HB 1061, Stand your ground (House Version)

Discussion in 'Previous Bills' started by Gunstar1, Jan 24, 2006.

  1. Gunstar1

    Gunstar1 Administrator

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    http://www.legis.state.ga.us/legis/2005 ... hb1061.htm
    Similar to the Senate version (SB 396) the house version includes "immunity from civil action for the use of force in defense of self or others"

    Which means the criminal's family cannot sue you for defending yourself.
     
  2. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Already the Law

    I think it's already the law in Georgia that if you use deadly force in a way that is legally justified under the criminal code (see OCGA 16-3-20 through 16-3-24.2), not only are you immune from criminal prosecution but you also have no civil liability either. You have not violated a duty of care (no negligence) nor committed what the law would recognize as an intentional tort (wrongful act) if you shoot out of necessary self-defense.

    This may be just an interpretation of our law by the Courts, however, and future Courts may want to re-interpret it differently, so it would be good to nail this down in black-and-white with a statute by the legislature.

    IMPORTANT IMPORTANT IMPORTANT We need to get rid of the language currently found in 16-3-24.2 that says that if you shoot somebody with a gun that was illegally possessed or unlawfully carried, you cannot claim self-defense. This is an abomination, and a very dangerous public policy. If the shoot is good, then it is good, and no charges should come of it, although if due to the shooting the cops find out that you were packing a gun in a gun-free zone, they should be free to charge you with THAT separate offense.

    It appears that under 16-3-24.2, if your uncle Ted, a convicted felon for some long-ago and minor offense, was babysitting your infant son, and then suddenly a hardcore thug with a knife breaks down your door and announces his intention to rape the boy and kill him and Uncle Ted and anyone else in the house who might be witnesses, and Ted (who does not own any guns, but knows that you do) breaks the glass door on your gun cabinet and loads your pistol and uses that pistol to kill the intruder (saving his own life and your baby's) , Ted would have no legal defense to the murder case against him. Convicted felons cannot possess guns, and there's no exception in the law itself for possession only for the purpose of self-defense (like there is for possession of handguns by juveniles), and since Ted shot the home invader with an illegal gun, it's got to be murder, or at best voluntary manslaughter, because he would not be allowed to claim self-defense. Is that okay with you? Then tell your leglislator to wipe this asinine law off the books, and stop confusing the issues between what is the crime of illegal possession of a gun and what is the crime of using the gun against another person illegally.
     

  3. john

    john New Member

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    That is why I go to Jury duty when called. The law does not judge people we do.
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re: Already the Law

    (1) That is not immunity from civil liability, that is just a ruling in your favor on down the road after you go through a lawsuit. Immunity is a different issue, and we need such a positive statement in the law, in my opinion. HAving handled some "immunity" cases, I can say that it makes a huge difference. In my view, that is the main benefit to this "Stand Your Ground" proposal, mostly because of issue (2), below.

    (2) It is already the law of Georgia that one need not show that he could not retreat prior to defending himself, but this is a rule of judicial construction, not statute. It can be changed. The statute is silent on the matter, and we need such a positive statement in the law, in my opinion.

    (3) It would also be helpful to require the judge to instruct the jury on "no duty to retreat" where self defense is the issue. As it stands now, one claiming self defense has no right to such an instruction unless the prosecutor raises the issue at trial.

    There are a lot of people out there on juries who probably think, "Why couldn't he have just run away instead," even without the prosecutor raising it. An instruction on what is, after all, the law, would help avoid the jury reaching conclusions that are contrary to the law.
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re: Already the Law

    This is important enough that it deserves its own separate post, especially since Georgia has so many places off limits now.

    :(
     
  6. Mike from Philly

    Mike from Philly New Member

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    Hey, I'm baaaacccckkkkk.

    Did anyone check the party affliation of the sponsors of this bill?

    They are Democrats ....... it appears the Republican monopoly on the 2nd Amendment vote is no longer a gaurantee. We need to support these patriots. They are going to face attacks not only from the Republicans but also their own party leaders.
     
  7. jrm

    jrm Sledgehammer

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    I have not researched the case law on this issue, but there already exists a dichotomy in the self defense statutes, and the proposed bill preserves the dichotomy. 16-3-21, 16-3-23 and 16-3-24 state that a person is justified in using force under certain circumstances. I view these statutes as true self-defense provisions, meaning that they are an affirmative defense to a criminal prosecution. 16-3-24.2, which is not altered by HB 1061, is an immunity statute, in that it specifically says someone who uses force in accordance with that section is immune from criminal prosecution.

    I see the two sections working differently. The self-defense provisions enable a defendant to introduce evidence at his trial that he was justified in using the force that he did, and he is then entitled to a jury instruction that he should not be found guilty if he used the force permitted by the self-defense provision.

    16-3-24.2, being an absolute immunity provision, ought to be much more powerful. The defendant ought to be able to raise the issue of immunity early on, way before trial, to have the case dismissed. For if someone is immune from criminal prosecution, the state should be barred from using the entire criminal process against him.

    Now, as to gunsmoker's point, unless there is negative case law out there, I don't think 16-3-24.2 operates as a bar to any self-defense defenses. Note, for instance, that 16-3-24.2 does not apply to 16-3-21 even now. 16-3-21 is a self-defense statute. For whatever reason, the legislature did not opt to give immunity to those who can claim self-defense under 16-3-21 but not under 16-3-23.

    So, while it would be nice to expand the immunity provisions of 16-3-24.2, I don't view that section as a limitation on the other self-defense statutes. I think the way to "fix" 16-3-24.2 is to work on the public gathering restrictions.
     
  8. jrm

    jrm Sledgehammer

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    OK, I did a little research and confirmed my discussion above. If a defendant claims immunity under 16-3-24.2, the court must rule on a motion to dismiss before the trial begins. (For those that care, see Boggs vs. State, 261 Ga. App. 104 (2003)). Thus, the immunity statute is much more powerful than the self-defense statute. I also found a case where someone claimed immunity, and the court ruled that the circumstances were such that the defendant was claiming defense of person, not defense of habitation. The importance here is that defense of person does not get immunity, but defense of habitation does. Defense of person still is a valid defense, however. So, 16-3-24.2 does not in any way limit the self-defense statutes. It just gives the defendant another (and more powerful) way to defend himself against criminal charges.
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    24.2 applies a little more broadly than defense of habitation. It is also defense of property, which could be an important distinction depending on the circumstances. See 24 for the list of property to which it applies.
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    On immunity from civil suits, this bill would change not 24.2, but 51-11-9. This currently provides immunity for defense of habitation. If this bill passes, then it will provide for immunity from tort actions for "defense of self or others."

    This is a big deal, and I personally support it.
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Mike, good to hear from you again.

    This is not a bad thing. I am contacting my State Representative today to inquire as to why he is not a sponsor of the bill, making this a bipartisan bill. Making the bill bipartisan would go a long way toward helping it pass.

    I am also contacting my State Senator regarding adding immunity from tort lawsuit provisions to the house version.
     
  12. 2Abeliever

    2Abeliever New Member

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    Are we contacting our state Sen. or House Rep for this HB1061? Want to make sure I go to the correct person. Thanks. :?:
     
  13. Gunstar1

    Gunstar1 Administrator

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    Contact your Representative to support this bill.

    SB 396 in the Senate, is similar but does not have the civil liability immunity part.
     
  14. jrm

    jrm Sledgehammer

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    Quite right. I was paraphrasing the court's ruling, not giving an exhaustive list of the reach of 24.2
     
  15. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Just for future reference - the "H" means House.

    If it is SB, then the "S" means Senate.

    That will make it easier in the future.

    I would contact both. I would ask them to sponsor and push whichever version applies (H or S) and ask the State Senator to add the same civil tort immunity as the House version.
     
  16. Sharky

    Sharky New Member

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    Forgive me for not knowing, but when does this all happen? When will we know if this becomes passed?
     
  17. jrm

    jrm Sledgehammer

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    The legislative session will last another several weeks. You'll know within the next couple months how it's going.
     
  18. Mike from Philly

    Mike from Philly New Member

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    you can find the status on the legislatures web site. Here is a link for this bill:

    http://www.legis.state.ga.us/legis/2005_06/sum/hb1061.htm

    Bare in mind, this bill will go back and forth between the Senate and House several times. Each chamber seems to want to change the other chambers language. This is what just occurred with the Voter ID law. The flaggers got out maneuvered because the size of the flag was indispute. When the back and forth was over, the 1956 version of flag was removed from being a option for voters.
     
  19. Sharky

    Sharky New Member

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    cool thanks, just found the status pages.
     
  20. legacy38

    legacy38 Active Member

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    Many Democrats in the GA General Assembly are far to the right of many Republicans on the national scene. Many were old time Southern Democrats that just never changed their party affiliation after the '94 Republican takeover on the national scene. With each passing election cycle more and more people are running on Republican tickets for these seats. For years in rural Georgia most elections where settled in the Democratic primary. It wasn't until the late '90s that my original home county ever even had a Republican on the ticket.