was justified in this instance.

After you have watched the first video, watch this one. There is no audio in the second video.

Did your perspective of the incident change after viewing the second video?

Obviously, you realize at this point that they are videos of the same incident taken from two different in-car video systems; however, the perspectives they offer are radically different. They are exhibit A that video evidence does not always tell the complete story or give a full frame of reference for an incident. In most cases, we only have the perspective offered by a single camera.

Liken this to watching a football game on TV and reviews via instant replay. There plays where from one angle, it looks like a player was in bounds, had control of the ball, or crossed the goal line, where a different angle leads to a completely different outcome for the play in question. Why does this escape us when we watch videos of incidents?

This issue is not just one for police incidents. Think of the current case from Oklahoma where the store clerk shot the armed robber, retrieved a second firearm, and then shot the armed robber again after he was down. Would video from another angle show us more closely what the store owner saw in that case? Could such video have possibly changed the prosecutor’s decision to seek charges in that case?

The intent of this piece is not to make an argument that video evidence be completely discounted. It is simply to show that videos may not tell the whole story.

As for the incident in above videos, three independent investigations were conducted with the officers being cleared criminally and civilly in all three.

The item in the individual’s hand was a cell phone.

DUI Information

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.