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Old August 3, 2014, 08:45 AM   #5
Frank Ettin
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Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,471
Quote:
Originally Posted by Koda94
...My question is, how is it possible she could be allowed to use lethal force to stop a vehicle theft if she was not in jeopardy?...
Several things to keep in mind:
  1. This happened only a few days ago. The article, updated 28 July 2014, says that:
    Quote:
    ...Police are still investigating the case as of right now. No charges have been filed against Olearnick.
    so --

    1. As of the 28th of July, the investigation was ongoing; and

    2. No charges had at the time been filed against the woman. That doesn't mean that charges might not ultimately be filed.

  2. There is such a thing a prosecutorial discretion. So even if the prosecutor believes he could pursue a case against the women, he might decide not to. But discretion is still discretion and not something one may rely on.

  3. The basic Georgia statute relating to self defense, O.C.G.A. § 16-3-21, reads (emphasis added):
    Quote:
    ...(a) 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....
    1. The exception, O.C.G.A. § 16-3-23, reads (emphasis added):
      Quote:
      Use of force in defense of habitation

      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.
    2. And a forcible felony is, under Georgia law, O.C.G.A. § 16-1-3:
      Quote:
      (6) "Forcible felony" means any felony which involves the use or threat of physical force or violence against any person.

  4. We really don't have all the facts, and details matter a great deal.
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