Sheriff Emphasizes Gun Safety Amid New Gun Laws

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The above video is from an interview conducted by Laura-Ashley Harris of WNEG.  The accompanying article can be found here

Open and Concealed Carry Allowed

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.

Traffic Stop Advice

It happened to you.  You were cruising along only to see the dreaded blue lights suddenly appear in your rear view mirror.  Now what do you do?

No, this isn't a piece on how to get out of a ticket or a lesson in technicalities.  This is simply advice to make the stop go as smoothly as possible.

First, you want to safely move off of the roadway, preferably all the way off of a roadway if a parking lot or similar is available.  If not, try to find a level spot with plenty of visibility for approaching motorist to see you.  There is absolutely nothing wrong with slowing down and turning on your hazard lights to indicate you realize the officer is behind you and that you are not fleeing and then proceeding on to a safe place to stop.  This may include driving to a more public or well lit place.  If you have any doubts as to whether or not the person(s) trying to stop you is a legitimate officer, after slowing down and turning on your hazards, call 911 and tell the communications officer that someone is behind you with blue lights and that you are simply trying to verify that it is a legitimate traffic stop.

There are few things to keep in mind from the above paragraph.  By driving to a safe location to stop, you are making it safer for the officer; so, there should not be any angst for your doing so unless the officer has some reason to think that you are leading them into an ambush or looking for a way to escape.  As for calling 911, remember that cellular calls go to the nearest available tower, which may or may not be in the jurisdiction in which you are located at the time of the call; so, listen closely for the name of the agency that answers the call and provide your location clearly to the operator.

After you have stopped your vehicle, keep your hands visible and don't be moving around in the vehicle.  Keep in mind that traffic stops are one of the more dangerous things that officers do; so, please don't make the officer wonder if you are reaching into your console for your driver's license or a weapon.  If it is dark, turn on your interior lights.  If you have dark tinted windows, roll them down to allow for greater visibility.

I am often asked whether or not a driver should inform an officer if there are firearms in the vehicle.  There is no requirement in Georgia to notify officers of such firearms.  There are states that do; so, research this if you will be driving out of state.  My advice would be to not make an issue of the firearm(s) unless it becomes inevitable it will be an issue. With this in mind, don't put your insurance card under your pistol that you keep in the glove compartment or have your driver's license where you would have to reach across your firearm to get to it. If you have a firearm on your person and are instructed to get out of the vehicle that might be a good time to inform the officer of the firearm. If you have to reach into a compartment containing a firearm, tell the officer prior to doing so. Remember that it is perfectly legal for one to transport a firearm within a vehicle without a Georgia Weapons License (GWL); however, if a person is ineligible for a GWL, there are some restrictions as to where a firearm may be carried within a vehicle.

In the above paragraph I mentioned insurance cards. Insurance cards in and of themselves are not considered proof of insurance under Georgia law, but state law still requires that drivers have them in their vehicles. The officer should call in the vehicle's tag information to the dispatch center where a communications officer will check the tag against a state maintained data base. The data base is the determining factor for proof of insurance. The card must still be carried for accident reporting purposes.

Another common question that I get involves traffic stops that cross jurisdictional lines. This is an easy answer. Under 17-4-23 O.C.G.A, any officer may enforce traffic law anywhere in the state provided that the citation be processed in the jurisdiction in which the violation occurred. So, yes, the officer can stop you there…

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.

 

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.