cops or robbers? how georgia's defense of habitation

Georgia State University Law ReviewVolume 26Issue 2 Winter 2009 Article 5

March 2012

Cops or Robbers? How Georgia's Defense ofHabitation Statute Applies to No-Knock Raids byPoliceDimitri Epstein

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Recommended CitationDimitri Epstein, Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police, 26 Ga. St. U. L. Rev.(2012).Available at: https://readingroom.law.gsu.edu/gsulr/vol26/iss2/5

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COPS OR ROBBERS? HOW GEORGIA'S DEFENSEOF HABITATION STATUTE APPLIES TO NO-

KNOCK RAIDS BY POLICE

Dimitri Epstein*

INTRODUCTION

Late in the fall of 2006, the city of Atlanta exploded in outragewhen Kathryn Johnston, a ninety-two-year old woman, died in ashoot-out with a police narcotics team.' The police used a "no-knock" search warrant to break into Johnston's home unannounced.2

Unfortunately for everyone involved, Ms. Johnston kept an oldrevolver for self defense-not a bad strategy in a neighborhood witha thriving drug trade and where another elderly woman was recentlyraped.3 Probably thinking she was being robbed, Johnston managedto fire once before the police overwhelmed her with a "volley ofthirty-nine" shots, five or six of which proved fatal.4 The raid and itsaftermath appalled the nation, especially when a federal investigationexposed the lies and corruption leading to the incident. 5 But buriedbeneath all the blatant misconduct lies an interesting legal question.Assuming that the no-knock warrant was valid, did Ms. Johnston

* J.D. Candidate, 2010, Georgia State University College of Law. Thanks to Professor Russell

Covey, Mr. Doug Ramseur, and the Law Review editors for their valuable suggestions and insight. Anydeficiencies are the author's own.

1. Steve Visser, Court Focuses on Botched Raid, Death, ATLANTA J.-CONST., May 5, 2008, at BI,available at 2008 WLNR 8347479; see also Patrik Jonsson, After Atlanta Raid Tragedy, New Scrutinyof Police Tactics: Police Are Reviewing Their Use of "No-Knock" Warrants After an Octogenarian WasKilled After Officers Burst into Her Home, CHRISTIAN SC. MONITOR, Nov. 29, 2006, at 3, available at2006 WLNR 20583600.

2. Jonsson, supra note 1. A no-knock warrant allows the police to enter a suspect's home withoutknocking or otherwise announcing themselves. See discussion infra Part I.A.

3. Brenda Goodman, Police Kill Woman, 92, in Shootout at Her Home, N.Y. TIMES, Nov. 23, 2006,available at http://www.nytimes.com/2006/l l/23/us/23atlanta.html.

4. Walter Putnam, Newsmaker-Prison Time for Botched Raid, MEMPHIS COM. APPEAL (Tenn.),May 23, 2008, at A2, available at 2008 WLNR 9804037.

5. Bill Rankin, Plea in Botched Raid Ends Feds' Case, ATLANTA J.-CONST., Oct. 31, 2008, at Cl,available at 2008 WLNR 20770526. The police lied to the judge to obtain a no-knock warrant and thenplanted drugs in Johnston's house to justify the raid. Visser, supra note 1; see also Bill Torpy, SenselessKilling Still Casts Shadow on Police, ATLANTA J.-CONST., Nov. 9, 2008, at D3, available at 2008WLNR 21418601.

HeinOnline -- 26 Ga. St. U. L. Rev. 585 2009-2010

COPS OR ROBBERS? HOW GEORGIA'S DEFENSE OF HABITATION STATUTE APPLIES TO NO

KNOCK RAIDS BY POLICE

Dimitri Epstein *

INTRODUCTION

Late in the fall of 2006, the city of Atlanta exploded in outrage when Kathryn Johnston, a ninety-two-year old woman, died in a shoot-out with a police narcotics team. 1 The police used a "noknock" search warrant to break into Johnston's home unannounced.2

Unfortunately for everyone involved, Ms. Johnston kept an old revolver for self defense-not a bad strategy in a neighborhood with a thriving drug trade and where another elderly woman was recently raped.3 Probably thinking she was being robbed, Johnston managed to fire once before the police overwhelmed her with a "volley of thirty-nine" shots, five or six of which proved fata1.4 The raid and its aftermath appalled the nation, especially when a federal investigation exposed the lies and corruption leading to the incident. 5 But buried beneath all the blatant misconduct lies an interesting legal question. Assuming that the no-knock warrant was valid, did Ms. Johnston

* J.D. Candidate, 2010, Georgia State University College of Law. Thanks to Professor Russell Covey, Mr. Doug Ramseur, and the Law Review editors for their valuable suggestions and insight. Any deficiencies are the author's own.

1. Steve Visser, Coun Focuses on Botched Raid, Death, ATLANTA J.-CONST., May 5, 2008, at Bl, available at 2008 WLNR 8347479; see also Patrik Jonsson, After Atlanta Raid Tragedy, New Scrutiny of Police Tactics: Police Are Reviewing Their Use of "No-Knock" Warrants After an Octogenarian Was Killed After Officers Burst into Her Home, CHRISTIAN SCI. MONITOR, Nov. 29, 2006, at 3, available at 2006 WLNR 20583600.

2. Jonsson, supra note 1. A no-knock warrant allows the police to enter a suspect's home without knocking or otherwise announcing themselves. See discussion infra Part LA.

3. Brenda Goodman, Police Kill Woman, 92, in Shootout at Her Home, N.Y. TIMES, Nov. 23, 2006, available at http://www.nytimes.coml2006/11123/usl23atlanta.html.

4. Walter Putnam, Newsmaker-Prison Time for Botched Raid, MEMPIDS COM. APPEAL (Tenn.), May 23, 2008, at A2, available at 2008 WLNR 9804037.

5. Bill Rankin, Plea in Botched Raid Ends Feds' Case, ATLANTA J.-CONST., Oct. 31, 2008, at Cl, available at 2008 WLNR 20770526. The police lied to the judge to obtain a no-knock warrant and then planted drugs in Johnston's house to justify the raid. Visser, supra note 1; see also Bill Torpy, Senseless Killing Still Casts Shadow on Police, ATLANTA J.-CONST., Nov. 9, 2008, at D3, available at 2008 WLNR 21418601.

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Epstein: Cops or Robbers? How Georgia's Defense of Habitation Statute App

Published by Reading Room, 2010

GEORGIA STATE UNIVERSITY LAW REVIEW

have a right to shoot at the police officers who broke through herdoor looking for drugs? Would she have been guilty of murder andpossibly sentenced to death if her shot had actually hit and killed apolice officer?

Although the law is far from clear, in reality "when it's a cop whogets shot, the private citizen nearly always winds up in jail."6 Takethe story of Cory Maye, for example. Late one night in 2001, Maye"awoke to a furious pounding on his front door."7 Afraid for his andhis daughter's safety, Maye rushed to the bedroom where hisdaughter slept, retrieved a gun he kept for self-defense, and lay downon the floor hoping the intruders would go away. 8 When a figureburst through the bedroom door, Maye fired three times out of fright.9

Unfortunately for Maye, the intruders turned out to be policeexecuting a no-knock warrant, and one of Maye's bullets hit anofficer in the stomach, killing him. 10 Maye was convicted of capitalmurder, sentenced to death, and put on death row in a Mississippiprison. 11

In another case, an Arkansas SWAT team stormed the house ofTracy Ingle, who, thinking that robbers were invading his home,waved a non-functioning pistol at the officers. 12 The police respondedwith an overwhelming hail of gunfire.1 3 Ingle was shot five times,with one bullet destroying his femur and leaving his leg "danglingfrom his body, connected only by a bloody mess of meat, skin[,] and

6. Statement by Radley Balko quoted by David Koon, Shot in the Dark, ARK. TIMES, Apr. 24,2008, at 10, available at 2008 WLNR 9499620.

7. Radley Balko, Railroaded onto Death Row?, FoxNEWS.CoM, Feb. 15, 2006, para. 4,http://www.foxnews.com/story/0,2933,184992,00.html.

8. Id.9. Id.

10. Id.11. Id; see also Radley Balko, Drug War Casualties Left Behind, ATLANTA J.-CONST., Oct. 6, 2006,

available at 2006 WLNR 17303525. Cory Maye was taken off death row after being given a hearing ona post-trial motion, but was re-sentenced to life imprisonment without parole. Id.; Region Briefs: ManRe-Sentenced for Police Killing, SUN HERALD (Biloxi, Miss.), Nov. 4, 2007, at A16, available at 2007WLNR 21819106. In November 2009, the Mississippi Court of Appeals granted Maye a new trial basedon a change-of-venue error. Maye v. State, No. 2007-KA-02147-COA, 2009 WL 3823287, at *8 (Miss.Ct. App. Nov. 17, 2009); Retrial Ordered in Officer's Killing, CLARION-LEDGER (Jackson, Miss.), Nov.18, 2009, at B 1, available at 2009 WLNR 23254398.

12. See Koon, supra note 6.13. Id.

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have a right to shoot at the police officers who broke through her door looking for drugs? Would she have been guilty of murder and possibly sentenced to death if her shot had actually hit and killed a police officer?

Although the law is far from clear, in reality "when it's a cop who gets shot, the private citizen nearly always winds up in jail.,,6 Take the story of Cory Maye, for example. Late one night in 2001, Maye "awoke to a furious pounding on his front door.,,7 Afraid for his and his daughter's safety, Maye rushed to the bedroom where his daughter slept, retrieved a gun he kept for self-defense, and lay down on the floor hoping the intruders would go away.8 When a figure burst through the bedroom door, Maye fired three times out of fright. 9

Unfortunately for Maye, the intruders turned out to be police executing a no-knock warrant, and one of Maye's bullets hit an officer in the stomach, killing him.1O Maye was convicted of capital murder, sentenced to death, and put on death row in a Mississippi

• 11 pnson. In another case, an Arkansas SWAT team stormed the house of

Tracy Ingle, who, thinking that robbers were invading his home, waved a non-functioning pistol at the officers. 12 The police responded with an overwhelming hail of gunfire. I3 Ingle was shot five times, with one bullet destroying his femur and leaving his leg "dangling from his body, connected only by a bloody mess of meat, skin[,] and

6. Statement by Radley Balko quoted by David Koon, Shot in the Dark, ARK. TIMES, Apr. 24, 2008, at 10, available at 2008 WLNR 9499620.

7. Radley Balko, Railroaded onto Death Row?, FOxNEWS.COM, Feb. IS, 2006, para. 4, http://www.foxnews.com/story/0.2933.184992.OO.html.

8. Id. 9. Id.

10. Id. II. Id.; see also Radley Balko, Drug War Casualties Left Behind, ATLANTAJ.-CONST., Oct. 6, 2006,

available at 2006 WLNR 17303525. Cory Maye was taken off death row after being given a hearing on a post-trial motion, but was re-sentenced to life imprisonment without parole. Id; Region Briefs: Man Re-Sentencedfor Police Killing, sUN HERALD (Biloxi, Miss.), Nov. 4, 2007, at AI6, available at 2007 WLNR 21819106. In November 2009, the Mississippi Court of Appeals granted Maye a new trial based on a change-of-venue error. Maye v. State, No. 2007-KA-02147-COA, 2009 WL 3823287, at *8 (Miss. Ct. App. Nov. 17,2009); Retrial Ordered in Officer's Killing, CLARION-LEDGER (Jackson, Miss.), Nov. 18, 2009, at B I, available at 2009 WLNR 23254398.

12. See Koon, supra note 6. 13. Id.

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COPS OR ROBBERS?

tendon." 14 Though Ingle did not hurt any of the officers, he wascharged with, among other things, two felony counts of aggravatedassault. 15

The two cases outlined above are not isolated incidents. 16 RadleyBalko, a policy analyst for the Cato Institute, has profiled more than130 cases of flawed (but not necessarily illegal) police raids that haveresulted in serious humiliation, injury, or death to innocentbystanders, non-violent offenders, and officers. 17 Moreover,according to criminologist Peter Kraska, the number of no-knockraids across the country jumped from 3,000 in 1981 to more than50,000 in 2006.18 With the deterioration of the "knock-and-announce" requirement, as described below, such no-knock raids arebound to increase. 19

At the same time, many states, including Georgia, have liberalizedtheir self-defense statutes, providing private citizens with broadleeway in using deadly force to repel an attack, especially upon theirhomes. In 2001, Georgia amended its defense of habitation statuteto allow for broader immunity for someone who uses deadly force

14. Id.

15. Id. In 2009, Ingle was convicted on all counts, including drug charges, and sentenced to eighteenyears in prison. Associated Press, Jury Convicts After No-Knock Police Search, WXVT 15, Apr. 15,

2009, http://www.wxvt.com/Global/story.asp?S=10191222&nav=menu1344_2. For more informationand discussion on topic, see Posting of Tiffney Forrester to Arkansas Blog, NLR Cops See VindicationUpdate, http://www.arktimes.com/blogs/arkansasblog/2009/04/nlr-cops-see-vindication.aspx (Apr. 16,2009); see also Justice for Tracy, http://www.justicefortracy.com (last visited Feb. 6,2010).

16. RADLEY BALKO, OVERKILL: THE RISE OF PARAMILITARY POLICE RAIDS IN AMERICA 43 (Cato

Institute 2006).17. Id. at 43-82. Specifically, Balko profiles seventy-four cases where the police got the wrong

address, id. at 43-63; fifteen cases where the police got the right address but innocent bystanders werekilled or injured, id. at 63-68; nine cases of death or injury to police officers, id. at 68-71; twenty-threecases where police used their tactics "unnecessarily and recklessly" on non-violent offenders, id. at 71-79; and ten cases of similar police recklessness that "defy easy categorization," id at 79-82. For aninteractive map of botched police raids, see Cato Institute, Botched Paramilitary Police Raids: AnEpidemic of "Isolated Incidents," http://www.cato.org/raidmap (last visited Feb. 6, 2010).

18. Jonsson, supra note 1; Harry R. Weber, 2 Officers Admit Crimes in Raid-Woman, 92, Slain inBotched 'No-Knock,' MEMPHIS COM. APPEAL (Tenn.), Apr. 27, 2007, at A7, available at 2007 WLNR8005661.

19. Jonsson, supra note I; see also discussion supra Part I.A.20. P. Luevonda Ross, The Transmogrification of Self-Defense by National Rifle Association-

Inspired Statutes: From the Doctrine of Retreat to the Right to Stand Your Ground, 35 S.U. L. REV. 1, 2,18(2007).

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2010) COPS OR ROBBERS? 587

tendon.,,14 Though Ingle did not hurt any of the officers, he was charged with, among other things, two felony counts of aggravated assault. 15

The two cases outlined above are not isolated incidents. 16 Radley Balko, a policy analyst for the Cato Institute, has profiled more than 130 cases of flawed (but not necessarily illegal) police raids that have resulted in serious humiliation, InJury, or death to innocent bystanders, non-violent offenders, and officers. 17 Moreover, according to criminologist Peter Kraska, the number of no-knock raids across the country jumped from 3,000 in 1981 to more than 50,000 in 2006. 18 With the deterioration of the "knock-andannounce" requirement, as described below, such no-knock raids are bound to increase. 19

At the same time, many states, including Georgia, have liberalized their self-defense statutes, providing private citizens with broad leeway in using deadly force to repel an attack, especially upon their homes.2o In 2001, Georgia amended its defense of habitation statute to allow for broader immunity for someone who uses deadly force

14. Id. 15. Id. In 2009, Ingle was convicted on all counts, including drug charges, and sentenced to eighteen

years in prison. Associated Press, Jury Convicts After No-Knock Police Search, WXVT IS, Apr. 15, 2009, http://www.wxvt.comlGlobal/story.asp?S= 1 0 191222&nav=rnenu 1344_2. For more information and discussion on topic, see Posting of Tiffney Forrester to Arkansas Blog, NLR Cops See Vindication Update, http://www.arktimes.comlblogs/arkansasblog/2009/04/nlr_cops_see _ vindication.aspx (Apr. 16, 2009); see also Justice for Tracy, http://www.justicefortracy.com (last visited Feb. 6,2010).

16. RADLEY BALKO, OVERKILL: THE RISE OF PARAMILITARY POLICE RAIDS IN AMERICA 43 (Cato Institute 2006).

17. Id. at 43-82. Specifically, Balko profiles seventy-four cases where the police got the wrong address, id. at 43-63; fifteen cases where the police got the right address but innocent bystanders were killed or injured, id. at 63-68; nine cases of death or injury to police officers, id. at 68-71; twenty-three cases where police used their tactics "unnecessarily and recklessly" on non-violent offenders, id. at 71-79; and ten cases of similar police recklessness that "defy easy categorization," id. at 79-82. For an interactive map of botched police raids, see Cato Institute, Botched Paramilitary Police Raids: An Epidemic of"lsolated Incidents," http://www.cato.org/raidmap (last visited Feb. 6,2010).

18. Jonsson, supra note 1; Harry R. Weber, 2 Officers Admit Crimes in Raid-Woman, 92, Slain in Botched 'No-Knock,' MEMPHIS COM. APPEAL (Tenn.), Apr. 27, 2007, at A7, available at 2007 WLNR 8005661.

19. Jonsson, supra note 1; see also discussion supra Part I.A. 20. P. Luevonda Ross, The Transmogrification of Self-Defense by National Rifle Association

Inspired Statutes: From the Doctrine of Retreat to the Right to Stand Your Ground, 35 S.U. L. REv. 1,2, 18 (2007).

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against a perceived intruder.21 According to Balko, this trend towardprivate self-defense is "dangerously at odds with the concept of no-knock search warrants. ' 22 As Justice Brennan acknowledged in Kerv. California, police "might be mistaken for prowlers and be shotdown by a fearful householder." 23

Though botched police raids, such as Johnston's, are certainly aproblem, most officers are law-abiding professionals who would dotheir best to avoid hurting harmless civilians.24 Yet with the declineof the knock-and-announce rule, it is easier than ever for police tolegally enter a home unannounced.25 This Note examines whether,under Georgia's defense of habitation statute, a home dweller canlawfully shoot at, and possibly kill, police officers executing a legalno-knock raid. Part I provides a brief overview of the decayingknock-and-announce doctrine and introduces Georgia's defense of

26habitation statute. Part II first delves into the text of the statute todetermine whether a no-knock entry by police must actually beunlawful or merely appear to the occupant as unlawful for theoccupant to be justified in responding with deadly force. 27 Thisstatutory analysis is followed by a discussion of relevant Georgiacase law, both old and new, exploring how courts have dealt withdeadly encounters between citizens and police.28 Finally, Part IIIproposes that the defense of habitation statute should be interpreted in

21. Robert Christian Rutlege, Vigilant or Vigilante? Procedure and Rationale for Immunity inDefense of Habitation and Defense of Property Under the Official Code of Georgia Annotated §§ 16-3-23, -24, -24.1, and -24.2, 59 MERCER L. REv. 629, 641-42 (2008); Derek E. Empie, Defenses toCriminal Prosecution: Change Provisions Relating to the Use of Force in the Defense of Habitations orResidences; Provide for Related Matters, 18 GA. ST. U. L. REv. 25, 25-29 (2001); see also infra PartII.A.3.

22. Koon, supra note 6; see also G. Todd Butler, Note, Recipe for Disaster: Analyzing the InterplayBetween the Castle Doctrine and the Knock-and-Announce Rule After Hudson v. Michigan, 27 MiSS. C.L. REv. 435, 451 (2008).

23. BALKO, supra note 16, at 31 (quoting Ker v. California, 374 U.S. 23, 58 (1963) (Brennan, J.,dissenting)).

24. See Hudson v. Michigan, 547 U.S. 586, 598-99 (2006) (describing the rise in the professionalismof police forces).

25. See discussion infra Part I.A.26. See infra Part 1.27. See infra Part B.A.28. See infra Part I.B-C.

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against a perceived intruder.21 According to Balko, this trend toward private self-defense is "dangerously at odds with the concept of noknock search warrants.,,22 As Justice Brennan acknowledged in Ker v. California, police "might be mistaken for prowlers and be shot down by a fearful householder.',23

Though botched police raids, such as Johnston's, are certainly a problem, most officers are law-abiding professionals who would do their best to avoid hurting harmless civilians?4 Yet with the decline of the knock-and-announce rule, it is easier than ever for police to legally enter a home unannounced?5 This Note examines whether, under Georgia's defense of habitation statute, a home dweller can lawfully shoot at, and possibly kill, police officers executing a legal no-knock raid. Part I provides a brief overview of the decaying knock-and-announce doctrine and introduces Georgia's defense of habitation statute.26 Part II first delves into the text of the statute to determine whether a no-knock entry by police must actually be unlawful or merely appear to the occupant as unlawful for the occupant to be justified in responding with deadly force. 27 This statutory analysis is followed by a discussion of relevant Georgia case law, both old and new, exploring how courts have dealt with deadly encounters between citizens and police.28 Finally, Part III proposes that the defense of habitation statute should be interpreted in

21. Robert Christian Rutlege, Vigilant or Vigilante? Procedure and Rationale for Immunity in Defense of Habitation and Defense of Property Under the Official Code of Georgia Annotated §§ 16-3-23, -24, -24.1, and -24.2, 59 MERCER L. REv. 629, 641-42 (2008); Derek E. Empie, Defenses to Criminal Prosecution: Change Provisions Relating to the Use of Force in the Defense of Habitations or Residences; Provide for Related Matters, 18 GA. ST. U. L. REv. 25, 25-29 (2001); see also infra Part II.A.3.

22. Koon, supra note 6; see also G. Todd Butler, Note, Recipefor Disaster: Analyzing the 1nterplay Between the Castle Doctrine and the Knock-and-Announce Rule After Hudson v. Michigan, 27 MISS. C. L. REv. 435, 451 (2008).

23. BALKO, supra note 16, at 31 (quoting Ker v. California, 374 U.S. 23,58 (1963) (Brennan, J., dissenting».

24. See Hudson v. Michigan, 547 U.S. 586,598-99 (2006) (describing the rise in the professionalism of police forces).

25. See discussion infra Part LA. 26. See infra Part I. 27. See infra Part II.A. 28. See infra Part II.B-C.

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COPS OR ROBBERS?

favor of the occupant, granting immunity to one who mistakenly, butreasonably, shoots at police officers during a legal no-knock entry.29

I. BACKGROUND: THE NEED TO KNOCK AND DEFENSE OF HABITATION

The knock-and-announce requirement, written into the GeorgiaCode under section 17-5-27,30 has been significantly watered down,paving the way for an increase in no-knock entries.31 But Georgia'sdefense of habitation statute may still provide plenty of protection tofrightened home dwellers.32

A. The Knock-and-Announce Rule: Fact or Fiction?

The knock-and-announce rule, as the name suggests, requiresofficers to knock and announce themselves before breaking intosomeone's home to execute a search or arrest warrant.33 It is notdifficult to see why such a requirement makes sense. 34 In Hudson v.Michigan, Justice Scalia laid out the basic interests protected by theknock-and-announce rule.35 First and foremost is human life---"anunannounced entry may provoke violence in supposed self-defenseby the surprised resident." 36 The second interest is to protectproperty, such as the door itself, from damage by the police.37 After

29. See infra Part l.30. The statute provides, in part:

All necessary and reasonable force may be used to effect an entry into any building orproperty or part thereof to execute a search warrant if, after verbal notice or an attempt ingood faith to give verbal notice by the officer directed to execute the same of hisauthority and purpose ....

GA. CODE ANN. § 17-5-27 (2008) (emphasis added).

31. BALKO, supra note 16, at 5; see also Mark Josephson, Supreme Court Review, FourthAmendment-Must Police Knock and Announce Themselves Before Kicking in the Door of a House?, 86J. CRIM. L. & CRIMINOLOGY 1229, 1262-63 (1996). See generally Brian S. Uholik, Comment, Who

Cares If It's Open?: Hudson v. Michigan and the United States Supreme Court's Evisceration of theKnock and Announce Rule, 112 PENN ST. L. REv. 261,277-79,291 (2007).

32. See GA. CODE ANN. § 16-3-23 (2007); see also discussion infra Part II.A.33. 18 U.S.C. § 3109 (2006); GA. CODE ANN. § 17-5-27 (2008).

34. See generally Hudson v. Michigan, 547 U.S. 586, 593-94 (2006) (describing the reasons behindthe knock-and-announce requirement).

35. Id. at 594 (holding that concealment of incriminating evidence is not an interest protected by theknock-and-announce requirement).

36. Id.37. Id.

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favor of the occupant, granting immunity to one who mistakenly, but reasonably, shoots at police officers during a legal no-knock entry?9

I. BACKGROUND: THE NEED TO KNOCK AND DEFENSE OF HABITATION

The knock-and-announce requirement, written into the Georgia Code under section 17-5_27,30 has been significantly watered down, paving the way for an increase in no-knock entries.31 But Georgia's defense of habitation statute may still provide plenty of protection to frightened home dwellers.32

A. The Knock-and-Announce Rule: Fact or Fiction?

The knock-and-announce rule, as the name suggests, requires officers to knock and announce themselves before breaking into someone's home to execute a search or arrest warrant.33 It is not difficult to see why such a requirement makes sense.34 In Hudson v. Michigan, Justice Scalia laid out the basic interests protected by the knock-and-announce rule.35 First and foremost is human life-"an unannounced entry may provoke violence in supposed self-defense by the surprised resident.,,36 The second interest is to protect property, such as the door itself, from damage by the police.37 After

29. See infra Part III. 30. The statute provides, in part:

All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant if, after verbal notice or an attempt in good faith to give verbal notice by the officer directed to execute the same of his authority and purpose ....

GA. CODE ANN. § 17-5-27 (2008) (emphasis added). 31. BALKO, supra note 16, at 5; see also Mark Josephson, Supreme Court Review, Fourth

Amendment-Must Police Knock and Announce Themselves Before Kicking in the Door of a House?, 86 J. CRIM. L. & CRIMINOLOGY 1229, 1262--{j3 (1996). See generally Brian S. Uholik, Comment, Who Cares If It's Open?: Hudson v. Michigan and the United States Supreme Court's Evisceration of the Knock and Announce Rule, 112 PENN ST. L. REv. 261, 277-79, 291 (2007).

32. See GA. CODE ANN. § 16-3-23 (2007); see also discussion infra Part II.A. 33. 18 U.S.C. § 3109 (2006); GA. CODE ANN. § 17-5-27 (2008). 34. See generally Hudson v. Michigan, 547 U.S. 586, 593-94 (2006) (describing the reasons behind

the knock-and-announce requirement). 35. !d. at 594 (holding that concealment of incriminating evidence is not an interest protected by the

knock-and-announce requirement). 36. !d. 37. Id.

5




all, the police should give residents a chance to comply with the lawand peacefully let the officers inside their homes. 38 Finally, knockingand announcing protects people's privacy and dignity by allowingthem to collect themselves-by putting on their clothes, forexample-before answering the door.39

Given the importance of the interests protected by the knock-and-announce requirement, one should not be surprised that the rule is an"ancient one,"40 long entrenched in the Anglo-American legaltradition.4 1 The principle was first judicially recognized in Britain in160342 and has been part of American common law since thefounding of the nation.43 The federal government codified the rule in1917, and a majority of states, including Georgia, have done so aswell.44 Moreover, the Supreme Court recognized the knock-and-announce principle as a "command" of the Fourth Amendment. 45 Thelong history and prevalence of the knock-and-announce doctrineshould illustrate how much society values it. 46 Although the commonlaw did not require announcement in all circumstances, 47 it maynonetheless be surprising to learn just how easily the police can burstinto a home unannounced.48

38. Id.39. Id.40. Hudson, 547 U.S. at 589.41. Wilson v. Arkansas, 514 U.S. 927, 934 (1995) (citing Miller v. United States, 357 U.S. 301, 313

(1958)).42. Josephson, supra note 31, at 1235 (citing Semayne's Case, (1603) 77 Eng. Rep. 194, 195-96

(K.B.)). In Wilson v. Arkansas, Justice Thomas suggests that the rule may actually go back much further,originating from a statute enacted in 1275. Wilson, 514 U.S. at 932 n.2.

43. Josephson, supra note 31, at 1237-38.44. Id. at 1239. The federal knock-and-announce requirement is codified in 18 U.S.C. § 3109 (2006);

Georgia's may be found in GA. CODE ANN. § 17-5-27 (2008).45. Hudson, 547 U.S. at 589 (citing Wilson, 514 U.S. at 934). The court in Wilson held that the

knock-and-announce principle is "an element of the reasonableness inquiry under the FourthAmendment." Wilson, 514 U.S. at 934. The court also noted that the announcement requirement is not a"rigid rule... that ignores countervailing law enforcement interests." Id.

46. E.g., Uholik, supra note 31, at 292.47. Wilson, 514 U.S. at 935.48. See Hudson, 547 U.S. at 589-90 (holding that even if the police violated the knock-and-

announce requirement, evidence gathered in the subsequent search is admissible in court); see alsoJosephson, supra note 31, at 1262-63. See generally Uholik, supra note 31, at 291.

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590 GEORGIA STATE UNIVERSITY LAW REVIEW (Vol. 26:2

all, the police should give residents a chance to comply with the law and peacefully let the officers inside their homes.38 Finally, knocking and announcing protects people's privacy and dignity by allowing them to collect themselves-by putting on their clothes, for example-before answering the door.39

Given the importance of the interests protected by the knock-andannounce requirement, one should not be surprised that the rule is an "ancient one,'.40 long entrenched in the Anglo-American legal tradition.41 The principle was first judicially recognized in Britain in 160342 and has been part of American common law since the founding of the nation.43 The federal government codified the rule in 1917, and a majority of states, including Georgia, have done so as well.44 Moreover, the Supreme Court recognized the knock-andannounce principle as a "command" ofthe Fourth Amendment.45 The long history and prevalence of the knock-and-announce doctrine should illustrate how much society values it.46 Although the common law did not require announcement in all circumstances,47 it may nonetheless be surprising to learn just how easily the police can burst into a home unannounced.48

38. Id. 39. Id. 40. Hudson, 547 U.S. at 589. 41. Wilson v. Arkansas, 514 U.S. 927, 934 (1995) (citing Miller v. United States, 357 U.S. 301, 313

(1958». 42. Josephson, supra note 31, at 1235 (citing Semayne's Case, (1603) 77 Eng. Rep. 194, 195-96

(K.B.». In Wilson v. Arkansas, Justice Thomas suggests that the rule may actually go back much further, originating from a statute enacted in 1275. Wilson, 514 U.S. at 932 n.2.

43. Josephson, supra note 31, at 1237-38. 44. Id. at 1239. The federal knock-and-announce requirement is codified in 18 U.S.C. § 3109 (2006);

Georgia's may be found in GA. CODE ANN. § 17-5-27 (2008). 45. Hudson, 547 U.S. at 589 (citing Wilson, 514 U.S. at 934). The court in Wilson held that the

knock-and·announce principle is "an element of the reasonableness inquiry under the Fourth Amendment." Wilson, 514 U.S. at 934. The court also noted that the announcement requirement is not a "rigid rule ... that ignores countervailing law enforcement interests." Id.

46. E.g., Uholik, supra note 31, at 292. 47. Wilson, 514 U.S. at 935. 48. See Hudson, 547 U.S. at 589-90 (holding that even if the police violated the knock-and

announce requirement, evidence gathered in the subsequent search is admissible in court); see also Josephson, supra note 31, at 1262--63. See generally Uholik, supra note 31, at 291.

6



COPS OR ROBBERS?

To illustrate, in Hudson v. Michigan, Justice Scalia, speaking forthe Court, succinctly described the flexibility and vagueness of theknock-and-announce requirement:

[There are] many situations in which it is not necessary to knockand announce. It is not necessary when 'circumstances presen[t]a threat of physical violence,' or if there is 'reason to believe thatevidence would likely be destroyed if advance notice wasgiven,' 49 or if knocking and announcing would be 'futile.' 50 Werequire only that police 'have a reasonable suspicion.., underthe particular circumstances' that one of these grounds for failingto knock and announce exists, and we have acknowledged that'[t]his showing is not high.' 5'

The Court in Hudson held that even if police unlawfully fail toannounce themselves, the evidence seized in the ensuing search neednot be suppressed at trial because evidence concealment is not one ofthe interests protected by the knock-and-announce rule.52 Thus, theCourt "destroy[ed] the strongest legal incentive to comply with theConstitution's knock-and-announce requirement." 53

In Georgia, the knock-and-announce statute mandates that anofficer give "verbal notice or an attempt in good faith to give verbalnotice" before breaking down the door.54 However, "a warrant canauthorize a 'no-knock' entry where police . . . demonstrate 'areasonable suspicion that knocking and announcing their presence...would be dangerous or futile, or that it would inhibit the effectiveinvestigation of the crime by, for example, allowing the destructionof the evidence.' ' 55 In line with Hudson, this showing is "not high": 56

49. Hudson, 547 U.S. at 589 (alteration in original) (quoting Wilson, 514 U.S. at 936).50. Id. at 589-90 (quoting Richards v. Wisconsin, 520 U.S. 385, 394 (1997)).51. Id. at 590 (alteration in original) (quoting Richards, 520 U.S. at 394).52. Id. at 594.53. Id. at 605 (Breyer, J., dissenting).54. GA. CODE ANN. § 17-5-27 (2008).55. Jackson v. State, 634 S.E.2d 846, 848 (Ga. Ct. App. 2006) (quoting State v. Williams, 621

S.E.2d 581, 583 (Ga. Ct. App. 2005)).56. Poole v. State, 596 S.E.2d 420, 424 (Ga. Ct. App. 2004) (quoting Hudson, 547 U.S. at 590).

20101



To illustrate, in Hudson v. Michigan, Justice Scalia, speaking for the Court, succinctly described the flexibility and vagueness of the knock -and-announce requirement:

[There are] many situations in which it is not necessary to knock and announce. It is not necessary when 'circumstances presen[t] a threat of physical violence,' or if there is 'reason to believe that evidence would likely be destroyed if advance notice was given,'49 or if knocking and announcing would be 'futile.'so We

require only that police 'have a reasonable suspicion ... under the particular circumstances' that one of these grounds for failing to knock and announce exists, and we have acknowledged that '[t]his showing is not high.'SI

The Court in Hudson held that even if police unlawfully fail to announce themselves, the evidence seized in the ensuing search need not be suppressed at trial because evidence concealment is not one of the interests protected by the knock-and-announce rule.52 Thus, the Court "destroy[ ed] the strongest legal incentive to comply with the Constitution's knock-and-announce requirement.,,53

In Georgia, the knock-and-announce statute mandates that an officer give "verbal notice or an attempt in good faith to give verbal notice" before breaking down the door.54 However, "a warrant can authorize a 'no-knock' entry where police ... demonstrate 'a reasonable suspicion that knocking and announcing their presence ... would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of the evidence.",55 In line with Hudson, this showing is "not high,,:56

49. Hudson, 547 U.S. at 589 (alteration in original) (quoting Wilson, 514 U.S. at 936). 50. Id. at 589-90 (quoting Richards v. Wisconsin, 520 U.S. 385,394 (1997». 51. Id. at 590 (alteration in original) (quoting Richards, 520 U.S. at 394). 52. Id. at 594. 53. Id. at 605 (Breyer, J., dissenting). 54. GA. CODE ANN. § 17-5-27 (2008). 55. Jackson v. State, 634 S.E.2d 846, 848 (Ga. Ct. App. 2006) (quoting State v. Williams, 621

S.E.2d 581, 583 (Ga. Ct. App. 2005». 56. Poole v. State, 596 S.E.2d 420, 424 (Ga. Ct. App. 2004) (quoting Hudson, 547 U.S. at 590).

7




To establish reasonable grounds [for a no-knock warrant], theofficer does not have to show specific information that wouldlead officers to conclude that they would be harmed if theyannounced their authority and purpose; it is sufficient if theinformation... would lead to the reasonable conclusion that theofficers could be harmed.... .

For example, in Hunter v. State, a no-knock warrant was authorizedwhere an informant told officers that automatic weapons may befound in the house. 58 In State v. Cochran, a no-knock warrant wasauthorized based on an informant's assertion that Cochran carriedfirearms and "will not go down without a fight.",59 Moreover, evenabsent a no-knock warrant, an unannounced entry would still bejustified by the presence of exigent circumstances, defined as"'reasonable grounds to believe that forewarning would either greatlyincrease [officers'] peril or lead to the immediate destruction of theevidence.' 60 Thus, police violations of the knock-and-announceprinciple are only part of the danger because it is relatively easy for

- 61officers to legally dispense with this requirement.

57. Cook v. State, 565 S.E.2d 896, 898 (Ga. Ct. App. 2002); see also State v. Cochran, 620 S.E.2d444,447 (Ga. Ct. App. 2005).

58. Hunter v. State, 400 S.E.2d 641,644 (Ga. Ct. App. 1990).59. Cochran, 620 S.E.2d at 447. But see Poole, 596 S.E.2d at 423-24 (finding no exigent

circumstances justifying a no-knock entry where police decided to break into the house unannouncedafter a person inside the residence looked out the window and went back inside).

60. Poole, 596 S.E.2d at 422 (quoting State v. Smith, 467 S.E.2d 221, 222 (Ga. Ct. App. 1996)); seealso Martin v. State, 302 S.E.2d 614, 615 (Ga. Ct. App. 1983); Scull v. State, 178 S.E.2d 720, 722 (Ga.Ct. App. 1970).

61. BALKO, supra note 16, at 5, 30, 31. Balko argues that the knock-and-announce requirement is"commonly either circumvented through court-sanctioned loop-holes, ignored completely with littleconsequence, or only ceremoniously observed, with a knock and announcement unlikely to be noticedby anyone inside." Id. at 5. In 2008, Georgia Senate passed a bill that would have made it tougher forpolice to get no-knock search warrants. Jim Galloway & Bob Kemper, Political Insider, ATLANTA J.-CONST., Mar. 11, 2008, available at 2008 WLNR 5381369. However, the bill never made it past theHouse and into law. See SB 259, as passed Senate, 2008 Ga. Gen. Assem., available athttp://www.legis.ga.govlegis/2007_08/fultext/sb259.htm. It is unclear how such legislation wouldaffect warrantless no-knock entries made due to "exigent circumstances." See supra text accompanyingnote 60.

[Vol. 26:2



To establish reasonable grounds [for a no-knock warrant], the officer does not have to show specific information that would lead officers to conclude that they would be harmed if they announced their authority and purpose; it is sufficient if the information ... would lead to the reasonable conclusion that the officers could be harmed .... 57

For example, in Hunter v. State, a no-knock warrant was authorized where an informant told officers that automatic weapons may be found in the house. 58 In State v. Cochran, a no-knock warrant was authorized based on an informant's assertion that Cochran carried fireanns and "will not go down without a fight. ,,59 Moreover, even absent a no-knock warrant, an unannounced entry would still be justified by the presence of exigent circumstances, defined as '''reasonable grounds to believe that forewarning would either greatly increase [officers '] peril or lead to the immediate destruction of the evidence. ",60 Thus, police violations of the knock-and-announce principle are only part of the danger because it is relatively easy for officers to legally dispense with this requirement.61

57. Cook v. State, 565 S.E.2d 896, 898 (Ga. Ct. App. 2002); see also State v. Cochran, 620 S.E.2d 444,447 (Ga. Ct. App. 2005).

58. Hunter v. State, 400 S.E.2d 641, 644 (Ga. Ct. App. 1990). 59. Cochran, 620 S.E.2d at 447. But see Poole, 596 S.E.2d at 423-24 (finding no exigent

circumstances justifYing a no-knock entry where police decided to break into the house unannounced after a person inside the residence looked out the window and went back inside).

60. Poole, 596 S.E.2d at 422 (quoting State v. Smith, 467 S.E.2d 221, 222 (Ga. Ct. App. 1996)); see also Martin v. State, 302 S.E.2d 614, 615 (Ga. Ct. App. 1983); Scull v. State, 178 S.E.2d 720,722 (Ga. Ct. App. 1970).

61. BALKO, supra note 16, at 5, 30, 31. Balko argues that the knock-and-announce requirement is "commonly either circumvented through court-sanctioned loop-holes, ignored completely with little consequence, or only ceremoniously observed, with a knock and announcement unlikely to be noticed by anyone inside." Id. at 5. In 2008, Georgia Senate passed a bill that would have made it tougher for police to get no-knock search warrants. Jim Galloway & Bob Kemper, Political Insider, ATLANTA J.CONST., Mar. 11,2008, available at 2008 WLNR 5381369. However, the bill never made it past the House and into law. See SB 259, as passed Senate, 2008 Ga. Gen. Assem., available at http://www.legis.ga.gov/legiS/2007_08/fulltextlsb259.htm.Itis unclear how such legislation would affect warrantless no-knock entries made due to "exigent circumstances." See supra text accompanying note 60.

8



COPS OR ROBBERS?

B. Defending Your Home in Georgia

The Georgia defense of habitation statute, found in section 16-3-23of the Georgia Code, allows persons to use deadly force in defendingtheir homes against intruders:62

A person is justified in threatening or using force against anotherwhen and to the extent that he or she reasonably believes thatsuch threat or force is necessary to prevent or terminate suchother's unlawful entry into or attack upon a habitation; however,such person is justified in the use of force which is intended orlikely to cause death or great bodily harm only if:(1) The entry is made or attempted in a violent and tumultuousmanner and he or she reasonably believes that the entry isattempted or made for the purpose of assaulting or offeringpersonal violence to any person dwelling or being therein andthat such force is necessary to prevent the assault or offer ofpersonal violence;(2) That force is used against another person who is not amember of the family or household and who unlawfully andforcibly enters or has unlawfully and forcibly entered theresidence and the person using such force knew or had reason tobelieve that an unlawful and forcible entry occurred; or(3) The person using such force reasonably believes that theentry is made or attempted for the purpose of committing afelony therein and that such force is necessary to prevent thecommission of the felony.63

Whoever uses deadly force under this statute is immune fromprosecution. 64 So is defense of habitation the only way to justifykilling an intruder?

62. GA. CODE ANN. § 16-3-23 (2007).63. Id. Subsection (2) of the statute, referred to as the "Make My Day Bill," was added in 2001.

Empie, supra note 21, at 25, 28-29. For discussion of the amendment, see infra Part II.A.3.64. GA. CODE ANN. § 16-3-24.2 (2007); Fair v. State, 664 S.E.2d 227, 230 (Ga. 2008) (citing Boggs

v. State, 581 S.E.2d 722, 723 (Ga. Ct. App. 2003)) (holding that immunity is determined as a matter oflaw before the start of the trial). Section 16-3-24.2 provides:

20101



B. Defending Your Home in Georgia

The Georgia defense of habitation statute, found in section 16-3-23 of the Georgia Code, allows persons to use deadly force in defending their homes against intruders:62

A person is justified in threatening or using force against another

when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation; however,

such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:

(1) The entry is made or attempted in a violent and tumultuous manner and he or she 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 and

that such force is necessary to prevent the assault or offer of personal violence;

(2) That force is used against another person who is not a member of the family or household and who unlawfully and

forcibly enters or has unlawfully and forcibly entered the

residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or

(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a

felony therein and that such force is necessary to prevent the commission of the felony.63

Whoever uses deadly force under this statute is immune from prosecution.64 So is defense of habitation the only way to justify killing an intruder?

62. GA. CODE ANN. § 16-3-23 (2007). 63. [d. Subsection (2) of the statute, referred to as the "Make My Day Bill," was added in 2001.

Empie, supra note 21, at 25, 28-29. For discussion of the amendment, see infra Part II.A.3. 64. GA. CODE ANN. § 16-3-24.2 (2007); Fair v. State, 664 S.E.2d 227, 230 (Ga. 2008) (citing Boggs

v. State, 581 S.E.2d 722,723 (Ga. Ct. App. 2003)) (holding that immunity is determined as a matter of law before the start of the trial). Section 16-3-24.2 provides:

9




Actually, two other similar statutes may grant immunity tooccupants who use deadly force against intruders. 65 Section 16-3-24

66addresses the defense of property other than habitation, and section

16-3-21 addresses general self-defense. 6 7 However, the defense ofhabitation statute, section 16-3-23, provides broader protection than

the other immunity statutes. This is partly because subsection (2) ofsection 16-3-23 "may not require the defender of habitation to havean objectively reasonable belief' that the use of force is necessary.69

Moreover, the defense of habitation statute may justify the use ofdeadly force "even if that amount of force was not necessarilyrequired to repel [an] attack.",70 Thus, in any case where a defendantis accused of shooting a police officer during a raid, it is crucial toplead defense of habitation under section 16-3-23.71

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 theuse of deadly force, such person utilizes a weapon the carrying or possession of which isunlawful by such person under Part 2 or 3 of Article 4 of Chapter II of this title.

65. GA. CODE ANN. § 16-3-21, -24, -24.2 (2007); Rutlege, supra note 2 1, at 630-33.66. Section 16-3-24(b) provides:

The use of force which is intended or likely to cause death or great bodily harm toprevent trespass on or other tortious or criminal interference with real property other thana habitation or personal property is not justified unless the person using such forcereasonably believes that it is necessary to prevent the commission of a forcible felony.

67. Section 16-3-21(a) provides:A person is justified in threatening or using force against another when and to the extentthat he or she reasonably believes that such threat or force is necessary to defend himselfor herself or a third person against such other's imminent use of unlawful force; however,except as provided in Code Section 16-3-23, a person is justified in using force which isintended or likely to cause death or great bodily harm only if he or she reasonablybelieves that such force is necessary to prevent death or great bodily injury to himself orherself or a third person or to prevent the commission of a forcible felony.

68. Rutlege, supra note 21, at 631.69. Id.70. Benham v. State, 591 S.E.2d 824, 826 (Ga. 2004). Compare GA. CODE ANN. § 16-3-23 (2007),

with § 16-3-2 1. But see Patel v. State, 620 S.E.2d 343, 348 (Ga. 2005) (Carley, J., concurring) ("Benhamshould be cautiously and sensibly limited to its actual holding by the express terms of [section] 16-3-23 ....").

71. See Benham, 591 S.E.2d at 826 (finding ineffective assistance of counsel for failing to pleadimmunity under the defense of habitation statute). All the immunity statutes described above allow thedefendant to avoid trial altogether, thereby conferring "a far greater right than any encompassed by anaffirmative defense." Bunn v. State, 667 S.E.2d 605, 608 (Ga. 2008). To avoid trial, the defendant mustprove immunity by a preponderance of the evidence. Id. Failing that, the defendant may still assert anaffirmative defense at trial based on the immunity statutes. Id. In that case, the prosecution mustdisprove the defense beyond a reasonable doubt. Id.

[Vol. 26:2



Actually, two other similar statutes may grant immunity to

occupants who use deadly force against intruders.65

Section 16-3-24 addresses the defense of property other than habitation,66 and section

16-3-21 addresses general self-defense.67

However, the defense of

habitation statute, section 16-3-23, provides broader protection than

the other immunity statutes.68

This is partly because subsection (2) of

section 16-3-23 "may not require the defender of habitation to have

an objectively reasonable belief' that the use of force is necessary.69

Moreover, the defense of habitation statute may justify the use of

deadly force "even if that amount of force was not necessarily

required to repel [an] attack.,,70 Thus, in any case where a defendant

is accused of shooting a police officer during a raid, it is crucial to

plead defense of habitation under section 16-3-23.71

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 shaH 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 or 3 of Article 4 of Chapter 11 of this title.

65. GA. CODE ANN. § 16-3-21, -24, -24.2 (2007); Rutlege, supra note 21, at 630-33. 66. Section 16-3-24(b) provides:

The use of force which is intended or likely to cause death or great bodily harm to prevent trespass on or other tortious or criminal interference with real property other than a habitation or personal property is not justified unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.

67. Section 16-3-2 I (a) provides: A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other's imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

68. Rutlege, supra note 21, at 63 I. 69. Id. 70. Benham v. State, 591 S.E.2d 824, 826 (Ga. 2004). Compare GA. CODE ANN. § 16-3-23 (2007),

with § 16-3-21. But see Patel v. State, 620 S.E.2d 343, 348 (Ga. 2005) (Carley, J., concurring) ("Benham should be cautiously and sensibly limited to its actual holding by the express terms of [section] 16-3-23 .... ").

71. See Benham, 591 S.E.2d at 826 (finding ineffective assistance of counsel for failing to plead immunity under the defense of habitation statute). All the immunity statutes described above aHow the defendant to avoid trial altogether, thereby conferring "a far greater right than any encompassed by an affirmative defense." Buon v. State, 667 S.E.2d 605, 608 (Ga. 2008). To avoid trial, the defendant must prove immunity by a preponderance of the evidence. Id. Failing that, the defendant may stiH assert an affirmative defense at trial based on the immunity statutes. Id. In that case, the prosecution must disprove the defense beyond a reasonable doubt. Id.

10



COPS OR ROBBERS?

II. ANALYSIS: EXPLORING THE STATUTE AND

SURROUNDING CASE LAW

The main paragraph of section 16-3-23 states that persons may usedeadly force if they reasonably believe that it is necessary to preventan "unlawful entry into or attack upon a habitation." 72 The first issuein applying the statute is to determine whether the entry or attack on ahabitation must actually be unlawful, or if instead the occupant mustonly reasonably believe that the entry or attack is unlawful.73 Afterall, if the entry must actually be unlawful, then a home occupant whoshoots an officer during a raid would not be able to plead defense ofhabitation as long as the officer had a warrant and otherwisecomplied with the law.74 Second, it is helpful to see how Georgiacourts have historically dealt with deadly confrontations betweenpolice and citizens, and whether officers enjoyed any specialprotection under the law.75 Finally, this Part will explore someGeorgia cases that have actually applied the defense of habitationstatute to police-civilian encounters.76

72. GA. CODE ANN. § 16-3-23 (2007) (emphasis added).73. Many no-knock raids that result in unnecessary deaths are lawfully (though not necessarily

prudently) carried out by police. See BALKO, supra note 16, at 71-79. For an example of a recentGeorgia case, see Fair v. State, 664 S.E.2d 227, 233-37 (Ga. 2008) (finding that the warrant, manner ofentry, and search of the house were valid where the defendants shot and killed an officer thinking theywere being attacked). In his treatise on Georgia criminal offenses and defenses, Robert Cleary states that"[flor the defense of habitation to be applicable, it is essential that the entry defended against beunlawful." ROBERT E. CLEARY, JR., DI 7 KURTZ CRIMINAL OFFENSES AND DEFENSES IN GEORGIA, at IV(2008). However, the cases Cleary cites for this proposition are not so clear-cut. See id. at n.34. The twomost relevant cases cited are Leach v. State, 239 S.E.2d 177 (Ga. Ct. App. 1977) and Washington v.State, 263 S.E.2d 152 (Ga. 1980). CLEARY, supra, at nn.35-36. These two cases are discussed in detailinfra Part B.C.

74. See, e.g., State v. Gardiner, 814 P.2d 568, 576 (Utah 1991). The court in Gardiner concluded, indicta, that "the legislature intended [the defense of habitation statute] to exclude peace officers acting inthe course of their duties." Id. The court actually held that the defense of habitation statute did not applybecause the place allegedly defended was not a habitation. Id. at 575. Utah's defense of habitationstatute is similar to Georgia's. Compare UTAH CODE ANN. § 76-2-405 (2004), with GA. CODE ANN.§ 16-3-23 (2007).

75. See discussion infra Part II.B.76. See discussion infra Part II.C.

20101


2010) COPS OR ROBBERS?

II. ANALYSIS: EXPLORING THE STATUTE AND

SURROUNDING CASE LAW

595

The main paragraph of section 16-3-23 states that persons may use deadly force if they reasonably believe that it is necessary to prevent an "unlawful entry into or attack upon a habitation.,,72 The first issue in applying the statute is to determine whether the entry or attack on a habitation must actually be unlawful, or if instead the occupant must only reasonably believe that the entry or attack is unlawful.73 After all, if the entry must actually be unlawful, then a home occupant who shoots an officer during a raid would not be able to plead defense of habitation as long as the officer had a warrant and otherwise complied with the law.74 Second, it is helpful to see how Georgia courts have historically dealt with deadly confrontations between police and citizens, and whether officers enjoyed any special protection under the law.75 Finally, this Part will explore some Georgia cases that have actually applied the defense of habitation statute to police-civilian encounters. 76

72. GA. CODE ANN. § 16-3-23 (2007) (emphasis added). 73. Many no-knock raids that result in unnecessary deaths are lawfully (though not necessarily

prudently) carried out by police. See BALKO, supra note 16, at 7\-79. For an example of a recent Georgia case, see Fair v. State, 664 S.E.2d 227, 233-37 (Ga. 2008) (finding that the warrant, manner of entry, and search of the house were valid where the defendants shot and killed an officer thinking they were being attacked). In his treatise on Georgia criminal offenses and defenses, Robert Cleary states that "[f]or the defense of habitation to be applicable, it is essential that the entry defended against be unlawful." ROBERT E. CLEARY, JR., 017 KURTZ CRIMINAL OFFENSES AND DEFENSES IN GEORGIA, at IV (2008). However, the cases Cleary cites for this proposition are not so clear-cut. See id at n.34. The two most relevant cases cited are Leach v. State, 239 S.E.2d 177 (Ga. Ct. App. 1977) and Washington v. State, 263 S.E.2d 152 (Ga. 1980). CLEARY, supra, at nn.35-36. These two cases are discussed in detail infra Part II.C.

74. See, e.g., State v. Gardiner, 814 P.2d 568, 576 (Utah 1991). The court in Gardiner concluded, in dicta, that "the legislature intended [the defense of habitation statute 1 to exclude peace officers acting in the course of their duties." Id. The court actually held that the defense of habitation statute did not apply because the place allegedly defended was not a habitation. /d. at 575. Utah's defense of habitation statute is similar to Georgia'S. Compare UTAH CODE ANN. § 76-2-405 (2004), with GA. CODE ANN. § 16-3-23 (2007).

75. See discussion infra Part II.B. 76. See discussion infra Part II.C.

11




A. Letter and Spirit of the Law

The actual language of the statute is the most important factor in itsinterpretation. 77 In decoding section 16-3-23, this Note explores thewording of the text, cases that have interpreted the language, andlegislative history.7 8

1. Breaking Down the Text

First, it is important to look at the common-sense grammaticalstructure of the text.79 Looking at the statute, one can ask whatjustifies the use of force? The answer is "reasonable belief that.... ,80 Logically, reasonable belief qualifies the rest of the sentenceafter the word that.8 1 If so, then reasonable belief also qualifiesunlawful entry, allowing a person to use force merely on reasonablebelief that the entry is unlawful.82 But even if unlawful entry is notqualified by reasonable belief, it is possible that the second clause,after the first semi-colon ("however, such person is justified in theuse of [deadly] force . . . only if. . .,,83), is a completely separatestatement explaining when someone can use deadly force-astatement that is unqualified by the previous clause dealing with theuse of non-deadly physical force. 84 Although the addition of the wordonly to the second clause makes it more restrictive, the restriction

77. LINDA D. JELLUM & DAVID CHARLES HRICIK, MODERN STATUTORY INTERPRETATION:

PROBLEMS, THEORIES, AND LAWYERING STRATEGIES 7, 8 (2006); see also NORMAN J. SINGER & J.D.SHAMBIE SINGER, 2A SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 46:1 (7th ed. 2008)

(discussing the plain meaning rule).78. See generally SINGER & SINGER, supra note 77, § 45 (discussing criteria for statutory

interpretation). There are other ways to interpret a statute, such as by reference to statutes on othersubjects, id. § 53, or similar statutes of other states, id. § 52, but such broad and comprehensive analysisis beyond the purview of this note.

79. See id. § 47:1 (discussing textual construction of statutes). However, "[a] legislature is notcompelled by any superior force to obey the rules of grammar and composition." Id.

80. GA. CODE ANN. § 16-3-23 (2007).81. Interview with Doug Ramseur, Senior Staff Attorney, Office of the Ga. Capital Defender,

Atlanta, Ga. (Oct. 23, 2008) [hereinafter Ramseur Interview].82. Id.83. GA. CODE ANN. § 16-3-23 (2007) (emphasis added).84. Id.; see also Ramseur Interview, supra note 81.

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A. Letter and Spirit of the Law

The actual language of the statute is the most important factor in its interpretation.77 In decoding section 16-3-23, this Note explores the wording of the text, cases that have interpreted the language, and legislative history. 78

1. Breaking Down the Text

First, it is important to look at the common-sense grammatical structure of the text. 79 Looking at the statute, one can ask what justifies the use of force? The answer is "reasonable belief that •..• ,,80 Logically, reasonable belief qualifies the rest of the sentence after the word that. 81 If so, then reasonable belief also qualifies unlawful entry, allowing a person to use force merely on reasonable belief that the entry is unlawful. 82 But even if unlawful entry is not qualified by reasonable belief, it is possible that the second clause, after the first semi-colon ("however, such person is justified in the use of [deadly] force ... only if ... ,,83), is a completely separate statement explaining when someone can use deadly force-a statement that is unqualified by the previous clause dealing with the use of non-deadly physical force. 84 Although the addition of the word only to the second clause makes it more restrictive, the restriction

77. LINDA D. JELLUM & DAVID CHARLES HRICIK, MODERN STATUTORY INTERPRETATION: PROBLEMS, THEORIES, AND LAWYERING STRATEGIES 7, 8 (2006); see also NORMAN J. SINGER & J.D. SHAMBlE SINGER, 2A SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 46:1 (7th ed. 2008) (discussing the plain meaning rule).

78. See generally SINGER & SINGER, supra note 77, § 45 (discussing criteria for statutory interpretation). There are other ways to interpret a statute, such as by reference to statutes on other subjects, id § 53, or similar statutes of other states, id § 52, but such broad and comprehensive analysis is beyond the purview of this note.

79. See id. § 47:1 (discussing textual construction of statutes). However, "[a] legislature is not compelled by any superior force to obey the rules of grammar and composition." Id

80. GA. CODE ANN. § 16-3-23 (2007). 81. Interview with Doug Ramseur, Senior Staff Attorney, Office of the Ga. Capital Defender,

Atlanta, Ga. (Oct. 23, 2008) [hereinafter Ramseur Interview]. 82. Id. 83. GA. CODE ANN. § 16-3-23 (2007) (emphasis added). 84. Id.; see also Ramseur Interview, supra note 81.

12



COPS OR ROBBERS?

may come from other conditions, other than unlawfulness, that aredescribed in subsections (1), (2), and (3).85

Next, it helps to look at some of the rules of statutoryconstruction. 86 According to the rule of surplusage, "[i]t is a 'cardinalprinciple . . . ' that 'a statute ought, upon the whole, to be soconstrued that, if it can be prevented, no clause, sentence, or wordshall be superfluous, void, or insignificant."' 87 Thus, in subsection(2), the word unlawfully was probably used for a purpose and must becontrasted with subsections (1) and (3), where the word unlawful wasnot used.88 Moreover, "where the legislature has employed a term inone place and excluded it in another, it should not be implied whereexcluded., 89 Thus, the word unlawful should not be implied insubsections (1) and (3), where it seems to have been left outpurposefully. 90 If the legislature intended to require unlawful entry, it"knew how to do so." 91 In the words of the Georgia Supreme Court,"[w]e must presume that [the legislature's] failure to do so was amatter of considered choice." 92

Due to the ambiguity of the language, the rule of lenity may alsoapply.93 The rule developed from an "instinctive distaste against menlanguishing in prison unless the lawmaker has clearly said that theyshould.",94 Thus, a court may interpret the statute in favor of the

85. See GA. CODE ANN. § 16-3-23(1-3) (2007); see also Ramseur Interview, supra note 81.86. SINGER & SINGER, supra note 77, § 47:1 (describing the role of the actual text in statutory

interpretation).87. JELLUM & HRICI., supra note 77, at 147 (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001));

see also SINGER & SINGER, supra note 77, § 46:6 (discussing how each word in a statute is given effect).88. See generally SINGER& SINGER, supra note 77, § 46:6.89. Id.90. Seegenerallyid.91. Fair v. State, 664 S.E.2d 227, 232 (Ga. 2008) (quoting Inland Paperboard & Packaging v. Ga.

Dep't of Revenue, 616 S.E.2d 873, 876 (Ga. Ct. App. 2005)). In all fairness, one can argue that, becausesubsection (2) was added after the rest of the statute, it is possible that the legislature, in enacting theoriginal statute, intended the word "unlawful" in the first section to qualify "entry" in both originalsubsections. See generally id. (stating that the history of a statute belied the legislature's intent to includeor omit a provision). However, that would imply careless oversight on the legislature's part in enactingsubsection (2). See generally SINGER & SINGER, supra note 77, § 46:6.

92. Fair, 664 S.E.2d at 232 (quoting Inland Paperboard & Packaging, 616 S.E.2d at 876).93. JELLUM & HRICIK, supra note 77, at 386. The rule of lenity generally holds that a person should

not be punished for a crime that "a reasonable person could not know was illegal." Id94. Dixon v. State, 596 S.E.2d 147, 150 (Ga. 2004) (quoting United States v. R.L.C., 503 U.S. 291,

305 (1992)); see also JELLUM & HRICIK, supra note 77, at 386 (quoting United States v. Gonzales, 407

20101



may come from other conditions, other than unlawfulness, that are described in subsections (1), (2), and (3).85

Next, it helps to look at some of the rules of statutory construction.86 According to the rule of surplusage, "[i]t is a 'cardinal principle ... ' that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant. ",87 Thus, in subsection (2), the word unlawfully was probably used for a purpose and must be contrasted with subsections (1) and (3), where the word unlawful was not used.88 Moreover, "where the legislature has employed a term in one place and excluded it in another, it should not be implied where excluded.,,89 Thus, the word unlawful should not be implied in subsections (1) and (3), where it seems to have been left out purposefuUy.90 If the legislature intended to require unlawful entry, it "knew how to do so. ,.9] In the words of the Georgia Supreme Court, "[w]e must presume that [the legislature's] failure to do so was a matter of considered choice.,,92

Due to the ambiguity of the language, the rule of lenity may also apply.93 The rule developed from an "instinctive distaste against men languishing in prison unless the lawmaker has clearly said that they should. ,,94 Thus, a court may interpret the statute in favor of the

85. See GA. CODE ANN. § 16-3-23(1-3) (2007); see also Ramseur Interview, supra note 81. 86. SINGER & SINGER, supra note 77, § 47:1 (describing the role of the actual text in statutory

interpretation). 87. JELLUM & HRICIK, supra note 77, at 147 (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001));

see also SINGER & SINGER, supra note 77, § 46:6 (discussing how each word in a statute is given effect). 88. See generally SINGER & SINGER, supra note 77, § 46:6. 89. Id. 90. See generally id. 91. Fair v. State, 664 S.E.2d 227, 232 (Ga. 2008) (quoting Inland Paperboard & Packaging v. Ga.

Dep't of Revenue, 616 S.E.2d 873, 876 (Ga. Ct. App. 2005)). In all fairness, one can argue that, because subsection (2) was added after the rest of the statute, it is possible that the legislature, in enacting the original statute, intended the word ''unlawful'' in the first section to qualify "entry" in both original subsections. See generally id. (stating that the history of a statute belied the legislature'S intent to include or omit a provision). However, that would imply careless oversight on the legislature'S part in enacting subsection (2). See generally SINGER & SINGER, supra note 77, § 46:6.

92. Fair, 664 S.E.2d at 232 (quoting Inland Paperboard & Packaging, 616 S.E.2d at 876). 93. JELLUM & HRICIK, supra note 77, at 386. The rule of lenity generally holds that a person should

not be punished for a crime that "a reasonable person could not know was illegal." Id. 94. Dixon v. State, 596 S.E.2d 147, 150 (Ga. 2004) (quoting United States v. R.L.e., 503 U.S. 291,

305 (1992)); see also JELLUM & HRICIK, supra note 77, at 386 (quoting United States v. Gonzales, 407

13




defendant and not require actual unlawful entry.95 However, courtsusually apply the rule of lenity only when all other sources ofstatutory interpretation have been exhausted.96 One cannot be certainthat a court will find sufficient ambiguity in the defense of habitationstatute to resort to this rule.

2. Answers from the Bench

The Georgia Supreme Court in Hammock v. State, armed with tworules of statutory construction, attempted to decipher the statute.97 InHammock, the defendant, seeking shelter from her husband, lockedherself in the bedroom.98 When the husband broke down the door andadvanced on the defendant to "teach her a lesson," she shot him in thechest, killing him.99 The court reasoned that because subsections (1)and (3) of section 16-3-23 did not mention members of the samehousehold, unlike subsection (2), then "the lack of limiting languagein subsections (1) and (3) shows the legislature's intent to allow thesesubsections to apply between co-inhabitants."' 0° The same can besaid for the word "unlawful": its absence in subsections (1) and (3)shows that the legislature did not intend for unlawfulness to be

F.3d 118, 125 (2d Cir. 2005)). Note, however, that the question of unlawfulness does not address theconduct of the actor, but rather the status of the potential victim. See discussion infra Part III.A. So if thestatute were to be interpreted as requiring actual unlawful entry, the guilt or innocence of the occupantwould depend not on the actor's subjective conduct, but on the status of the intruder. See discussioninfra Part lI.A.

95. Fleet Fin., Inc. of Ga. v. Jones, 430 S.E.2d 352, 355 (Ga. 1993) ("[A criminal statute] must beconstrued strictly against criminal liability and, if it is susceptible to more than one reasonableinterpretation, the interpretation most favorable to the party facing criminal liability must be adopted.");see JELLUM & HRICIK, supra note 77, at 386.

96. United States v. Staples, 511 U.S. 600, 619 n.17 (1994) ("[The rule of lenity] 'is reserved forcases where, after seizing every thing from which aid can be derived,' the Court is 'left with anambiguous statute."' (citations omitted)); JELLUM & HRICIK, supra note 77, at 386.

97. Hammock v. State, 592 S.E.2d 415, 418 (Ga. 2004). The court applied two principles of statutoryinterpretation: "expressio unius est exclusio alterius (expression of one thing implies exclusion ofanother) and expressum facit cessare taciturn (if some things are expressly mentioned, the inference isstronger that those not mentioned were intended to be excluded)." Id.

98. Id. at 417.99. Id.

100. Id. at 418-19. See generally JELLUM & HRiCIK, supra note 77, at 165-67; SINGER & SINGER,supra note 77, § 47:23 (discussing the principle of expressio unius est exclusio alterius).

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defendant and not require actual unlawful entry.95 However, courts usually apply the rule of lenity only when all other sources of statutory interpretation have been exhausted.96 One cannot be certain that a court will find sufficient ambiguity in the defense of habitation statute to resort to this rule.

2. Answersfrom the Bench

The Georgia Supreme Court in Hammock v. State, armed with two rules of statutory construction, attempted to decipher the statute.97 In Hammock, the defendant, seeking shelter from her husband, locked herself in the bedroom.98 When the husband broke down the door and advanced on the defendant to "teach her a lesson," she shot him in the chest, killing him.99 The court reasoned that because subsections (1) and (3) of section 16-3-23 did not mention members of the same household, unlike subsection (2), then "the lack of limiting language in subsections (1) and (3) shows the legislature's intent to allow these subsections to apply between co-inhabitants."loo The same can be said for the word "unlawful": its absence in subsections (1) and (3) shows that the legislature did not intend for unlawfulness to be

F.3d 118, 125 (2d Cir. 2005)). Note, however, that the question of unlawfolness does not address the conduct of the actor, but rather the status of the potential victim. See discussion infra Part III.A. So if the statute were to be interpreted as requiring actual unlawful entry, the guilt or innocence of the occupant would depend not on the actor's subjective conduct, but on the status of the intruder. See discussion infra Part I1I.A.

95. Fleet Fin., Inc. of Ga. v. Jones, 430 S.E.2d 352, 355 (Ga. 1993) ("[A criminal statute] must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted."); see JELLUM & HRICIK, supra note 77, at 386.

96. United States v. Staples, 511 U.S. 600,619 n.17 (1994) ("[The rule of lenity] 'is reserved for cases where, after seizing every thing from which aid can be derived,' the Court is 'left with an ambiguous statute. '" (citations omitted)); JELLUM & HRICIK, supra note 77, at 386.

97. Hammock v. State, 592 S.E.2d 415, 418 (Ga. 2004). The court applied two principles of statutory interpretation: "expressio unius est exc1usio alterius (expression of one thing implies exclusion of another) and expressum facit cessare tacitum (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded)." Id.

98. Id. at 417. 99. Id.

100. Id. at 418-19. See generally JELLUM & HRlCIK, supra note 77, at 165-67; SINGER & SINGER, supra note 77, § 47:23 (discussing the principle of expressio unius est exc1usio alterius).

14



COPS OR ROBBERS?

relevant to these subsections. 10 1 But in a strange twist, the Hammockcourt held that defense of habitation did not apply because thebedroom was not a habitation-the defendant had no right to excludeher husband from the room.'0 2 Thus, the husband's breaking downthe door was "not an unlawful entry into or attack upon Hammock'shabitation."'0 3 It is unclear whether Hammock knew if her husband'sentry was lawful or not, or whether such knowledge figured into thecourt's decision.' 0 4

In Robison v. State, another interesting case interpreting the statute,the defendant came into his brother's house and attacked him with ameat cleaver, at which point the brother beat the defendant with apool cue. 10 5 Convicted of aggravated assault, the defendant assertedthat he was only trying to defend himself against the victim's"unjustified attack."' 0 6 The defendant argued that section 16-3-23"forbade the victim from using deadly force because he is the victim'sbrother."' 1 7 The court disagreed, explaining that "subsection (2)[,] ...which excludes family members from its scope, applies only todefense against one 'who unlawfully and forcibly enters or hasunlawfully and forcibly entered the residence. "'108 The court citedsubsection (1), which does not exclude family members, and held thatsubsection (2) was inapplicable to this case. 10 9 The court's holdingimplies that, even though subsection (2) may be inapplicable againstan intruder who enters lawfully, subsections (1) and (3) would stillapply because, such as with family members, those subsections saynothing about unlawfulness of entry."l0

101. See Hammock, 592 S.E.2d at 418-19; see also JELLUM & HRICIK, supra note 77, at 165-67;SINGER & SINGER, supra note 77, § 47:23.

102. Hammock, 592 S.E.2d at 419.103. Id.104. Seeid.105. Robison v. State, 625 S.E.2d 533, 535 (Ga. Ct. App. 2006).106. Id.107. Id. at 536.108. Id. (quoting GA. CODE ANN. § 16-3-23(2) (2007)).109. Id.110. See id at 536. But see Fannin v. State, 299 S.E.2d 72, 73 (Ga. Ct. App. 1983) (holding that

defense of habitation applies because the "evidence ... clearly shows that the deceased used coercionand threats to gain entry into the defendant's home").

20101



relevant to these subsections. 101 But in a strange twist, the Hammock court held that defense of habitation did not apply because the bedroom was not a habitation-the defendant had no right to exclude her husband from the room. 102 Thus, the husband's breaking down the door was "not an unlawful entry into or attack upon Hammock's habitation.,,103 It is unclear whether Hammock knew if her husband's entry was lawful or not, or whether such knowledge figured into the court's decision. 104

In Robison v. State, another interesting case interpreting the statute, the defendant came into his brother's house and attacked him with a meat cleaver, at which point the brother beat the defendant with a pool cue. 105 Convicted of aggravated assault, the defendant asserted that he was only trying to defend himself against the victim's "unjustified attack.,,106 The defendant argued that section 16-3-23 "forbade the victim from using deadly force because he is the victim's brother.,,107 The court disagreed, explaining that "subsection (2)[,] ... which excludes family members from its scope, applies only to defense against one 'who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence. ",lOS The court cited subsection (1), which does not exclude family members, and held that subsection (2) was inapplicable to this case. 109 The court's holding implies that, even though subsection (2) may be inapplicable against an intruder who enters lawfully, subsections (1) and (3) would still apply because, such as with family members, those subsections say nothing about unlawfulness of entry. I 10

101. See Hammock, 592 S.E.2d at 418-19; see also JELLUM & HRICIK, supra note 77, at 165-67; SINGER & SINGER, supra note 77, § 47:23.

102. Hammock, 592 S.E.2d at 419. 103. Id. 104. See id. 105. Robison v. State, 625 S.E.2d 533, 535 (Ga. Ct. App. 2006). 106. Id. 107. Id. at 536. lOS. Id. (quoting GA. CODE ANN. § 16-3-23(2) (2007». 109. Id. 110. See id. at 536. But see Fannin v. State, 299 S.E.2d 72, 73 (Ga. Ct. App. 19S3) (holding that

defense of habitation applies because the "evidence ... clearly shows that the deceased used coercion and threats to gain entry into the defendant's home").

15




To take a lesson from history, an old Georgia case stronglysuggests that the defendant's reasonable belief, rather than thelawfulness or unlawfulness of the victim's entry, is all that shouldmatter."' In McPherson v. State, the defendant shot a man on hisproperty because he thought the man was a burglar. It turned out,however, that the defendant's wife had allowed the man onto theproperty.112 The court, in examining the defendant's conduct,reasoned that "[a] man cannot in general, be held accountable as acriminal for failing to govern himself by something of the existenceof which he is ignorant."" 3 Further, the court noted that if thedefendant actually believed that the man was a burglar, and thecircumstances justified such a belief, then the case would not havebeen "materially different from what it would have been, if [the man]had really been a burglar." 114 McPherson directly implies that if ahomeowner shoots at a robber who turns out to be a police officer, acourt should treat the situation no differently than if the victim hadactually been a robber.

3. Lawmakers' Goal

Having analyzed the text, it is helpful to look at what thelegislature intended to accomplish by enacting the statute, or at least apart thereof. 1 5 The Georgia legislature amended the defense ofhabitation statute in 2001 by adding subsection (2), suggesting abroader, occupant-oriented interpretation. 1 6 The "Make My DayBill," as the proposed amendment was called, was designed to allowhomeowners to "shoot first and ask questions later.""' 7 Thus,subsection (2) would "allow people to defend their home withouthaving to stop and think whether deadly force toward an intruderwould meet the prior two [(subsections (1) and (3))] reasonableness

111. McPherson v. State, 22 Ga. 478 (1857), available at 1857 WL 1938.112. Id. at *2.113. Id. at *7.114. Id. at *8.115. See generally SINGER & SINGER, supra note 77, § 48.1 (describing the use of legislative history

in statutory interpretation).116. See Empie, supra note 21, at 25-29.117. Id. at25.

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600 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol 26:2

To take a lesson from history, an old Georgia case strongly suggests that the defendant's reasonable belief, rather than the lawfulness or unlawfulness of the victim's entry, is all that should matter. III In McPherson v. State, the defendant shot a man on his property because he thought the man was a burglar. It turned out, however, that the defendant's wife had allowed the man onto the property.ll2 The court, in examining the defendant's conduct, reasoned that "[a] man cannot in general, be held accountable as a criminal for failing to govern himself by something of the existence of which he is ignorant."I13 Further, the court noted that if the defendant actually believed that the man was a burglar, and the circumstances justified such a belief, then the case would not have been "materially different from what it would have been, if [the man] had really been a burglar.,,114 McPherson directly implies that if a homeowner shoots at a robber who turns out to be a police officer, a court should treat the situation no differently than if the victim had actually been a robber.

3. Lawmakers' Goal

Having analyzed the text, it is helpful to look at what the legislature intended to accomplish by enacting the statute, or at least a part thereof. lIS The Georgia legislature amended the defense of habitation statute in 2001 by adding subsection (2), suggesting a broader, occupant-oriented interpretation. Il6 The "Make My Day Bill," as the proposed amendment was called, was designed to allow homeowners to "shoot first and ask questions later."ll7 Thus, subsection (2) would "allow people to defend their home without having to stop and think whether deadly force toward an intruder would meet the prior two [(subsections (1) and (3))] reasonableness

Ill. McPherson v. State, 22 Ga. 478 (1857), available at 1857 WL 1938. Il2. Id. at *2. lB. Id. at *7. Il4. Id. at ·8. lIS. See generally SINGER & SINGER, supra note 77, § 48.1 (describing the use of legislative history

in statutory interpretation). 116. See Empie, supra note 21, at 25-29. 117. Id. at 25.

16



COPS OR ROBBERS?

requirements."' 1 8 As Senator Eric Johnson, Senate District No. 1,

said, the bill's purpose is "to allow homeowners to protectthemselves and their property when they know or reasonably knowthat someone has trespassed into their home."' 19 Yet if the entry mustactually be unlawful, the occupant would be required to engage in acareful risk-benefit analysis before shooting at perceived intruders. 120

On one hand, if the occupant does not react soon enough, she risksbeing murdered or raped, 121 but if she acts too quickly, she risksbeing convicted of a major felony. 122 It seems, therefore, that thelegislature wanted to enable home dwellers to act simply onreasonable belief in shooting at intruders, and interpreting the statuteotherwise would conflict with legislative intent. 123

B. Resisting Arrest in the Good Old Days124

In interpreting the statute, it is helpful to look briefly at Georgia'scommon law principles, especially in situations of conflict betweencitizens and police. 125 A number of Georgia cases have dealt withsituations where a civilian used deadly force against police while

118. Id. at 26.119. Id. at 26-27 (emphasis added) (quoting Telephone Interview with Sen. Eric Johnson, Senate

District No. 1 (Apr. 3, 2001)). This comment was made to stress that the bill was not intended to allow

family members to shoot one another. Id. One may infer that the unlawfulness language in subsection (2)was designed specifically to prevent hostile family shoot-outs and not to impose external restrictions onthe occupant's reasonable belief that a robber has broken into the home. See id

120. See BALKO, supra note 16, at 35-36.121. See discussion infra Part llI.B.122. See discussion infra Part II.A.123. See Empie, supra note 21, at 26.124. For a thorough examination of the common law rule granting a citizen the right to forcefully

resist an illegal arrest, see State v. Gardiner, 814 P.2d 568, 571-75 (Utah 1991).125. See generally SINGER & SINGER 2B, supra note 77, § 50:2 (discussing application of statutes with

reference to common law principles). The authors note that "common-law principles have frequentlybeen invoked as the basis to insist on criminal intent as an element of crimes under statutes which failedspecifically to require it." Id.

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requirements.,,118 As Senator Eric Johnson, Senate District No.1, said, the bill's purpose is "to allow homeowners to protect themselves and their property when they know or reasonably know that someone has trespassed into their home.,,119 Yet if the entry must actually be unlawful, the occupant would be required to engage in a careful risk-benefit analysis before shooting at perceived intruders.120

On one hand, if the occupant does not react soon enough, she risks being murdered or raped,121 but if she acts too quickly, she risks being convicted of a major felony.122 It seems, therefore, that the legislature wanted to enable home dwellers to act simply on reasonable belief in shooting at intruders, and interpreting the statute otherwise would conflict with legislative intent. 123

B. Resisting Arrest in the Good Old Days 124

In interpreting the statute, it is helpful to look briefly at Georgia's common law principles, especially in situations of conflict between citizens and police.125 A number of Georgia cases have dealt with situations where a civilian used deadly force against police while

118. [d. at 26. 119. [d. at 26-27 (emphasis added) (quoting Telephone Interview with Sen. Eric Johnson, Senate

District No. I (Apr. 3,2001». This comment was made to stress that the bill was not intended to allow family members to shoot one another. [d. One may infer that the unlawfolness language in subsection (2) was designed specifically to prevent hostile family shoot-outs and not to impose external restrictions on the occupant's reasonable belief that a robber has broken into the home. See id

120. See BALKO, supra note 16, at 35-36. 121. See discussion infra Part III.B. 122. See discussion infra Part III.A. 123. See Empie, supra note 21, at 26. 124. For a thorough examination of the common law rule granting a citizen the right to forcefully

resist an illegal arrest, see State v. Gardiner, 814 P.2d 568, 571-75 (Utah 1991). 125. See generally SINGER & SINGER 2B, supra note 77, § 50:2 (discussing application of statutes with

reference to common law principles). The authors note that "common-law principles have frequently been invoked as the basis to insist on criminal intent as an element of crimes under statutes which failed specifically to require it." [d

17




resisting arrest.' 26 Notably, courts do not necessarily give police anybroader protection than ordinary citizens. 127

In Davis v. State, a deputy officer came to the defendant's house toarrest him. 128 The deputy had a warrant but did not inform thedefendant of the warrant or his intent to arrest. 129 The defendantresisted, ran "around his house" into the back door, and finally shotthe officer after the latter "attempt[ed] to enter with a pistol in hishand."' 130 The court held that the defendant had a right to resist theofficer because he did not know of the officer's status or intent toarrest, "and if [the officer] had died from the wounds inflicted by thedefendant.. . , it would not have been murder."'' 31

One frequently cited holding comes from Norton v. State.132 InNorton, the defendant police officer, after a pursuit, shot a man whenthe latter refused to hold up his hands and "brought his hand forwardwith something in it."'1 33 In part of its holding, the court elaborated onthe right to resist arrest:

The mere fact of an unlawful arrest will not alone authorize thekilling of the officer making it. But if... the officer is about tocommit a felony upon the other party, or so acts and makes such

126. See, e.g., Mullis v. State, 27 S.E.2d 91 (Ga. 1943); Shafer v. State, 20 S.E.2d 34 (Ga. 1942);McBride v. State, 199 S.E. 153 (Ga. 1938); Paramore v. State, 129 S.E. 772 (Ga. 1925); Davis v. State,4 S.E. 318 (Ga. 1887). Although these cases are fairly old, none of them has been overruled.

127. See, e.g., Walker v. State, 169 S.E. 315, 317 (Ga. Ct. App. 1933) (holding that a citizen has aright to resist unlawful arrest "force with force... and if... he kills an officer or private citizen whojoins in an attempt to effect illegal arrest... he is guilty of no offense").

128. Davis v. State, 4 S.E. 318, 318 (Ga. 1887).129. Id.130. Id. (reversing the lower court's conviction for "assault with intent to murder"). However, the

court implied that if the defendant actually killed the officer, he would still be guilty of manslaughter,but not murder. See id.

131. Id. at 319. The court, in dictum, doubted whether the officer in question had the right to effectthe arrest. Id. at 318.

132. Norton v. State, 74 S.E. 759, 760 (Ga. 1912). For other cases that cite the holding, see, forexample, Mullis v. State, 27 S.E.2d 91, 98-99 (Ga. 1943), Shafer v. State, 20 S.E.2d 34, 39 (Ga. 1942),McBride v. State, 199 S.E. 153, 156 (Ga. 1938), and Paramore v. State, 129 S.E. 772, 777 (Ga. 1925).

133. Norton, 74 S.E. at 761. But see Gresham v. State, 27 S.E.2d 463, 464 (Ga. Ct. App. 1943)("[I]f... the facts and circumstances surrounding the accused at the time he killed the deceased, weresuch only as would excite the fears of a reasonable man that some bodily harm, less than a felony, wasimminent and impending, this would not be a defense to voluntary manslaughter .... (emphasisadded)).

[Vol. 26:2



resisting arrest. 126 Notably, courts do not necessarily give police any broader protection than ordinary citizens. 127

In Davis v. State, a deputy officer came to the defendant's house to arrest him. 128 The deputy had a warrant but did not inform the defendant of the warrant or his intent to arrest. 129 The defendant resisted, ran "around his house" into the back door, and finally shot the officer after the latter "attempt[ ed] to enter with a pistol in his hand.,,130 The court held that the defendant had a right to resist the officer because he did not know of the officer's status or intent to arrest, "and if [the officer] had died from the wounds inflicted by the defendant ... , it would not have been murder."l31

One frequently cited holding comes from Norton v. State. 132 In Norton, the defendant police officer, after a pursuit, shot a man when the latter refused to hold up his hands and "brought his hand forward with something in it.,,133 In part of its holding, the court elaborated on the right to resist arrest:

The mere fact of an unlawful arrest will not alone authorize the killing of the officer making it. But if ... the officer is about to commit a felony upon the other party, or so acts and makes such

126. See, e.g., Mullis v. State, 27 S.E.2d 91 (Ga. 1943); Shafer v. State, 20 S.E.2d 34 (Ga. 1942); McBride v. State, 199 S.E. 153 (Ga. 1938); Paramore v. State, 129 S.E. 772 (Ga. 1925); Davis v. State, 4 S.E. 318 (Ga. 1887). Although these cases are fairly old, none of them has been overruled.

127. See, e.g., Walker v. State, 169 S.E. 315, 317 (Ga. Ct. App. 1933) (holding that a citizen has a right to resist unlawful arrest "force with force ... and if ... he kills an officer or private citizen who joins in an attempt to effect illegal arrest ... he is guilty of no offense").

128. Davis v. State,4 S.E. 318, 318 (Ga. 1887). 129. !d. 130. !d. (reversing the lower court's conviction for "assault with intent to murder"). However, the

court implied that if the defendant actually killed the officer, he would still be guilty of manslaughter, but not murder. See id. 131. ld. at 319. The court, in dictum, doubted whether the officer in question had the right to effect

the arrest. ld. at 318. 132. Norton v. State, 74 S.E. 759, 760 (Ga. 1912). For other cases that cite the holding, see, for

example, Mullis v. State, 27 S.E.2d 91, 98-99 (Ga. 1943), Shafer v. State, 20 S.E.2d 34, 39 (Ga. 1942), McBride v. State, 199 S.E. 153, 156 (Ga. 1938), and Paramore v. State, 129 S.E. 772, 777 (Ga. 1925).

133. Norton, 74 S.E. at 761. But see Gresham v. State, 27 S.E.2d 463, 464 (Ga. Ct. App. 1943) ("[I]f ... the facts and circumstances surrounding the accused at the time he killed the deceased, were such only as would excite the fears of a reasonable man that some bodily harm, less than a felony, was imminent and impending, this would not be a defense to voluntary manslaughter .... "(emphasis added».

18



COPS OR ROBBERS?

a show of violence as to excite in the person sought to be arrested

the fears of a reasonable man that a felony is about to be

committed upon him, and such person acts under the influence ofthose fears, and not in a spirit of revenge, he may protect

himself, although it may be necessary to slay the officer for that

purpose.134

The court noted that the defendant officer in question "did not eveninform the person whom he shot of his official position."' 135

Mullis v. State is another illustrative case that expounds upon the"reasonable fears" doctrine quoted above.' 36 In Mullis, the defendant

stabbed a police officer in the jugular vein with a pocket knife afterthe officer beat the defendant on the head in an effort to arrest him.' 37

The trial judge charged the jury that "a person may kill to prevent anillegal arrest only when it is reasonably and absolutely necessary."' 138

On appeal, the court held that such a charge was error because thisinstruction "wholly eliminated the principle of 'reasonable fears' of afelonious assault by the deceased, a resistance to which wouldconstitute justifiable homicide.' ' 139 The court stated that when anofficer tries to make a lawful arrest but in a felonious manner, "or if

134. Norton, 74 S.E. at 760 (emphasis added). The court's holding stems from the trial court's jury

charge that if the defendant acted in self-defense "against one who manifestly intended by violence orsurprise to commit a felony on his person," the homicide would be justified. Id. The holding, affirmingthe defendant's conviction, implies that the victim could not have manifestly intended to commit afelony on the officer because he was lawfully resisting an illegal arrest. Id.

135. Id.136. Mullis v. State, 27 S.E.2d 91, 98, 100 (Ga. 1943) (citing Ga. Code of 1933 §§ 26-1011, 26-

1012). The doctrine of reasonable fears was codified in the two cited sections of the Georgia 1933 Code.See id. Section 26-1011, covering justifiable homicide, self defense, and defense of habitation, statesthat one is justified in committing homicide "against one who manifestly intends or endeavors, byviolence or surprise, to commit a felony.., or against any persons who manifestly intend and endeavor,in a riotous and tumultuous manner, to enter the habitation of another for the purpose of assaulting oroffering personal violence"; section 26-1012 states that "a bare fear of any of those offenses. . . shall notbe sufficient to justify the killing. It must appear that the circumstances were sufficient to excite thefears of a reasonable man .... " Ga. Code of 1933 §§ 26-1011, 26-1012 (1935) (emphasis added). Formore recent cases applying the doctrine, see Andrews v. State, 480 S.E.2d 29, 30 (Ga. 1997) and

Crawford v. State, 480 S.E.2d 573, 575 (Ga. 1997). Notably, "[t]he fears of a reasonable man don'tmean the fears of a coward, but of a man reasonably courageous, reasonably self-possessed." Johnson v.State, 72 Ga. 679, at *8 (1884), available at 1884 WL 2207.

137. Mullis, 27 S.E.2d at 94-96.138. Id. at96.139. Seeid at 100.

20101


2010) COPS OR ROBBERS?

a show of violence as to excite in the person sought to be arrested the fears of a reasonable man that a felony is about to be committed upon him, and such person acts under the influence of those fears, and not in a spirit of revenge, he may protect himself, although it may be necessary to slay the officer for that purpose. 134

603

The court noted that the defendant officer in question "did not even

inform the person whom he shot of his official position.,,\35

Mullis v. State is another illustrative case that expounds upon the

"reasonable fears" doctrine quoted above.136 In Mullis, the defendant

stabbed a police officer in the jugular vein with a pocket knife after

the officer beat the defendant on the head in an effort to arrest him.137

The trial judge charged the jury that "a person may kill to prevent an illegal arrest only when it is reasonably and absolutely necessary.,,138

On appeal, the court held that such a charge was error because this

instruction "wholly eliminated the principle of 'reasonable fears' of a

felonious assault by the deceased, a resistance to which would

constitute justifiable homicide.,,139 The court stated that when an

officer tries to make a lawful arrest but in a felonious manner, "or if

134. Norton, 74 S.E. at 760 (emphasis added). The court's holding stems from the trial court's jury charge that if the defendant acted in self-defense "against one who manifestly intended by violence or surprise to commit a felony on his person," the homicide would be justified. Id. The holding, affirming the defendant's conviction, implies that the victim could not have manifestly intended to commit a felony on the officer because he was lawfully resisting an illegal arrest. !d.

135. Id. 136. Mullis v. State,27 S.E.2d 91, 98, \00 (Ga. 1943) (citing Ga. Code of 1933 §§ 26-1011,26-

1012). The doctrine of reasonable fears was codified in the two cited sections of the Georgia 1933 Code. See id. Section 26-10 II, covering justifiable homicide, self defense, and defense of habitation, states that one is justified in committing homicide "against one who manifestly intends or endeavors, by violence or surprise, to commit a felony ... or against any persons who manifestly intend and endeavor, in a riotous and tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence"; section 26-1012 states that "a bare fear of any of those offenses ... shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man .... " Ga. Code of 1933 §§ 26-\011, 26-10\2 (1935) (emphasis added). For more recent cases applying the doctrine, see Andrews v. State, 480 S.E.2d 29, 30 (Ga. 1997) and Crawford v. State, 480 S.E.2d 573, 575 (Ga. 1997). Notably, "[t]he fears of a reasonable man don't mean the fears of a coward, but of a man reasonably courageous, reasonably self-possessed." Johnson v. State, 72 Ga. 679, at *8 (1884), available at 1884 WL 2207.

137. Mullis, 27 S.E.2d at 94-96. 138. Id. at 96. 139. See id. at 100.

19




the circumstances are sufficient to excite the fears of a reasonableman that such a felony is intended, and the offender slays theofficer.., to protect himself from what is or what reasonablyappears to be such a felonious assault, then.., the killing would bejustifiable."'

140

According to Mullis, then, even during a legal arrest, if theofficer's manner of arrest reasonably appears to be felonious, thedefendant would be justified in killing him.' 41

It is uncertain whether one can justify killing a police officer in ano-knock raid on the grounds of resisting arrest. Perhaps because fewperfectly legal arrests appear to be felonious, lethal resistance isjustified mostly in situations where the arrest (or manner thereof) isactually unlawful. 142 Moreover, in a vast majority of cases, thedefendants know that they are resisting police. 143 But all in all, thelaw seems to balance the risk of committing a felony almost equallybetween an officer and a citizen in dubious encounters. 144 As thecourt in Dixon v. State said, "the arresting officer is charged with theduty of acting in conformity with the law, and acts at his peril if heviolates it; and, likewise, the law having enjoined that the citizenquietly submit to lawful arrest, his adjudication that the arrest isunlawful is made at his peril.' 145

140. Id. at 98 (citing Ga. Code of 1933, §§ 26-1011, 26-1012). The court also cited Norton for the"reasonable fears" proposition quoted in the preceding paragraph. Id. at 99. The same "reasonable fears"standard applies to police officers who shoot at citizens. Gordy v. State, 92 S.E.2d 737, 739 (Ga. Ct.App. 1956) (holding that a police officer would be justified in killing a person whom he lawfully soughtto arrest "under the fears of a reasonable man that a felony was about to be committed upon himself or afellow officer").

141. See Mullis, 27 S.E.2d at 98. The defendant in Mullis knew that the person he killed was a policeofficer. Id. at 94-96; see also Paramore v. State, 129 S.E. 772, 777 (Ga. 1925) (holding that thedefendant may have been justified in killing an officer when the latter lawfully tried to arrest thedefendant for a misdemeanor but then unlawfully shot at the defendant when he tried to run away). Butsee Glaze v. State, 120 S.E. 530, 533 (Ga. 1923) ("If a person kill [sic] an officer to prevent the latterfrom lawfully arresting him in a lawful way, the crime is murder."); Brown v. State, 69 S.E. 45, 48 (Ga.Ct. App. 1910) (holding that mere menacing and threatening language or surroundings can only mitigatea killing from murder to manslaughter, but if the victim-a town marshal, in this case--had a "pointedpistol ... coupled with the statement 'God dani you, I will kill you,"' the killing would be justifiable).

142. See, e.g., Mullis, 27 S.E.2d at 99-100; Paramore, 129 S.E. at 777.143. See, e.g., Glaze, 120 S.E. at 533; Perano v. State, 307 S.E.2d 64, 66 (Ga. Ct. App. 1983).144. See Dixon v. State, 76 S.E. 794, 794-95 (Ga. Ct. App. 1912).145. Id.

[Vol. 26:2



the circumstances are sufficient to excite the fears of a reasonable man that such a felony is intended, and the offender slays the officer ... to protect himself from what is or what reasonably appears to be such a felonious assault, then . . . the killing would be justifiable.,,140

According to Mullis, then, even during a legal arrest, if the officer's manner of arrest reasonably appears to be felonious, the defendant would be justified in killing him.141

It is uncertain whether one can justify killing a police officer in a no-knock raid on the grounds of resisting arrest. Perhaps because few perfectly legal arrests appear to be felonious, lethal resistance is justified mostly in situations where the arrest (or manner thereot) is actually unlawful. I42 Moreover, in a vast majority of cases, the defendants know that they are resisting police. 143 But all in all, the law seems to balance the risk of committing a felony almost equally between an officer and a citizen in dubious encounters. l44 As the court in Dixon v. State said, "the arresting officer is charged with the duty of acting in confonnity with the law, and acts at his peril if he violates it; and, likewise, the law having enjoined that the citizen quietly submit to lawful arrest, his adjudication that the arrest is unlawful is made at his peril.,,145

140. Id. at 98 (citing Ga. Code of 1933, §§ 26-1011, 26-1012). The court also cited Norton for the "reasonable fears" proposition quoted in the preceding paragraph. Id. at 99. The same "reasonable fears" standard applies to police officers who shoot at citizens. Gordy v. State, 92 S.E.2d 737, 739 (Ga. Ct. App. 1956) (holding that a police officer would be justified in killing a person whom he lawfully sought to arrest "under the fears of a reasonable man that a felony was about to be committed upon himself or a fellow officer").

141. See Mullis, 27 S.E.2d at 98. The defendant in Mullis knew that the person he killed was a police officer. Id. at 94-96; see also Paramore v. State, 129 S.E. 772, 777 (Ga. 1925) (holding that the defendant may have been justified in killing an officer when the latter lawfully tried to arrest the defendant for a misdemeanor but then unlawfully shot at the defendant when he tried to run away). But see Glaze v. State, 120 S.E. 530, 533 (Ga. 1923) ("If a person kill [sic] an officer to prevent the latter from lawfully arresting him in a lawful way, the crime is murder."); Brown v. State, 69 S.E. 45, 48 (Ga. Ct. App. 1910) (holding that mere menacing and threatening language or surroundings can only mitigate a killing from murder to manslaughter, but if the victirn-a town marshal, in this case-had a "pointed pistol ... coupled with the statement 'God damn you, I will kill you, '" the killing would be justifiable).

142. See, e.g., Mullis, 27 S.E.2d at 99-100; Paramore, 129 S.E. at 777. 143. See, e.g., Glaze, 120 S.E. at 533; Perano v. State, 307 S.E.2d 64, 66 (Ga. Ct App. 1983). 144. See Dixon v. State, 76 S.E. 794,794-95 (Ga. Ct. App. 1912). 145. !d.

20



COPS OR ROBBERS?

C. Defense of Habitation Applied

There is very little Georgia case law addressing what happenswhen a home dweller shoots at police during a no-knock raid andkills an officer. 146 However, there are some cases where thedefendant, after attacking police, tried to assert defense ofhabitation. 147 These cases, described below, offer a glimpse into thecourts' potential approach to the problem and may be cited forprecedent when the no-knock raid issue comes to the forefront.

In Leach v. State, a police officer came to the defendant's house inresponse to a "wife beating incident." 148 Before the officer came in,the defendant took a sawed-off shotgun, pointed it at the officer, andsaid "I'm going to kill you." 149 The officer retreated, and thedefendant was charged with aggravated assault. 150 In response to thedefendant's defense of habitation claim, the court held that "therewas sufficient evidence for the jury to find either that the officer didnot make an unlawful entry or was not attempting to make one." 151 Itis not clear whether the court stressed the lack of an entry, or the lackof an unlawful entry.15 2

146. However, there may be a ruling on the matter in the near future. In Fair v. State, the defendantswere charged with murdering a police officer during the exercise of a no-knock warrant. Fair v. State,664 S.E.2d 227, 229-30 (Ga. 2008). The defendants asserted immunity based on GA. CODE ANN. § 16-3-23, § 16-3-24, and § 16-3-24.2 (2007). Fair, 664 S.E.2d at 230. The court remanded the case back fora pre-trial determination of whether the defendants should be immune from prosecution. Id

147. See discussion infra Part H.C.148. Leach v. State, 239 S.E.2d 177, 178 (Ga. Ct. App. 1977).149. Id. at 179.150. Id.151. Id. at 180.152. See id In denying the defense of habitation, it is often unclear whether courts stress the victim's

lack of entry or lawfulness thereof. For example, in Stobbart v. State, the defendant shot a guest after anargument. Stobbart v. State, 533 S.E.2d 379, 381 (Ga. 2000). The court held that defense of habitationdid not apply because "[section] 16-3-23 authorizes use of force to terminate an 'unlawful entry into orattack upon a habitation.' The statute is clearly concerned with the use of deadly force to counter entry,or attempted entry, into the home." Id. at 383. The court further noted that the defense is unavailable"when the victim is a guest in the home." Id.; see also Lee v. State, 415 S.E.2d 290, 293 (Ga. Ct. App.1992) (holding that defense of habitation did not apply where the defendant invited the victim into hishome because use of deadly force is justified when the occupant "reasonably believes that the entry ismade or attempted for the purpose of committing a felony therein"); Terrell v. Hester, 355 S.E.2d 97, 99(Ga. Ct. App. 1987) (holding that section 16-3-23 did not apply where the defendant beat the plaintiff-who may have been lawfully on the premises--outside the house because no entry actually occurred).

20101



C. Defense of Habitation Applied

There is very little Georgia case law addressing what happens

when a home dweller shoots at police during a no-knock raid and

kills an officer. 146 However, there are some cases where the

defendant, after attacking police, tried to assert defense of

habitation.147

These cases, described below, offer a glimpse into the

courts' potential approach to the problem and may be cited for

precedent when the no-knock raid issue comes to the forefront.

In Leach v. State, a police officer came to the defendant's house in

response to a "wife beating incident.,,148 Before the officer came in,

the defendant took a sawed-off shotgun, pointed it at the officer, and

said "I'm going to kill yoU.,,149 The officer retreated, and the

defendant was charged with aggravated assault.lSO In response to the

defendant's defense of habitation claim, the court held that "there

was sufficient evidence for the jury to find either that the officer did

not make an unlawful entry or was not attempting to make one.,,151 It

is not clear whether the court stressed the lack of an entry, or the lack

of an unlawful entry. 152

146. However, there may be a ruling on the matter in the near future. In Fair v. State, the defendants were charged with murdering a police officer during the exercise of a no-knock warrant. Fair v. State, 664 S.E.2d 227, 229-30 (Ga. 2008). The defendants asserted immunity based on GA. CODE ANN. § 16-3-23, § 16-3-24, and § 16-3-24.2 (2007). Fair, 664 S.E.2d at 230. The court remanded the case back for a pre-trial detennination of whether the defendants should be immune from prosecution. Id.

147. See discussion infra Part II.C. 148. Leach v. State, 239 S.E.2d 177, 178 (Ga. Ct. App. 1977). 149. Id.atI79. ISO. !d. 151. Id. at 180. 152. See id. In denying the defense of habitation, it is often unclear whether courts stress the victim's

lack of entry or lawfulness thereof. For example, in Stobbart v. State, the defendant shot a guest after an argument. Stobbart v. State, 533 S.E.2d 379, 381 (Ga. 2000). The court held that defense of habitation did not apply because "[section] 16-3-23 authorizes use of force to tenninate an 'unlawful entry into or attack upon a habitation.' The statute is clearly concerned with the use of deadly force to counter entry, or attempted entry, into the home." Id. at 383. The court further noted that the defense is unavailable "when the victim is a guest in the home." Id.; see also Lee v. State, 415 S.E.2d 290, 293 (Ga. Ct. App. 1992) (holding that defense of habitation did not apply where the defendant invited the victim into his home because use of deadly force is justified when the occupant "reasonably believes that the entry is made or attempted for the purpose of committing a felony therein"); Terrell v. Hester, 355 S.E.2d 97, 99 (Ga. Ct. App. 1987) (holding that section 16-3-23 did not apply where the defendant beat the plaintiffwho may have been lawfully on the premises-{)utside the house because no entry actually occurred).

21




In Price v. State, the defendant was charged with aggravatedassault upon a peace officer because he shot at the police after theypursued him and broke into his apartment. 153 The defendant asserteddefense of habitation under section 16-3-23.154 First, the court foundthat the officers' entry into the apartment was lawful. 155 Next, thecourt found that the defendant's shooting may not have been justifiedunder section 16-3-23, but the court only cited subsections (1) and (3)(then subsections (1) and (2)) for this lack of justification. 156 Thecourt held that the defendant's "knowledge of the identity of theindividuals as officers and his justification for firing on them wereissues which were properly submitted to the jury."' 57 The court'sreasoning and holding directly imply that if the defendant did notknow the officers' status, and if he was justified in shooting at themunder subsections (1) and (3), then the actual lawfulness orunlawfulness of the officers' entry would be irrelevant.'1 58

A Georgia Supreme Court case, Washington v. State, cites bothDavis159 and Norton160 and provides some illumination. of theissue.161 In Washington, the defendant threatened to "blow thepoliceman's brains out" after the officers drove up to his house inresponse to a call. 162 After hearing more obscenities and threats, thepolice pursued the defendant into the house, where he shot and killedone of the officers and later bragged about it.163 The court held that"the suspect cannot withdraw into his house, shoot and kill one of the

153. Price v. State, 334 S.E.2d 711, 715 (Ga. Ct. App. 1985).154. Id155. Id.156. Id. at 716. Recall that subsections (1) and (3) do not mention unlawfulness of entry. GA. CODE

ANN. § 16-3-23 (2007); see also supra Part 1I.A.157. Price, 334 S.E.2d at 716.158. See id.; but cf Parrish v. State, 355 S.E.2d 682, 685 (Ga. Ct. App. 1987) (holding that the

defense of habitation statute did not apply where the defendant pointed a gun at police officers becausethere was "no evidence that defendant was attempting 'to prevent or terminate [the officers'] unlawfulentry into or attack upon a habitation" (alteration in original)). In Parrish, however, the defendantknowingly threatened the officers when they came upon, but did not enter or attempt to enter, hismarijuana patch. Id. at 683.

159. Davis v. State, 4 S.E. 318 (Ga. 1887); see also discussion supra Part H.B.160. Norton v. State, 74 S.E. 759 (Ga. 1912); see also discussion supra Part H.B.161. Washington v. State, 263 S.E.2d 152, 154 (Ga. 1980).162. Id. at 153.163. Id

[Vol. 26:2



In Price v. State, the defendant was charged with aggravated assault upon a peace officer because he shot at the police after they pursued him and broke into his apartment. 153 The defendant asserted defense of habitation under section 16_3_23.154 First, the court found that the officers' entry into the apartment was lawful. 155 Next, the court found that the defendant's shooting may not have been justified under section 16-3-23, but the court only cited subsections (1) and (3) (then subsections (1) and (2» for this lack of justification. 156 The court held that the defendant's "knowledge of the identity of the individuals as officers and his justification for firing on them were issues which were properly submitted to the jury.,,157 The court's reasoning and holding directly imply that if the defendant did not know the officers' status, and if he was justified in shooting at them under subsections (1) and (3), then the actual lawfulness or unlawfulness of the officers' entry would be irrelevant. 158

A Georgia Supreme Court case, Washington v. State, cites both Davis159 and Norton160 and provides some illumination. of the issue. 161 In Washington, the defendant threatened to "blow the policeman's brains out" after the officers drove up to his house in response to a cal1. 162 After hearing more obscenities and threats, the police pursued the defendant into the house, where he shot and killed one of the officers and later bragged about it. 163 The court held that "the suspect cannot withdraw into his house, shoot and kill one of the

153. Price v. State, 334 S.E.2d 711, 715 (Ga. Ct. App. 1985). 154. [d.

155. !d. 156. [d. at 716. Recall that subsections (1) and (3) do not mention unlawfulness of entry. GA. CODE

ANN. § 16-3-23 (2007); see also supra Part II.A. 157. Price, 334 S.E.2d at 716. 158. See id.; but cf Parrish v. State, 355 S.E.2d 682, 685 (Ga. Ct. App. 1987) (holding that the

defense of habitation statute did not apply where the defendant pointed a gun at police officers because there was "no evidence that defendant was attempting 'to prevent or terminate [the officers'] unlawful entry into or attack upon a habitation" (alteration in original». In Parrish, however, the defendant knowingly threatened the officers when they came upon, but did not enter or attempt to enter, his marijuana patch. [d. at 683.

159. Davis v. State, 4 S.E. 318 (Ga. 1887); see also discussion supra Part II.B. 160. Norton v. State, 74 S.E. 759 (Ga. 1912); see also discussion supra Part II.B. 161. Washington v. State, 263 S.E.2d 152, 154 (Ga. 1980). 162. [d. at 153. 163. !d.

22



COPS OR ROBBERS?

officers who enters thereafter and then claim self-defense."' 64 Thecourt cited only subsections (1) and (3) of the defense of habitationstatute for its holding, and did not mention that the entry mustactually be unlawful. 165 The court also distinguished Davis on thegrounds that in Davis, "the defendant did not know that the personmaking the arrest was a law enforcement officer."'1 66 Thus,Washington seems to imply that if the defendant did not know thatthe person in his house was a police officer, he might have beenjustified in shooting the officer.' 67

Importantly, the above cases deal with rather morally clear-cutsituations where the defendants knew that police were after them andpurposefully, even maliciously, tried to resist the law.' 68 Moreover,the unlawfulness of the entry was not really the primary issue.1 69

However, in a scenario where a homeowner mistakenly shoots atpolice raiders, reasonably believing them to be robbers, theunlawfulness of entry is bound to come into focus, and the moralinnocence of the shooter is likely to affect a court's decision.

III. PROPOSAL: BALANCING RISKS, AVOIDING COLLISIONS

Courts should hold that the entry does not need to actually beunlawful for the defense of habitation statute to apply, especially incases of no-knock police raids. The language of the statute isunclear, 170 but even if it leans towards an actual unlawfulnessrequirement, in the words of the United States Supreme Court, this isnot "the end of the matter." 17' As previously described, an actual

164. Id. at 154.165. Id.166. Id. (citing Davis v. State, 4 S.E. 318 (Ga. 1887)).167. Washington v. State, 263 S.E.2d 152, 154 (Ga. 1980).168. See id. at 153; see also Price v. State, 334 S.E.2d 711, 715 (Ga. Ct. App. 1980); Leach v. State,

239 S.E.2d 177, 179 (Ga. Ct. App. 1977).169. See Washington, 263 S.E.2d at 154; see also Price, 334 S.E.2d at 715; Leach, 239 S.E.2d at 179-

80.170. See discussion supra Part H.A. 1.171. United States v. X-Citement Video, Inc., 513 U.S. 64, 68 (1994) (holding that even though the

statute's "most natural grammatical meaning" disposes of a particular knowledge requirement, such arequirement must be imposed to avoid "anomalies" and because "some form of scienter is to be impliedin a criminal statute even if not expressed").

20101



officers who enters thereafter and then claim self-defense."I64 The court cited only subsections (1) and (3) of the defense of habitation statute for its holding, and did not mention that the entry must actually be unlawful. I65 The court also distinguished Davis on the grounds that in Davis, "the defendant did not know that the person making the arrest was a law enforcement officer.,,166 Thus, Washington seems to imply that if the defendant did not know that the person in his house was a police officer, he might have been justified in shooting the officer. 167

Importantly, the above cases deal with rather morally clear-cut situations where the defendants knew that police were after them and purposefully, even maliciously, tried to resist the law. 168 Moreover, the unlawfulness of the entry was not really the primary issue.169

However, in a scenario where a homeowner mistakenly shoots at police raiders, reasonably believing them to be robbers, the unlawfulness of entry is bound to come into focus, and the moral innocence ofthe shooter is likely to affect a court's decision.

III. PROPOSAL: BALANCING RISKS, AVOIDING COLLISIONS

Courts should hold that the entry does not need to actually be unlawful for the defense of habitation statute to apply, especially in cases of no-knock police raids. The language of the statute is unclear,170 but even if it leans towards an actual unlawfulness requirement, in the words of the United States Supreme Court, this is not "the end of the matter.,,171 As previously described, an actual

164. Id. at 154. 165. Id. 166. Id. (citing Davis v. State,4 S.E. 318 (Ga. 1887)). 167. Washington v. State, 263 S.E.2d 152, 154 (Ga. 1980). 168. See id. at 153; see also Price v. State, 334 S.E.2d 711, 715 (Ga. Ct. App. 1980); Leach v. State,

239 S.E.2d 177, 179 (Ga. Ct. App. 1977). 169. See Washington, 263 S.E.2d at 154; see also Price, 334 S.E.2d at 715; Leach, 239 S.E.2d at 179-

80. 170. See discussion supra Part II.A.I. 17!. United States v. X-Citement Video, inc., 513 U.S. 64, 68 (1994) (holding that even though the

statute's "most natural grammatical meaning" disposes of a particular knowledge requirement, such a requirement must be imposed to avoid "anomalies" and because "some form of scienter is to be implied in a criminal statute even if not expressed").

23




unlawfulness requirement would directly conflict with legislativeintent by forcing occupants, at their peril, to think long and hardbefore defending themselves. 72 But the most important reason fornot requiring an unlawful entry, and the focus of the discussionbelow, is that such a requirement would place an enormous risk ofinjury, prison, or death on those who are the least culpable and theleast prepared. 173 Courts can also effectively mitigate any negativeconsequences of allowing occupants to shoot upon reasonablebelief.

174

A. What You Don 't Know May Kill You

If the entry must actually be unlawful, regardless of the occupant'sreasonable belief, what would happen to a person who mistakenlyshoots and kills an officer? This is literally an issue of life and death.In Fair v. State, the defendants shot and killed a police officer duringa no-knock raid.175 The state charged the defendants with murder andsought the death penalty based on the aggravating circumstance thatthe victim was a peace officer.1 76 The court held that under Georgialaw, the defendant does not have to know that the person killed was apolice officer to be eligible for the death penalty. 177 Under Fair, it isscary to imagine what would happen if section 16-3-23 were torequire actual unlawful entry.

Imagine an occupant who wakes up in the dark of night bythunderous pounding at the door, jumbled shouts, and the crack ofbreaking wood. Startled and overcome with fear, she reaches for thegun kept for protection and shoots at the perceived intruders. 17' Assoon as the bullet leaves the barrel, she has done her deed, but societyis not yet free to judge her action. Her innocence or guilt, life or

172. See discussion supra Part I.A.3.173. See discussion infra Part LI.A-C.174. See discussion infra Part llI.D.175. Fair v. State, 664 S.E.2d 227, 229-30 (Ga. 2008).176. Id. at 229-31. A jury may impose a death sentence if it finds at least one statutory aggravating

circumstance. GA. CODE ANN. § 17-10-30 (2008). Killing a police officer is one of those circumstances.Id.

177. Fair, 664 S.E.2d at 233.178. A somewhat similar example may be found in Rutlege, supra note 21, at 629-30.

[Vol. 26:2



unlawfulness requirement would directly conflict with legislative intent by forcing occupants, at their peril, to think long and hard before defending themselves. I72 But the most important reason for not requiring an unlawful entry, and the focus of the discussion below, is that such a requirement would place an enormous risk of injury, prison, or death on those who are the least culpable and the least prepared. I73 Courts can also effectively mitigate any negative consequences of allowing occupants to shoot upon reasonable belief. 174

A. What You Don't Know May Kill You

If the entry must actually be unlawful, regardless of the occupant's reasonable belief, what would happen to a person who mistakenly shoots and kills an officer? This is literally an issue of life and death. In Fair v. State, the defendants shot and killed a police officer during a no-knock raid. I75 The state charged the defendants with murder and sought the death penalty based on the aggravating circumstance that the victim was a peace officer. I76 The court held that under Georgia law, the defendant does not have to know that the person killed was a police officer to be eligible for the death penalty. 177 Under Fair, it is scary to imagine what would happen if section 16-3-23 were to require actual unlawful entry.

Imagine an occupant who wakes up in the dark of night by thunderous pounding at the door, jumbled shouts, and the crack of breaking wood. Startled and overcome with fear, she reaches for the gun kept for protection and shoots at the perceived intruders. 178 As soon as the bullet leaves the barrel, she has done her deed, but society is not yet free to judge her action. Her innocence or guilt, life or

172. See discussion supra Part Il.A.3. 173. See discussion infra Part III.A-C. 174. See discussion infra Part III.D. 175. Fair v. State, 664 S.E.2d 227, 229-30 (Ga. 2008). 176. /d. at 229-3\. A jury may impose a death sentence if it finds at least one statutory aggravating

circumstance. GA. CODE ANN. § 17-10-30 (2008). Killing a police officer is one of those circumstances. [d.

177. Fair, 664 S.E.2d at 233. 178. A somewhat similar example may be found in RutJege, supra note 21, at 629-30.

24



COPS OR ROBBERS?

death, depend not on her but on who is behind the door. If they arerobbers, then her shooting at them is completely justified, and evenlaudable. 179 If the intruders are police, then she is the worst criminalpossible in the eyes of the law. 180 After all, as Justice Brennan stated,the death penalty is reserved only for the "most heinous crimes."' 8 1 Itis strange and chilling to think, therefore, that whether you are aperfectly law-abiding citizen or the most heinous of criminalsdepends on factors completely beyond your control. 182

B. Are They Real or Fake?

Requiring that an entry actually be unlawful will force occupantsto throw down their guns as soon as they see a badge or hear theword "police!" Yet such immediate surrender will expose manypeople to a great risk of harm. Cases of police impersonation arerampant throughout the country, and brazen criminals sometimes liketo "disarm their victims by pretending to be cops. 183 For example, inone Pennsylvania case, a serial killer used a police disguise to gainentry into a woman's home, then raped her and strangled her with adrape cord. 184 More recently in Alabama, two men kicked in the doorof an apartment claiming to be narcotics agents, hit the occupant inthe head with a gun, then stole her money and prescription

179. See GA. CODE ANN. § 16-3-23 (2007).180. See Kennedy v. Louisiana, 128 S. Ct. 2641, 2665 (2008) (stating that the death penalty "must be

reserved for the worst of crimes"); see also Furman v. Georgia, 408 U.S. 238, 286 (1972) (Brennan, J.,concurring).

181. Furman, 408 U.S. at 286 (Brennan, J., concurring).182. One may think that other defenses, like self-defense, would be available to such a person.

However, the self-defense statute suffers from the same ambiguity regarding unlawfulness as defense ofhabitation and, furthermore, requires the perceived danger to be imminent. See GA. CODE ANN. § 16-3-21(a) (2007) (stating that a person is justified in using force against another's "imminent use of unlawfulforce"); see also discussion supra Part I.B.

183. Colleen Long, Police Impersonators Flash a Badge, Fool a Victim, ASSOCIATED PRESS ALERT(Conn.), July 13, 2008 (quoting Dr. Naftali Bertill, a lead psychologist at the New York Center forNeuropsychology and Forensic Behavioral Science); see also BALKO, supra note 16, at 20; KristanTrugman, Power Lures Police Impersonators, WASH. TIMES (D.C.), Sept. 10, 1999, at Cl, available at1999 WLNR 412267.

184. Manuel Gamiz Jr., Illinois Inmate Charged in 1979 Killing: Suspected Serial Killer TimothyKrajcir Raped, Choked Berks County Woman, Police Say, MORNING CALL (Allentown, Pa.), Jan. 12,2008, available at 2008 WLNR 675980.

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death, depend not on her but on who is behind the door. If they are robbers, then her shooting at them is completely justified, and even laudable. 179 If the intruders are police, then she is the worst criminal possible in the eyes of the law. 180 After all, as Justice Brennan stated, the death penalty is reserved only for the "most heinous crimes.,,181 It is strange and chilling to think, therefore, that whether you are a perfectly law-abiding citizen or the most heinous of criminals depends on factors completely beyond your control. 182

B. Are They Real or Fake?

Requiring that an entry actually be unlawful will force occupants to throw down their guns as soon as they see a badge or hear the word "police!" Yet such immediate surrender will expose many people to a great risk of harm. Cases of police impersonation are rampant throughout the country, and brazen criminals sometimes like to "disarm their victims by pretending to be COpS.,,183 For example, in one Pennsylvania case, a serial killer used a police disguise to gain entry into a woman's home, then raped her and strangled her with a drape cord. 184 More recently in Alabama, two men kicked in the door of an apartment claiming to be narcotics agents, hit the occupant in the head with a gun, then stole her money and prescription

179. See GA. CODE ANN. § 16-3-23 (2007). 180. See Kennedy v. Louisiana, 128 S. Ct. 2641, 2665 (2008) (stating that the death penalty "must be

reserved for the worst of crimes"); see also Furman v. Georgia, 408 U.S. 238, 286 (1972) (Brennan, J., concurring).

181. Furman, 408 U.S. at 286 (Brennan, J., concurring). 182. One may think that other defenses, like self-defense, would be available to such a person.

However, the self-defense statute suffers from the same ambiguity regarding unlawfulness as defense of habitation and, furthermore, requires the perceived danger to be imminent. See GA. CODE ANN. § 16-3-21 (a) (2007) (stating that a person is justified in using force against another's "imminent use of unlawful force"); see also discussion supra Part I.B.

183. Colleen Long, Police Impersonators Flash a Badge, Fool a Victim, AsSOCIATED PREss ALERT (Conn.), July 13, 2008 (quoting Dr. Naftali Berrill, a lead psychologist at the New York Center for Neuropsychology and Forensic Behavioral Science); see also BALKO, supra note 16, at 20; Kristan Trugman, Power Lures Police Impersonators, WASH. TIMES (D.C.), Sept. 10, 1999, at CI, available at 1999 WLNR412267. 184. Manuel Gamiz Jr., Illinois Inmate Charged in 1979 Killing: Suspected Serial Killer Timothy

Krajcir Raped, Choked Berks County Woman, Police Say, MORNING CALL (Allentown, Pa.), Jan. 12, 2008, available at 2008 WLNR 675980.

25




medications.185 In another case, two Los Angeles ex-policemen wereconvicted of committing "home-invasion robberies that weredesigned to look like legitimate police searches of homes andbusinesses."' 186 And in Georgia, "men posing as police forced theirway into an apartment ... and shot and wounded a thirteen-year-oldgirl."'

187

Corporal Ilana Spellman, the spokeswoman for the GwinnettCounty Police Department, warned the public about policeimpersonators. 188 She said that although police sometimes useunmarked cars and wear plain clothes, "usually we're going toannounce ourselves and allow someone to come to the door beforewe're going to breach a doorway."' 189 But in a no-knock entry, howwill a disoriented occupant identify the intruders? In the few secondsof sheer terror, will she be able to correctly discern the real policefrom potentially dangerous impersonators?

C. Sharing the Risk

Pretenders are out there, but most police are real and law-abiding,and it may seem unfair to allow jittery occupants to kill honestofficers who are simply following their duties. Though policecertainly deserve all the protection the law allows, civilians should

185. Holly Hollman, Alleged Fake Narc Agents Deny Police Version of Story, DECATUR DAILY(Ala.), June 5, 2008, available at 2008 WLNR 10609127.

186. Wendy Thomas Russel, Ferguson Brothers Convicted of Felonies; COURT: LBPD OfficerFound Guilty on Two Counts of Conspiracy and One Firearm Charge, LONG BEACH PRESS-TELEGRAM(Cal.), Jan. 31, 2008, at I A, available at 2008 WLNR 1806857.

187. Andria Simmons, Fake Cops Target Hispanics in Nine Robberies, ATLANTA J.-CONST., July 9,2008, at B3, available at 2008 WLNR 12838445.

188. Id189. Id. (emphasis added). For other recent examples of criminals impersonating police, see John

Annese, Insist That Cops Show ID Cautions Police Commissioner: Home Invasion by Fake OfficersPoints Up the Need for Islanders to be Vigilant, STATEN ISLAND ADVANCE (N.Y.), Sept. 5, 2008, atA01, available at 2008 WLNR 16858478; Matt Burgard, Pair of Scam Artists Strikes, HARTFORDCOURANT (Conn.), June 6, 2008, at B3, available at 2008 WLNR 10727089; Amber Craig, Police SayBurglar Posed as FBI Agent, PRESS-REGISTER (Mobile, Ala.), Oct. 16, 2008, at Al, available at 2008WLNR 20108044; Hank Dudding & Jody Callahan, Police: Real Cop Nabs 3 Fakes, MEMPHIS COM.APPEAL (Tenn.), Oct. 10, 2008, at B2, available at 2008 WLNR 19347604; Man Robbed by BogusPolice Officers in Home Invasion, VENTURA COUNTY STAR (Cal.), Jan. 14, 2010, available at 2010WLNR 840502; Police Impersonators Break into a House, STAR-LEDGER (Newark, N.J.), Feb. 4, 2010,at 22, available at 2010 WLNR 2353532.

[Vol. 26:2



medications. 185 In another case, two Los Angeles ex-policemen were convicted of committing "home-invasion robberies that were designed to look like legitimate police searches of homes and businesses.,,186 And in Georgia, "men posing as police forced their way into an apartment ... and shot and wounded a thirteen-year-old girl.,,187

Corporal Hana Spellman, the spokeswoman for the Gwinnett County Police Department, warned the public about police impersonators. 188 She said that although police sometimes use unmarked cars and wear plain clothes, "usually we're going to announce ourselves and allow someone to come to the door before we're going to breach a doorway.,,189 But in a no-knock entry, how will a disoriented occupant identify the intruders? In the few seconds of sheer terror, will she be able to correctly discern the real police from potentially dangerous impersonators?

C. Sharing the Risk

Pretenders are out there, but most police are real and law-abiding, and it may seem unfair to allow jittery occupants to kill honest officers who are simply following their duties. Though police certainly deserve all the protection the law allows, civilians should

185. Holly Hollman, Alleged Fake Narc Agents Deny Police Version of Story, DECATUR DAILY (Ala.), June 5, 2008, available at 2008 WLNR 10609127.

186. Wendy Thomas Russel, Ferguson Brothers Convicted of Felonies; COURT: LBPD Officer Found Guilty on Two Counts of Conspiracy and One Firearm Charge, LoNG BEACH PRESS-TELEGRAM (CaL), Jan. 31, 2008, at IA, available at 2008 WLNR 1806857.

187. Andria Simmons, Fake Cops Target Hispanics in Nine Robberies, ATLANTA J.-CONST., July 9, 2008, at 83, available at 2008 WLNR 12838445.

188. Id 189. /d. (emphasis added). For other recent examples of criminals impersonating police, see John

Annese, Insist That Cops Show ID Cautions Police Commissioner: Home Invasion by Fake Officers Points Up the Need for Islanders to be Vigilant, STATEN ISLAND Aov ANCE (N.Y.), Sept. 5, 2008, at AOI, available at 2008 WLNR 16858478; Matt Burgard, Pair of Scam Artists Strikes, HARTFORD COURANT (Conn.), June 6,2008, at B3, available at 2008 WLNR 10727089; Amber Craig, Police Say Burglar Posed as FBI Agent, PRESS-REGISTER (Mobile, Ala.), Oct. 16, 2008, at AI, available at 2008 WLNR 20108044; Hank Dudding & Jody Callahan, Police: Real Cop Nabs 3 Fakes, MEMPHIS COM. APPEAL (Tenn.), Oct. 10,2008, at B2, available at 2008 WLNR 19347604; Man Robbed by Bogus Police Officers in Home Invasion, VENTURA COUNTY STAR (CaL), Jan. 14, 2010, available at 2010 WLNR 840502; Police Impersonators Break into a House, STAR-LEDGER (Newark, N.J.), Feb. 4,2010, at 22, available at 2010 WLNR 2353532.

26



COPS OR ROBBERS?

not shoulder all the risks of a deadly encounter. 190 After all, police aresignificantly more prepared to deal with deadly situations and toavoid harm than private citizens. 191 For example, a typical SWATteam is equipped with, among other things, battle fatigues,bulletproof helmets and vests, gas masks, boot knives, and militarygrade assault weapons. 192 Also, officers who conduct raids arerequired to undergo at least one hour of training per month. 193

Compare that to a startled civilian with no martial experience and anold revolver who just woke up or came out of the shower. 194 AsBalko notes, it is unrealistic and unfair to expect civilian occupants to"show remarkable poise and composure, exercise good judgment, andhold their fire, even as teams of armed assailants are swarming theirhomes."' 95 Police are in much better shape to evaluate and minimizethe risks of breaking into a home unannounced.1 96

D. Life and Justice for All

Allowing homeowners to defend themselves in good faith againstno-knock police raids is the right and reasonable course to take.197

However, the legislature and the courts may be put off by theresulting legal collision.' 98 After all, during a no-knock entry, boththe police and home dwellers would be able to legally kill eachother. 199 Legalizing such deadly encounters will not solve the

190. See BALKO, supra note 16, at 35-36.191. Id.192. Id. at 5; see also ROBERT SNOW, SWAT TEAMS: EXPLOSIVE FACE-OFFS WITH AMERICA'S

DEADLIEST CRIMINALS 99-121 (1996) (describing weapons and other equipment used by SWATteams). But note that "SWAT officials are armed with much more destructive and dangerous equipmentthan are regular police officers." Id. at 103.

193. BALKO, supra note 16, at 36.194. See supra INTRODUCTION; see also United States v. Banks, 540 U.S. 31, 33, 39 (2003) (finding

that, after announcing themselves, fifteen to twenty seconds was long enough for police to wait beforeentering even though the defendant was in the shower and did not hear the police announce themselves);BALKO, supra note 16, at 35-36.

195. BALKO, supra note 16, at 36.196. Id.197. See discussion supra Part HA-C.198. See Butler, supra note 22, at 451.199. See GA. CODE ANN. § 17-4-20(b) (2008) (allowing use of deadly force by police "when the

officer reasonably believes that the suspect poses an immediate threat of physical violence to the officeror others"); Allen v. City of Atlanta, 510 S.E.2d 64, 65-66 (Ga. Ct. App. 1998) (reversing an officer's

20101



not shoulder all the risks of a deadly encounter. 190 After all, police are significantly more prepared to deal with deadly situations and to avoid harm than private citizens. 191 For example, a typical SWAT team is equipped with, among other things, battle fatigues, bulletproof helmets and vests, gas masks, boot knives, and military grade assault weapons. 192 Also, officers who conduct raids are required to undergo at least one hour of training per month. 193 Compare that to a startled civilian with no martial experience and an old revolver who just woke up or came out of the shower. 194 As Balko notes, it is unrealistic and unfair to expect civilian occupants to "show remarkable poise and composure, exercise good judgment, and hold their fire, even as teams of armed assailants are swarming their homes.,,195 Police are in much better shape to evaluate and minimize the risks of breaking into a home unannounced. 196

D. Life and Justice for All

Allowing homeowners to defend themselves in good faith against no-knock police raids is the right and reasonable course to take. 197

However, the legislature and the courts may be put off by the resulting legal collision. 198 After all, during a no-knock entry, both the police and home dwellers would be able to legally kill each other. 199 Legalizing such deadly encounters will not solve the

190. See BALKO, supra note 16, at 35-36. 191. [d. 192. [d. at 5; see also ROBERT SNOW, SWAT TEAMS: EXPLOSIVE FACE-OFFS WITH AMERICA'S

DEADLIEST CRIMINALS 99-121 (1996) (describing weapons and other equipment used by SWAT teams). But note that "SWAT officials are armed with much more destructive and dangerous equipment than are regular police officers." [d. at 103.

193. BALKO, supra note 16, at 36. 194. See supra iNTRODUCTION; see also United States v. Banks, 540 U.S. 31,33,39 (2003) (finding

that, after announcing themselves, fifteen to twenty seconds was long enough for police to wait before entering even though the defendant was in the shower and did not hear the police announce themselves); BALKO, supra note 16, at 35-36.

195. BALKO, supra note 16, at 36. 196. [d. 197. See discussion supra Part II1A-C. 198. See Butler, supra note 22, at 451. 199. See GA. CODE ANN. § 17-4-20(b) (2008) (allowing use of deadly force by police "when the

officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others"); Allen v. City of Atlanta, 510 S.E.2d 64, 65-66 (Ga. Ct. App. 1998) (reversing an officer's

27




problem, but our justice system should not blame and punish thepolice or private citizens for taking reasonable actions in pursuit ofself-preservation. 2 0 Perhaps, as Balko said, "the fault lies with thebad public policy that puts police officers in such unnecessarilyperilous situations.' '2° 1 But adequate protection of both police andcitizens can be achieved without eliminating no-knock raidsaltogether and without imposing an actual unlawfulness requirementin section 16-3-23.202

In construing the defense of habitation statute, courts should applyan objective reasonableness standard in assessing the defendingoccupant's apprehension of danger, as is the case with self-defense.203 The courts should then enunciate the circumstances underwhich an occupant's belief that robbers are invading her house isobjectively reasonable.204 Thereby, officers in preparation for a no-knock raid would bear those circumstances in mind and would dotheir best to avoid inciting any reasonable apprehension of danger inthe occupant. And if worse comes to worst, the court will at leasthave a clear and fair framework for deciding whether the occupantwas justified in shooting.

To determine whether an occupant had an objectively reasonablebelief that her house was being robbed, courts may find it helpful to

suspension for shooting at an approaching car's driver when the latter failed to stop and drove towardsofficer); BALKO, supra note 16, at 35 (describing how even faultless officers will fire back at raid targetsin order to protect their own lives).

200. See BALKO, supra note 16, at 35.201. Id.202. But see id. at 26-27 (suggesting that no-knock raids are generally ineffective and do not serve

their ostensible purpose).203. See Lewis v. State, 515 S.E.2d 382, 383 (Ga. 1999) (holding that in self-defense, the "subjective

fears of a particular defendant are irrelevant"); Nelson v. State, 331 S.E.2d 554, 557 (Ga. 1985) (holdingthat when a person asserts self-defense, his actions are governed by a reasonable person standard); Bellv. Smith, 488 S.E.2d 91, 93 (Ga. Ct. App. 1997) ("The question is not whether [the defendant] actuallyfeared the occupants of the truck, but rather whether an objective reasonable person would havebelieved [the person protected] to be in imminent danger."). For Georgia's self-defense statute, see GA.CODE ANN. § 16-3-21 (2007).

204. Because the defense of habitation statute allows for immunity from prosecution, the court, notthe jury, will decide whether the circumstances in any given case create an objectively reasonable beliefin the occupant that criminals were invading her home. See Bunn v. State, 667 S.E.2d 605, 608 (Ga.2008); see also Fair v. State, 664 S.E.2d 227, 230 (Ga. 2008).

[Vol. 26:2



problem, but our justice system should not blame and punish the police or private citizens for taking reasonable actions in pursuit of self-preservation.2oo Perhaps, as Balko said, "the fault lies with the bad public policy that puts police officers in such unnecessarily perilous situations.,,201 But adequate protection of both police and citizens can be achieved without eliminating no-knock raids altogether and without imposing an actual unlawfulness requirement in section 16_3_23.202

In construing the defense of habitation statute, courts should apply an objective reasonableness standard in assessing the defending occupant's apprehension of danger, as is the case with selfdefense.203 The courts should then enunciate the circumstances under which an occupant's belief that robbers are invading her house is objectively reasonable.204 Thereby, officers in preparation for a noknock raid would bear those circumstances in mind and would do their best to avoid inciting any reasonable apprehension of danger in the occupant. And if worse comes to worst, the court will at least have a clear and fair framework for deciding whether the occupant was justified in shooting.

To determine whether an occupant had an objectively reasonable belief that her house was being robbed, courts may find it helpful to

suspension for shooting at an approaching car's driver when the latter failed to stop and drove towards officer); BALKO, supra note 16, at 35 (describing how even faultless officers will fIre back at raid targets in order to protect their own lives). 200. See BALKO, supra note 16, at 35. 201. [d. 202. But see id. at 26-27 (suggesting that no-knock raids are generally ineffective and do not serve

their ostensible purpose). 203. See Lewis v. State, 51S S.E.2d 382, 383 (Ga. 1999) (holding that in self-defense, the "subjective

fears of a particular defendant are irrelevant"); Nelson v. State, 331 S.E.2d 554, 557 (Ga. 1985) (holding that when a person asserts self-defense, his actions are governed by a reasonable person standard); Bell v. Smith, 488 S.E.2d 91, 93 (Ga. Ct. App. 1997) (''The question is not whether [the defendant] actually feared the occupants of the truck, but rather whether an objective reasonable person would have believed [the person protected] to be in imminent danger."). For Georgia's self-defense statute, see GA. CODE ANN. § 16-3-21 (2007).

204. Because the defense of habitation statute allows for immunity from prosecution, the court, not the jury, will decide whether the circumstances in any given case create an objectively reasonable belief in the occupant that criminals were invading her home. See BUDD v. State, 667 S.E.2d 605, 608 (Ga. 2008); see also Fair v. State, 664 S.E.2d 227, 230 (Ga. 2008).

28



COPS OR ROBBERS?

consider several factors. 205 For example, the defendant's generalbehavior may be relevant: if the defendant is a previously convictedfelon or is engaged in habitual and serious criminal activity, he maybe more aware of the possibility of a police raid and would be morelikely to knowingly kill an officer than an innocent person.2 °6 Alsoimportant are the time of day and the character of theneighborhood-if it is nighttime, or if there have been previous homeinvasions in the area, the occupants might be more likely to think thatrobbers are breaking in.207 Finally, the method of entry should becarefully examined.20 8 If police use loudspeakers or sirens to alert theoccupant of their presence; if they wear uniforms rather than plainclothes; and if they enter in an organized rather than a "violent andtumultuous" 20 9 manner, then the occupant would be less likely tomistake the police for robbers. 210

Clear guidelines as to what constitutes reasonable belief wouldalleviate tensions both in court and in the field. Police would beencouraged to evaluate more seriously whether the occupant mightreasonably mistake them for robbers, thereby reducing the chance ofa deadly encounter. 211 Furthermore, trigger-happy occupants wouldalso be kept in check. After all, innocent landlords, deliverymen,postal workers, and salesmen do not forcefully break into houses atnight.212 And if a shooting does occur, the objective reasonable belief

205. For example, courts consider several factors to determine whether a warrantless, non-consensualentry is justified. E.g., United States v. Standridge, 810 F.2d 1034, 1037 (11 th Cir. 1987).206. Cf United States v. Knights, 534 U.S. 112, 119-20 (2001) (holding that a probationer has a

lesser expectation of privacy, with respect to police searches, than an ordinary citizen). But a criminalmay also be more likely to think that he is being attacked by a rival gang or other criminals. No-KnockSearch Warrants: Weighing Risks vs. Benefits, MACON TEL. (Ga.), Aug. 7, 2007, available at 2007WLNR 15103314; see also BALKO, supra note 16, at 32.207. Cf United States v. Magda, 547 F.2d 756, 758 (2d Cir. 1976) (holding that, with respect to the

reasonableness of a police stop, "[t]he reputation of an area for criminal activity is an articulable factupon which a police officer may legitimately rely").208. This is not to propose eliminating no-knock entries altogether. Police may sufficiently surprise

the occupant without provoking a deadly reaction by making their presence known during, not before,entry. A person awakened to the sound of loudspeakers and sirens is not likely to think that robbers areinvading; real criminals would probably not want to announce themselves to the whole neighborhood.209. GA. CODE ANN. § 16-3-23(1) (2007).210. See Simmons, supra note 187; see also Long, supra note 183.211. See BALKO, supra note 16, at 41-42 (advocating tighter search warrant standards).212. Cf People v. McNeese, 892 P.2d 304, 311 (Colo. 1995) (saying that Colorado's defense of

habitation statute was not meant to "encourage arbitrary, casual killings").

20101



consider several factors.205 For example, the defendant's general behavior may be relevant: if the defendant is a previously convicted felon or is engaged in habitual and serious criminal activity, he may be more aware of the possibility of a police raid and would be more likely to knowingly kill an officer than an innocent person.206 Also important are the time of day and the character of the neighborhood-if it is nighttime, or if there have been previous home invasions in the area, the occupants might be more likely to think that robbers are breaking in?07 Finally, the method of entry should be carefully examined?08 If police use loudspeakers or sirens to alert the occupant of their presence; if they wear uniforms rather than plain clothes; and if they enter in an organized rather than a "violent and tumultuous,,209 manner, then the occupant would be less likely to mistake the police for robbers.2lo

Clear guidelines as to what constitutes reasonable belief would alleviate tensions both in court and in the field. Police would be encouraged to evaluate more seriously whether the occupant might reasonably mistake them for robbers, thereby reducing the chance of a deadly encounter.211 Furthermore, trigger-happy occupants would also be kept in check. After all, innocent landlords, deliverymen, postal workers, and salesmen do not forcefully break into houses at night.212 And if a shooting does occur, the objective reasonable belief

205. For example, courts consider several factors to determine whether a warrantless, non-consensual entry is justified. E.g., United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir. 1987). 206. Cf United States v. Knights, 534 U.S. 112, 119-20 (2001) (holding that a probationer has a

lesser expectation of privacy, with respect to police searches, than an ordinary citizen). But a criminal may also be more likely to think that he is being attacked by a rival gang or other criminals. No-Knock Search Warrants: Weighing Risks vs. Benefits, MACON TEL. (Ga.), Aug. 7, 2007, available at 2007 WLNR 15103314; see also BALKO, supra note 16, at 32. 207. Cf United States v. Magda, 547 F.2d 756,758 (2d Cir. 1976) (holding that, with respect to the

reasonableness of a police stop, "[t]he reputation of an area for criminal activity is an articulable fact upon which a police officer may legitimately rely"). 208. This is not to propose eliminating no-knock entries altogether. Police may sufficiently surprise

the occupant without provoking a deadly reaction by making their presence known during, not before, entry. A person awakened to the sound of loudspeakers and sirens is not likely to think that robbers are invading; real criminals would probably not want to announce themselves to the whole neighborhood. 209. GA. CODE ANN. § 16-3-23(1)(2007). 210. See Simmons, supra note 187; see also Long, supra note 183. 211. See BALKO, supra note 16, at 41-42 (advocating tighter search warrant standards). 212. Cf People v. McNeese, 892 P.2d 304, 311 (Colo. 1995) (saying that Colorado's defense of

habitation statute was not meant to "encourage arbitrary, casual killings").

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standard as to the unlawfulness of the entry would ensure that homedwellers do not get punished for acting reasonably and that only themost culpable individuals wind up in prison or on death row.

CONCLUSION

"Innocent citizens should not suffer the shock, fright orembarrassment attendant upon an unannounced police intrusion. ' 213

But the deterioration of the knock-and-announce requirement makesit easier for law enforcement to lawfully conduct no-knock raids214

and increases the risk of deadly encounters between police andcitizens.2 15 Like the story of Kathryn Johnston has shown, even law-abiding civilians may not surrender without a fight when strangersviolently break into their homes. 216 As killings tend to invite criminalcharges, Georgia's defense of habitation statute may offer a criticallegal defense to occupants who use deadly force against police uponmistaking them for robbers. 217 The key question is whether, under thestatute, the intruder's entry must actually be unlawful, or whether theoccupant may shoot upon reasonable belief that the entry isunlawful.218

Though the statutory text alone does not provide a clear answer,2 1 9

instruments of textual interpretation are consistent with theproposition that the occupant need only reasonably believe that theentry is unlawful. 220 Further, an exploration of relevant case lawshows that Georgia allows its residents to defend themselves againstreasonably perceived threats, even if those threats appear in a police

213. Ker v. California, 374 U.S. 23, 57 (1963) (Brennan, J., concurring).214. See BALKO, supra note 16, at 30.215. Butler, supra note 22, at 453.216. See discussion supra INTRODUCTION.

217. See discussion supra Part LB; see also Balko, supra note 16, at 35 ("[Occupants] who have usedforce to defend themselves from improper raids have been prosecuted for criminal recklessness,manslaughter, and murder and have received sentences ranging from probation, to life in prison, to thedeath penalty.").

218. See discussion supra Part I.A.219. See discussion supra Part B1.A.220. See discussion supra Part l1.A.1-2.

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standard as to the unlawfulness of the entry would ensure that home dwellers do not get punished for acting reasonably and that only the most culpable individuals wind up in prison or on death row.

CONCLUSION

"Innocent citizens should not suffer the shock, fright or embarrassment attendant upon an unannounced police intrusion.,,213 But the deterioration of the knock-and-announce requirement makes it easier for law enforcement to lawfully conduct no-knock raids214

and increases the risk of deadly encounters between police and citizens?15 Like the story of Kathryn Johnston has shown, even lawabiding civilians may not surrender without a fight when strangers violently break into their homes.216 As killings tend to invite criminal charges, Georgia's defense of habitation statute may offer a critical legal defense to occupants who use deadly force against police upon mistaking them for robbers.217 The key question is whether, under the statute, the intruder's entry must actually be unlawful, or whether the occupant may shoot upon reasonable belief that the entry is unlawful. 218

Though the statutory text alone does not provide a clear answer,219 instruments of textual interpretation are consistent with the proposition that the occupant need only reasonably believe that the entry is unlawful. 220 Further, an exploration of relevant case law shows that Georgia allows its residents to defend themselves against reasonably perceived threats, even if those threats appear in a police

213. Ker v. California, 374 U.S. 23, 57 (1963) (Brennan, J., concurring). 214. See BALKo,supra note 16,at30. 215. Butler, supra note 22, at 453. 216. See discussion supra iNTRODUCTION.

217. See discussion supra Part I.B; see also Balko, supra note 16, at 35 ("[Occupants] who have used force to defend themselves from improper raids have been prosecuted for criminal recklessness, manslaughter, and murder and have received sentences ranging from probation, to life in prison, to the death penalty. ").

218. See discussion supra Part II.A. 219. See discussion supra Part II.A. 220. See discussion supra Part II.A.1-2.

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COPS OR ROBBERS?

uniform.22 1 Finally, with a view to legal precedent, those few casesthat have applied defense of habitation to police encounters areconsistent with exculpating an occupant who has a reasonableapprehension of danger.222

Courts should interpret the defense of habitation statute to requireonly reasonable belief that the entry is unlawful.223 Otherwise, theoccupant faces a cruel dilemma.224 If he shoots, he risks beingcharged with capital murder of a police officer, 225 but if he waits toascertain the intruder's identity, he exposes himself to robbers orpolice impersonators. 226 Georgia legislature certainly did not intendfor such dreadful hesitation to destroy the protections bestowed bythe statute.227

Requiring only reasonable belief is not likely to endanger officersor encourage thoughtless shootouts.228 In fact, courts can promotemore police caution and safety by creating clear guidelines as to whatconstitutes reasonable belief of danger in an occupant.229 Such

guidelines will encourage officers to consider the reasonableapprehensions of the occupant before any no-knock raid, therebyavoiding a mistaken, but deadly reaction.230 And if a tragedy doesoccur, such guidelines will ensure that any defendant's punishment is"tailored to his personal responsibility and moral guilt." 231

221. See discussion supra Part ll.B.222. See discussion supra Part II.C.223. See discussion supra Part HI.224. See discussion supra Part IHL.A-B.225. See discussion supra Part III.A.226. See discussion supra Part /I.B.227. See discussion supra Part II.A.3.228. See discussion supra Part l/I.D.229. See discussion supra Part lI.D.230. See discussion supra Part llI.D.231. Enmund v. Florida, 458 U.S. 782, 801 (1982); see also discussion supra Part III.D.

20101



uniform.221 Finally, with a view to legal precedent, those few cases that have applied defense of habitation to police encounters are consistent with exculpating an occupant who has a reasonable apprehension of danger.222

Courts should interpret the defense of habitation statute to require only reasonable belief that the entry is unlawfu1.223 Otherwise, the occupant faces a cruel dilemma.224 If he shoots, he risks being charged with capital murder of a police officer,225 but if he waits to ascertain the intruder's identity, he exposes himself to robbers or police impersonators.226 Georgia legislature certainly did not intend for such dreadful hesitation to destroy the protections bestowed by the statute?27

Requiring only reasonable belief is not likely to endanger officers or encourage thoughtless shootouts?28 In fact, courts can promote more police caution and safety by creating clear guidelines as to what constitutes reasonable belief of danger in an occupant. 229 Such guidelines will encourage officers to consider the reasonable apprehensions of the occupant before any no-knock raid, thereby avoiding a mistaken, but deadly reaction.23o And if a tragedy does occur, such guidelines will ensure that any defendant's punishment is "tailored to his personal responsibility and moral guilt.,,231

221. See discussion supra Part II.B. 222. See discussion supra Part II.C. 223. See discussion supra Part III. 224. See discussion supra Part III.A-B. 225. See discussion supra Part III.A. 226. See discussion supra Part III.B. 227. See discussion supra Part II.A.3. 228. See discussion supra Part III.D. 229. See discussion supra Part III.D. 230. See discussion supra Part III.D. 231. Enmund v. Florida, 458 U.S. 782, 801 (1982); see also discussion supra Part IlI.D.

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cops or robbers? how georgia's defense of habitation

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