SB 396 Stand Your Ground (Senate Version)

Discussion in 'Previous Bills' started by Malum Prohibitum, Jan 27, 2006.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I started a separate thread because the Senators need some polite education. SB 396 is not as good as the House version (HB 1061). SB 396 does not contain the immunity provisions. I heard Senator Gregg Goggans (7th District) this morning on NRA Radio (not NPR) talking about this bill, as he is one of the sponsors.

    The host, Cam, asked Senator Goggans whether the competing House Bill was better, and Senator Goggans responded that the only gun bill of which he was aware in the house was the bill relating to guns in parking lots.

    In other words, he did not know about HB 1061.


    Homework assignment:

    (1) Here is a list of the sponsors of the bill:
    http://www.legis.state.ga.us/legis/2005 ... /sb396.htm

    Call each of their offices and ask them to add the tort immunity provisions from the House version (HB 1061) to the Senate Bill. If you want to, you can point out that the tort immunity provisions are in the last section.

    (2) Call your own Senator, if he is not on this bill, and ask him to join it (and add the tort immmunity).
     

  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The Senate Judiciary Committee on Tuesday unanimously approved SB 396. Committee Chairman Preston Smith (R-Rome) expressed some concerns that the bill unintentionally sets a higher standard for Georgians to use deadly force than current law allows. Sen. Geg Goggans (R-Douglas) said he would work with committee members to address those concerns.

    Gunstar1, any chance of you contacting Senator Smith to see if we can assist (and bring up the tort immunity issue from HB 1061, too). I would like to know what exactly the concern is. I am reviewing both bills now.
     
  3. Gunstar1

    Gunstar1 Administrator

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    sure, where did you get that anyway?
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I think the concern is this - read literally, the new proposed section 23.1 could be construed to require a reasonable belief that the use of of force is necessary to prevent death or great bodily harm. That is the standard for lethal force, but not force in general.

    In other words you could not stand your ground unless you thought you were in danger of death or great bodily harm. That is worse than the current law in Georgia on self defense.

    The House version simply inserts "and does not have a duty to retreat" into section 21 (general self defense statute) and section 23 (use of force in defense of habitation) and thus does not change the current standard.

    The Senate version is very unclear.

    As stated before, the immunity in the Senate version is from criminal prosecution only. The House version is preferable on this ground as well.

    We don't need a whole new code section to address this.
     
  5. Gunstar1

    Gunstar1 Administrator

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    I meant where did the information about the vote come from?
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I hear voices in my head. :? :shock: :twisted:
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  8. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    OK, fine, AJC Metro section.
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I really thought the post above contained the more important information, though.
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Section 1 creates a new code section numbered 23.1. Presumably this is copied directly from the law that was passed in Florida, but it is too ambiguous for my liking.
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Section 2 provides for immunity from criminal prosecution (not civil) for use of force under 23.1. Oddly, section 2 does not address immunity from criminal prosecution for the use of force under 16-11-21 (self defense generally).

    Another reason the Senate version is vague.

    UPDATE: Feb. 24 - The Senate added civil immunity to its bill.
     
  12. Gunstar1

    Gunstar1 Administrator

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    Ok, Just gave Sen. Smith's office a call and he was not in. I left a message with the recp.

    I said that my call was about SB 396 and his concerns with that bill. I asked if Sen. Smith knew about or had read the House version and she said she was not aware that he had but might have.

    She said they would working on the wording of the bill. I said that the House version is not worded the same way and does not have the same problem the Senator is concerned about. I said it also contains something the Senate version does not have, it has Civil liability immunity which is a good thing to have. If he does not know the bill, it is HB 1061.

    I told her my name and said I live in Rome. She then asked for my phone number incase he has any questions or wants to contact me.
     
  13. ICP_Juggalo

    ICP_Juggalo Professional Troll

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    I emailed Senator Goggins last week asking him about looking into adding tort immunity after it was brought up here in the forum and I provided a link to the house version containing the language for the tort immunity. I have yet to receive a reply from him. :?
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    :shock:

    OK - I took some time to take a deeper look at the issue. THis should have stood out, and it is a good thing it was not a snake or it would have bit me. :oops:


    The Senate Bill does not include the justification of using deadly force to prevent the commission of a forcible felony. Current Georgia law allows this, but having a separate statute on no duty to retreat that does not include this language might cause a court to conclude that the legislature's intention was to make a duty to retreat apply in the case of defending oneself from a forcible felony.

    All in all, I have to say that the House version, inserting "no duty to retreat" into the current use of force statute, is preferable.
     
  15. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Forcible felony = robbery, rape, &c.
     
  16. Gunstar1

    Gunstar1 Administrator

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  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Great!

    But, well, um, I don't mean to complain, but they did not add in "or to prevent the commission of a forcible felony."

    Might it be that the drafters are unaware of the existence of 16-3-21? That would explain why this new code section, 16-3-23.1, is inserted after the defense of habitation, 16-3-23.

    This leaves unmolested the current self defense statute, 16-3-21, with no "no duty to retreat" language in it whatsoever.

    There will be two code sections covering the same thing.

    If they delete 16-3-21, then there will be no right to shoot to defend oneself from a forcible felony (hey, it's just rape).

    Obviously that last parenthetical is sarcastic.


    Am I making sense here?
     
  18. jrm

    jrm Sledgehammer

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    MP, I agree. This version of the senate bill is an improvement over the previous version, but the house bill is both cleaner and better. As you point out, the senate bill would have two sections (21 and 23.1) authorizing deadly force that are almost identical. The signficant difference is that section 21 authorizes deadly force to prevent a forcible felony and 23.1 does not. The civil and criminal immunity applies to 23.1 and not to 21. The house bill does not create the new section 23.1. It just modifies the existing section 21, and is therefore a cleaner way of accomplishing the greater protection.

    Neither bill "fixes" section 24.2, which I discussed previously. Let me give another example of how this section is a problem. Let's say you are dining at a restaurant that serves alcohol. You are not carrying. Two robbers come in. One guards the door while the other goes from table to table, taking the patrons' money at gun point. When the table guy gets to you, you manage to subdue him (either with your restaurant-provided steak knife or just your own cunning and wile). You get his gun. His partner sees this and opens fire on you. You return fire. He goes down. You just used deadly force with that gun, and you have a very good claim of self defense. You are not immune from prosecution, however, because, the criminal immunity statute (24.2) has an exception if the deadly force "used by such person utilizes a weapon the carrying or possession of which is unlawful by such person [under the GA firearms laws]. Because you may not possess a gun at a restaurant that serves alcohol, you don't get the immunity, even though your actions were by any rational account innocent and even heroic. I don't see any reason why the immunity should not apply to any valid use of force, regardless of the weapon used and the legalities of possessing the weapon at the place it is used.
     
  19. Gunstar1

    Gunstar1 Administrator

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    2/23/06 Withdrawn from General Calendar by Rules Committee and committed to Judiciary Committee in Senate