Vigilant or Vigilante? Procedure and Rationale for Immunity in Defense of Habitation and Defense of Property Under the Official Code of Georgia Annotated Sections 16-3-23, -24, -24.1, and -24.2 - Robert Christian Rutledge

• Citation: Vol. 59 No. 2
• Publication year: 2008

Vigilant or Vigilante? Procedure and Rationale for Immunity in Defense of Habitation and Defense of Property Under the Official Code of Georgia Annotated Sec. 16-3-23, -24, -24.1, and -24.2by Robert Christian Rutledge^*

I. Introduction

It is 11:49 p.m. Sarah's arm quivers as she pumps the shotgun. She yells again at the silhouette prying at the lock on the rear door of her house. "Get out of here! I'm gonna shoot!" Sarah points the shotgun awkwardly toward the lower part of the french door. The silhouette punches through the pane of glass near the doorknob, unlocks the doorknob, and begins patting around for the deadbolt. Sarah closes her eyes and squeezes the trigger. The shotgun flashes and kicks. The silhouette—Sarah's ex-boyfriend—emits guttural groans and fierce expletives as he limps from the porch and into the backyard, dragging his right leg. Sarah sees him hop and stumble into the darkness beyond the floodlight. Sarah runs into the kitchen, where she finds her cell phone. She calls the police.

The police secure the yard. One officer tries to calm an irate neighbor. Another officer radios the address to an ambulance coming to pick up Sarah's ex-boyfriend. He has fallen from loss of blood while attempting to climb the fence. Though in and out of consciousness, Sarah's ex- boyfriend explains to the police: "I told you when I called. She took the keys to my car and locked me out of the house. I know I'm not supposed to be here, but we made up. I was just knocking on the door and she shot me. She shot me!"

Sarah loses her breath. She turns to the nearest officer. "I . . . I called you! I talked to the operator!" she shrieks. "He was trying to kill me! He wasn't trying to leave! He smashed the window in!" The officer tries to calm Sarah down, but Sarah begins struggling and trying to confront her ex-boyfriend. As Sarah struggles, and officers firmly restrain her, another officer calls dispatch and checks the names of Sarah and her ex-boyfriend for prior arrests and offenses. Apparently, Sarah had unsuccessfully petitioned for a restraining order against her ex-boyfriend to keep him out of her house. In turn, the ex-boyfriend reported Sarah for making terroristic threats on two occasions, but she was not arrested. Unable to determine conclusively who had been the aggressor in this instance, the police arrest both.

Two days later, Sarah's ex-boyfriend is still recovering in the hospital under close supervision. Sarah spent the last thirty-nine hours in jail and has finally found a family member to put up a property bond for her. Based on its review of the records, the State has pressed charges against both parties: criminal trespass against the ex-boyfriend and aggravated assault and aggravated battery against Sarah.

II. Statutory Immunity for Those Defending Habitation and Property

Georgia law provides statutory immunity for a person charged with an assault that arose in defense of property including habitation and real property.¹ Such a defense would apply to the scenario above. The procedure for utilizing those immunities, however, is not clear in the applicable statutes, official Code of Georgia Annotated ("o.C.G.A.") sections 16-3-23, -24, -24.1, and -24.2 (the "Immunity Statutes"),² or in recent cases applying those statutes. This Article proposes a procedure for using those immunities as efficiently as possible. While seeking an efficient procedure, this Article also attempts to ascertain the rationale and policies behind the Immunity Statutes.

First, this Article examines Georgia's statutes, cases, and legislative history related to immunity for defense of property and habitation. Second, this Article examines how other states deal with this particular kind of immunity in their statutory schemes. In that section, a Colorado statute addressing immunity for defense of habitation is examined, as are the Colorado cases elaborating upon the nature of a pretrial immunity procedure based on the Colorado statute. Finally, this Article proposes a procedure for conducting pretrial immunity hearings for Georgia in light of the language of the statutes, the legislative history, and the possible policy rationale. For a perspective helpful in considering the proposed procedure, the final section considers Colorado's policy and the application of its statute as a comparison. Ideally, the proposed procedure will help implement the immunity demanded by Georgia's Immunity Statutes.

A. O.C.G.A. sections 16-3-23, -24, -24.1, and -24.2

The limits for the use of force in defense of property are provided in O.C.G.A. sections 16-3-23 and 16-3-24. Section 16-3-23 addresses the defense of habitation, and section 16-3-24 addresses the defense of real property other than habitation.³ Section 16-3-24.1 defines habitation as "any dwelling, motor vehicle, or place of business," and defines personal property as "personal property other than a motor vehicle" to distinguish personal property from the kind of real property dealt with by the statutes.⁴

Under the Immunity Statutes, the defense of habitation justifies a person's use of force more broadly than the defense of other real property. Most of the sections and subsections of the Immunity Statutes limit the force to the amount that the person reasonably believes necessary to prevent trespass, entry, attack, or interference with the property. As discussed below in Part IV.B.1, however, o.C.G.A. section 16-3-23(2) may not require the defender of habitation to have an objectively reasonable belief.⁵ Section 16-3-23, which addresses defense of habitation, justifies the use of force "which is intended or likely to cause death or great bodily harm,"⁶ only under the following circumstances: (1) when the use of force is necessary to prevent the "assault or offer of personal violence" after an "entry is made or attempted in a violent and tumultuous manner," and the person "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";⁷ (2) when a person "who is not a member of the family or household . . . unlawfully and forcibly enters or has . . . entered the residence and the person using such force knew or had reason to believe" that the entry had occurred in that manner;⁸ or (3) when the person who uses such force "reasonably believes that the entry is made or attempted for the purpose of commiting a felony . . . and that such force is necessary to prevent" the entry.⁹

In contrast to section 16-3-23, section 16-3-24 justifies the use of force in defense of real property other than habitation more narrowly. Like most of section 16-3-23, section 16-3-24 limits the use of force to instances when the person reasonably believes that force is necessary, and to the extent that he or she reasonably believes the force is necessary to defend real property other than habitation.¹⁰ However, section 16-3-24 further limits the situations in which a person is justified in defending real property from "trespass . . . or other tortious or criminal interference"¹¹ to those situations when the property is "[l]awfully in [the defender's] possession,"¹² "[l]awfully in the possession of a member of [the defender's] immediate family,"¹³ or when the property belongs "to a person whose property [the defender] has a legal duty to protect."¹⁴ Section 16-3-24 does not justify the use of force "likely to cause death or great bodily harm" in those situations unless the person "reasonably believes that it is necessary to prevent the commission of a forcible felony."¹⁵

The threat of force is also addressed in O.C.G.A. sections 16-3-23 and 16-3-24. Each statute begins by providing that "[a] person is justified in threatening or using force" to defend property.¹⁶ Due to the disjunctive language distinguishing threat and use of force, however, it is not clear whether the limitations on the use of force in later subsections apply to the mere threat of force. After this language, each statute then addresses the use of force, but not the threat of force alone.¹⁷ The distinction between threat and force is addressed below in Part IV.B.3, which discusses the proposed procedure for immunity.

Both O.C.G.A. sections 16-3-23 and 16-3-24 are governed by O.C.G.A. section 16-3-24.2, which creates the immunity.¹⁸ Section 16-3-24.2 provides that a person is immune from criminal prosecution if that person uses force in compliance with section 16-3-23 or 16-3-24.¹⁹ If the person uses a weapon, section 16-3-24.2 provides immunity as long as that person may lawfully carry or possess a weapon.²⁰ The statute directs courts to consider O.C.G.A. section 16-11-131,²¹ which criminalizes the possession of firearms by convicted felons, to determine if the party may lawfully carry or possess the weapon.²²

B. Application of the Immunity Statutes by Georgia Courts

The procedure used by Georgia courts to determine immunity under the Immunity Statutes is unsettled, although the courts have sought an appropriate procedure and have made a few attempts at implementing it. In Boggs v. State,²³ the Georgia Court of Appeals emphatically held that, under the plain meaning of O.C.G.A. section 16-3-24.2, criminal proceedings are barred against a person who is immune, and that the trial court must determine the immunity before the person's trial commences.²⁴ Further, failure to raise this immunity defense prior to trial may be a ground for reversal due to ineffective assistance of counsel.²⁵ In Benham v. State,²⁶ the Georgia Supreme Court held that the failure to request a jury instruction that includes the defense of habitation as an affirmative defense constitutes ineffective assistance of counsel.²⁷

Because Boggs establishes that these statutes set forth immunity defenses available prior to trial, and because Benham further establishes that the failure to raise the affirmative defense of defense of habitation before the jury is a ground for reversal based...