SB572: SB572 Criminal Prosecutions; an additional justification for use of force in defense of self or others; provide

26 LC 49 2741 Senate Bill 572 By: Senators Strickland of the 42nd, Anavitarte of the 31st, Robertson of the 29th, McNeel of the 18th, Hatchett of the 50th and others AS PASSED SENATE A BILL TO BE ENTITLED AN ACT To amend Article 2 of Chapter 3 of Title 16 of the Official Cod e of Georgia Annotated,1 relating to justification and excuse in defenses to criminal prosecutions, so as to provide for2 an additional justification for use of force in defense of self or others; to provide for a3 rebuttable presumption; to provide for timing for claims of immunity from prosecution based4 upon justification; to provide for standards of proof; to amend Code Section 51-11-9 of the5 Official Code of Georgia Annotated, relating to no duty to retreat and immunity in certain6 instances of threat or use of force, so as to extend immunity from civil liability in justified7 use of force cases to legal representatives and heirs of the pe rson against whom force was8 used; to provide for related matters; to provide for an effecti ve date; to repeal conflicting9 laws; and for other purposes.10 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:11 SECTION 1.12 Article 2 of Chapter 3 of Title 16 of the Official Code of Geor gia Annotated, relating to13 justification and excuse in defenses to criminal prosecutions, is amended by revising Code14 Section 16-3-21, relating to use of force in defense of self or others and evidence of belief15 that force was necessary in murder or manslaughter prosecution, as follows:16 S. B. 572 - 1 - 26 LC 49 2741 "16-3-21.17 (a) A person is justified in threatening or using force agains t another when and to the18 extent that he or she reasonably believes that such threat or f orce is necessary to defend19 himself or herself or a third person against such other's immin ent use of unlawful force;20 however, except as provided in Code Section 16-3-23, a person is justified in using force21 which is intended or likely to cause death or great bodily harm only if he or she reasonably22 believes that such force is necessary to prevent death or great bodily injury to himself or23 herself or a third person or to prevent the commission of a forcible felony. Any such use24 of force is presumed to be reasonable and necessary for defense and justified pursuant to25 this Code section, but such presumption may be rebutted.26 (b) A person is not justified in using force under the circums tances specified in27 subsection (a) of this Code section if he or she:28 (1) Initially provokes the use of force against himself or her self with the intent to use29 such force as an excuse to inflict bodily harm upon the assailant;30 (2) Is attempting to commit, committing, or fleeing after the commission or attempted31 commission of a felony; or32 (3) Was the aggressor or was engaged in a combat by agreement unless he or she33 withdraws from the encounter and effectively communicates to such other person his or34 her intent to do so and the other, notwithstanding, continues or threatens to continue the35 use of unlawful force; or36 (4) Used or threatened force against a law enforcement officer acting in the performance37 of his or her official duties and such officer properly identif ied himself or herself in38 accordance with law or the person who used or threatened force knew or reasonably39 should have known that the person was a law enforcement officer and the force used or40 threatened occurred in a location readily accessible to the pub lic or a place of public41 accommodation.42 S. B. 572 - 2 - 26 LC 49 2741 (c) Any rule, regulation, or policy of any agency of the state or any ordinance, resolution,43 rule, regulation, or policy of any county, municipality, or other political subdivision of the44 state which is in conflict with this Code section shall be null , void, and of no force and45 effect.46 (d)(1) In a prosecution for any offense prohibited under Chapt er 5 of this title, if a47 defendant raises as a defense a justification provided by subse ction (a) of this Code48 section, the defendant may offer relevant evidence that the defendant had been subjected49 to acts of family violence, dating violence, or child abuse com mitted by the alleged50 victim, as such acts are described in Code Sections 19-13-1, 19 -13A-1, and 19-15-1,51 respectively, in order to establish the defendant's reasonable belief that the threat or use52 of force or deadly force was immediately necessary.53 (2) Relevant evidence includes, but is not limited to:54 (A) Evidence pertaining to the alleged victim's prior acts, including, but not limited to:55 (i) Evidence indicating the defendant sought law enforcement assistance;56 (ii) Evidence indicating the defendant sought services from a counselor, social57 worker, domestic violence program, or other relevant agency or service provider;58 (iii) Evidence indicating the defendant sought medical attention;59 (iv) Evidence of the effects of battering and post-traumatic s tress disorder on the60 defendant; and61 (v) Temporary protective order petitions, ex parte orders, and final orders in which62 the alleged victim is the respondent;63 (B) Expert testimony, including, but not limited to, testimony as to relevant facts and64 circumstances relating to the family violence, dating violence, or child abuse, as such65 acts are described in Code Sections 19-13-1, 19-13A-1, and 19-15-1, respectively, that66 are the bases of such expert's opinion; and67 (C) Any other evidence the court determines is of sufficient c redibility or probative68 value.69 S. B. 572 - 3 - 26 LC 49 2741 (3) Evidence introduced under this subsection shall be subject to Code Sections70 24-4-401, 24-4-402, and 24-4-403."71 SECTION 2.72 Said article is further amended by revising Code Section 16-3-2 4.2, relating to immunity73 from prosecution and exception, as follows:74 "16-3-24.2.75 (a) A person who uses threats or force in accordance with Code Section 16-3-20, 16-3-21,76 16-3-23, 16-3-23.1, 16-3-24, or 17-4-20 shall be immune from cr iminal prosecution77 therefor unless in the use of deadly force, such person utilize s a weapon the carrying or78 possession of which is unlawful by such person under Part 2 of Article 4 of Chapter 11 of79 this title.80 (b) A law enforcement agency may use standard procedures to in vestigate the use of81 threats or force in instances set forth in subsection (a) of th is Code section; provided,82 however, that such agency shall not arrest a person for using o r threatening to use force83 unless a probable cause determination has been made that such f orce used or threatened84 was unlawful.85 (c) A claim of immunity pursuant to this Code section may be made during arraignment86 or as a pretrial motion. When a prima-facie claim of immunity has been raised, such claim87 shall only be overcome by clear and convincing evidence."88 SECTION 3.89 Code Section 51-11-9 of the Official Code of Georgia Annotated, relating to no duty to90 retreat and immunity in certain instances of threat or use of force, is amended as follows:91 "51-11-9.92 A person who is justified in threatening or using force against another under the provisions93 of Code Section 16-3-20, relating to justification as a defense , Code Section 16-3-21,94 S. B. 572 - 4 - 26 LC 49 2741 relating to the use of force in defense of self or others, Code Section 16-3-23, relating to95 the use of force in defense of a habitation, Code Section 16-3- 24, relating to the use of96 force in defense of property other than a habitation, or Code Section 17-4-20, relating to97 arrests and use of force by law enforcement officers, has no duty to retreat from the use of98 such force and shall not be held liable to the person against w hom the use of force was99 justified, to any legal representative or heir of such person, or to any person acting as an100 accomplice or assistant to such person in any civil action brought as a result of the threat101 or use of such force."102 SECTION 4.103 This Act shall become effective upon its approval by the Governor or upon its becoming law104 without such approval.105 SECTION 5.106 All laws and parts of laws in conflict with this Act are repealed.107 S. B. 572 - 5 -