Retrieving weapon in defense of others

Discussion in 'GA Laws and Politics' started by 70755, Oct 6, 2010.

  1. 70755

    70755 Guest

    Did Georgia not have at one time (or does it now) a code section that essentially stated that in a situation where use of deadly force is justified (preventing an assault for example), that it would be legal/justifiable for a person to retrieve a weapon from a legal place
    (for example in his car) and enter, for the purpose of the justifiable use of force, a place he otherwise would not be allowed to possess such weapon? I thought it did but cannot not locate it.

    For example, under current law, you cannot possess a weapon at a church but can have it in your car. If someone were assaulting someone in the church, is it codified anywhere as legal for one to retrieve their weapon from its legal place in their car and enter the prohibited area so as to lawfully use force in defense of others?
     
  2. Fallschirmjäger

    Fallschirmjäger I watch the watchers

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    I don't know of a specific code section on the subject but there is certainly a legal theory for that; I just can't name it at the moment.
     

  3. EJR914

    EJR914 Cheezburger Operator

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    I don't know of a code. If there was an active shooter situation, and you retrieved your weapon from you car, stopped the shooter and saved lives, you'd be hard pressed to find a DA that is anti-gun enough to prosecute you. Plus, he would be afraid of how that would look to the public.

    I'm not saying it couldn't happen though. Its just unlikely. However, at least you would know that you did the right thing and you saved innocent lives.
     
  4. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Good find, GaGunOwner! But in addition to that really old HARRIS case (1914), we can also look at modern statutory law.

    § 16-3-20. Justification


    The fact that a person's conduct is justified is a defense to prosecution for any crime based on that conduct.
    The defense of justification can be claimed:

    (1) When the person's conduct is justified under Code Section 16-3-21, 16-3-23, 16-3-24, 16-3-25, or 16-3-26;

    (2) When the person's conduct is in reasonable fulfillment of his duties as a government officer ...

    (3) When the person's conduct is the reasonable discipline of a minor ...

    (4) When ...making a lawful arrest;

    (5) When the person's conduct is justified for any other reason under the laws of this state; or

    (6) In all other instances which stand upon the same footing of reason and justice as those enumerated in this article.



    So if you have a gun in your parked car outside of a church, and you didn't bring your gun into the church because you know it's a crime, but then you see some nutcase start a killing rampage in the church and you go grab your gun from your parked car and bring it back into the church to help stop the bad guy, it looks like you have a number of these "justification" defenses available to you.

    #1 above applies in cases of defending yourself or others.
    #4 might apply if you needed that gun to effect a felony arrest. Cops arrest people at gunpoint all the time, so why can't you? And if the bad guy does not want to be arrested but would rather fight to the death, see #1 above.
    #5 and #6 are the catch-all justifications that could be applied to almost any situation where most people would just think it's unfair to prosecute you because you had a good enough reason to bring that gun into a church.

    P.S. The other day I saw in injured grounhog on the side of the road. It was quivering, and breathing heavy, but blood was coming out of its nose and ears and one leg was mangled. I think it had just been hit by a car.
    If I had pulled over and intentionally killed it, could I be charged with felony animal cruelty? It sure seems so. That law does not have any exception for putting an injured animal out of its misery in the field or the side of the road (there is an exception for veternarians to put an animal to sleep, but I'm not a vet!)
    So IF I had shot this animal, I could have been charged with both "animal cruelty" and "discharging a gun within 50 yards of a public road." But then I could have asserted a "justification" defense using #6 above as the catch-all to try to save myself from several years in prison.
     
  5. Montieth

    Montieth Active Member

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    I'm a bit amused by some of the langauge in Harris v State. Quite colorful.



    Our holding in this case is not confined in its effect to the facts of this particular case, but we are brought face to face with the question whether the Supreme Court, when it said (in answer to our inquiry as to whether the act was constitutional) that "the act should receive a reasonable construction," contemplated any exception whatsoever to its strict letter, under which proof that a license was obtained would be the only defense left open to one shown to have been in possession of a pistol at a place other than his home or place of business, if he does not belong to one of the classes which the law expressly excepts from its operation. Clearly, the statement that the law is to be given a reasonable construction (when we bear in mind the instances referred to in illustration of what is meant by the term) cannot be otherwise construed than as a statement that some instances may be imagined and some circumstances may rise in which it would be unreasonable to hold to an absolutely literal construction of the language of the act. If so, we should undoubtedly be compelled to hold that one whose life had been threatened, and whose very existence was in imminent peril, not from the fact that threats had been made, but from the undeniable evidence that these were to be made immediately effective, would not be required to take even 15 minutes to get a license, when perhaps it was perfectly apparent to himself and to every bystander that, unless he got a pistol within 5 minutes, or less time, the license would be entirely useless, for the reason that it could serve no possible office for a dead man. The license is intended only for the living. It will not be accepted for ferriage on the river Styx. In an observance of this law according to a strict and literal construction, a good citizen might prefer to die rather than to use his neighbor's pistol without having obtained a license which would entitle him to the manual possession of a pistol, even though under the circumstances the law of the land would justify the use of a pistol in committing a homicide. But we hardly think that the General Assembly had any citizen of that type in mind at the time of the passage of the legislation in question. The prevention by a husband or father of an impending act of adultery is justified upon the principle which permits to one who is assailed the use of a deadly weapon to prevent a felonious assault or a homicide. And for that reason we do not think that the question of sympathy in the slightest degree affects us. The judgment of the majority is controlled solely by the application of the same rules of reasonable construction which have heretofore been applied by this court in Jackson v. State, 12 Ga. App. 427, 77 S. E. 371, Cosper v. State, 13 Ga. App. 301, 79 S. E. 94, Amos v. State, 13 Ga. App. 140, 78 S. E. 866, and other cases.
     
  6. 70755

    70755 Guest

    revisiting an old thread.....

    I get all of that but what bothers me, at least in terms of the letter of the law, is explicit exception language:

    O.C.G.A. § 16-3-24.2
    Immunity from prosecution; exception

    A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 or 3 of Article 4 of Chapter 11 of this title.


    ("Part 3 of Article 4...." includes code sections 16-11-126, -127, -127.1...)

    This seems to suggest that Justification does not necessarily apply in the case of you having used, in defense of self/others, a weapon at a prohibited location. No distinction is made between you having had the weapon there already (you carried illegally in a church for example) or you went and retrieved it after something bad had started. I see the law as leaving you open to potential prosecution in a retrieve scenario even if the force were otherwise totally justified. Perhaps that would not happen, but I just don't like it being technically illegal given the explicit exception language in 26-3-24.2 and your fate left in the hands of a DA to decide not to prosecute. I'd rather the law be more explicitly on the side of those that do the right thing.
     
  7. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Justification is not exactly the same as immunity, at least in theory.
    Immunity means there's a pre-trial hearing (basically a bench trial) and at the end of the hearing the judge rules that you have immunity. You will not be put on trial. You don't face a jury or have to put your fate in their hands. If you don't have immunity, you go to trial.

    But if there is a trial, at the trial you will still be able to present a self-defense claim and defense, and you are entitled to a jury instruction on self -defense if there is any evidence to support it.

    In practical application, you could say that if you're carrying the gun legally, it only takes one judge to rule in your favor to end the case against you (immunity).

    If you're carrying the gun illegally, the only way a judge could end the case in your favor before it gets to the jury would be to let the State present its evidence, and then you make your defense motion for a directed verdict, and the judge can grant it if the State has such little evidence that a fair-minded impartial jury could not find each required element of the crme to be proven beyond a reasonable doubt. That's a tough standard to meet and it's rarely successful. Judges in criminal cases would generally prefer that your fate be decided by a jury of your peers. That's more risk for you, although the right jury instructions from the judge to the jury on the law of self-defense can help you.