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Publication Date

3-2008

Document Type

Article

Abstract

Georgia law provides statutory immunity for a person charged with an assault that arose in defense of property including habitation and real property. 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"), 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

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