Immunity from Criminal Prosecution

[GAgunLAWbooklet]

This is a poll FIRST, and then a debate / discussion forum second.
Please vote before you read anything other than the law itself. Please vote before you read others' opinions.


ISSUE: In Georgia, if you are carrying a gun in an off-limits location for the purpose of self-defense, and nobody knows about it until you actually need to pull it out in lawful and necessary self defense (assume you have a legal green light to use deadly force. That's a stipulation for this debate)...

... can you be prosecuted for any gun possession / carry violation?
(We know you can't properly be prosecuted for assault / threats/ killing the bad guy. That's also a given.)

RULE(S):

Code section 16-11-138 (a new code section created by HB 60 in 2014, and given only a minor tweaking of no substantive change the next year, 2015, with HB 90), says:

"Defense of self or others, as contemplated by and provided for under Article 2 of Chapter 3 of this title, shall be an absolute defense to any violation under this part."

[NOTE: "this Part" means everything from 16-11-125.1 through 16-11-138. That's where most of Georgia's gun laws are written.]

Code section 16-3-24.2 (has been the law for many years, I'm not sure how many. At least a dozen.)

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 of Article 4 of Chapter 11 of this title.

APPLICATION:

How would you apply these laws to the given scenario?
Give your reasoning, logic, line of thinking, etc.


CONCLUSION:
Can the armed citizen be prosecuted for unlawfully carrying the gun that he carried before he knew he would need it, but which he certainly DID need that day? Yes or no.

 

[Shortcut]

I have wondered this before? In for the answer.

 

[WC1911guy]

I think in today's social media driven justice system (they seem to pick and choose who they charge based on the mob's opinions) you could be charged regardless and have to defend yourself in court. Is that the way it should be? Nope, but there is no doubt in my mind that if you were carrying a weapon somewhere it's not allowed and you had to use it in a justifiable manner there could still be the chance of a liberal out cry for you to be prosecuted even if you "saved lives". Does it make sense? No, but when do liberals ever make sense?

 

[105thSoftail]

The DA would jump at the chance to prosecute....anyone

 

[palmettomoon]

You can be prosecuted by some douchebag DA, certainly. His biggest fear should be someone like me getting on the jury. Biggest ****ing fear.

 

[November Sierra]

Why is there so much legal jargon that makes no sense to anyone? Why can't I just shoot a guy in a clear cut self defense scenario and the cops just send me on my way? This is something that's always puzzled me.

 

[MRM]

I have understood the exemption to be true.
There may be some obscure place like a nuke facility or federal installation where you would not be exempt.

 

[voodoochild1989]

I would imagine they would be more than happy to lock up your gun loving ass.

 

[Tazz]

Geez, I hate hypothetical questions involving firearms and the use of them.

 

[gh1950]

The key to the question is in the language of this statute:

Code section 16-11-138 (a new code section created by HB 60 in 2014, and given only a minor tweaking of no substantive change the next year, 2015, with HB 90), says:

"Defense of self or others, as contemplated by and provided for under Article 2 of Chapter 3 of this title, shall be an absolute defense to any violation under this part."

Statute is written so that it is a defense to a charge of violating the statute by having a gun where it was not permitted (among other grounds). If the statute did not contemplate that you could prosecuted, then the statute would not be necessary, or would be stated another way. A defence implies that there is something to defend.

One of the flaws of this law (and 16-3-24.2) is that the law does not state who and when makes the determination that you are covered by either law. If the judge leaves either decision (defense or immunity) to the jury, then the answer to the original question is that you could be prosecuted, these two exculpatory statutes notwithstanding.

Florida addressed this by providing a specific pre-trial proedure to make the determination.

So not only is prosecution "possible" but it probably would be likely in certain circumstances, like pulling out a gun in the middle of a bunch of pre-schoolers, or in Sanford Stadium with 90,000 of your best friends.