Aggravated Assault With a Deadly Weapon and Self-Defense in Georgia

An aggravated assault with a deadly weapon charge can arise from a shooting or stabbing, but it can also be filed when no one was physically injured. Georgia law permits an assault prosecution based on an attempted violent injury or conduct that placed another person in reasonable apprehension of immediately receiving a violent injury.

Self-defense may defeat the charge when the accused reasonably used force to stop an imminent unlawful attack. The legal question is not simply whether a weapon was present. The complete sequence of events matters.

Georgia’s Aggravated Assault Law

Under O.C.G.A. § 16-5-21(a)(2), aggravated assault includes an assault committed with a deadly weapon or with an object, device or instrument that, when used offensively, is likely to or actually does cause serious bodily injury.

Unless a special sentencing provision applies, aggravated assault is generally punishable by one to twenty years in prison. Different minimum sentences may apply based on the alleged victim, location or circumstances.

The State must prove the form of assault alleged in the charging document and the aggravating weapon or object element. The precise language of the accusation or indictment can be important.

A Deadly Weapon Is Not Limited to Guns and Knives

Some items are deadly weapons by design or obvious capacity. Other objects may become alleged deadly weapons because of how they were used. A vehicle driven toward a person, a bottle swung at someone’s head or a heavy tool used to strike may support the charge. In limited circumstances, hands or feet may also be treated as deadly weapons based on their manner of use and the evidence.

A defense investigation may examine:

• The object’s size, weight, condition and location

• How it was held, moved or discharged

• Distance and barriers between the people

• The alleged target and direction of movement

• Injuries, impact marks, ballistics and scene evidence

• Whether witnesses could see the key moment

Ordinary Force Versus Deadly Force

Georgia generally permits a person to use force when the person reasonably believes it is necessary to defend against imminent unlawful force. Force intended or likely to cause death or great bodily injury is governed by a stricter rule. It is generally justified only when reasonably necessary to prevent death, great bodily injury or a forcible felony.

Displaying a weapon, pointing it, firing a warning shot and firing at a person can present different factual and legal questions. A person may be justified in using some force but lose protection by escalating beyond what reasonably appeared necessary.

Georgia’s stand-your-ground statute provides no duty to retreat when a person is otherwise justified. It does not remove the need for a reasonable belief, an imminent threat and a proportionate response. Self-defense may also be restricted when the accused provoked the encounter to cause harm, was committing or fleeing a felony or was the aggressor without effectively withdrawing.

Defense of Others, Habitation and Property

Georgia law also recognizes defense of other people and, in defined circumstances, defense of a habitation. Deadly force ordinarily cannot be used merely to protect property. The specific statute and facts must be analyzed before assuming a use of force was justified.

Evidence That Can Build or Break the Claim

Important evidence may include surveillance or cellphone video, 911 recordings, body-camera footage, ballistics, trajectory evidence, vehicle damage, photographs, medical records, location data and neutral eyewitnesses. Original evidence should be preserved without editing, cleaning or disposing of an object connected to the case.

Pretrial Self-Defense Immunity

Under O.C.G.A. § 16-3-24.2, justified force may provide immunity from prosecution. The accused generally must prove the claim by a preponderance of the evidence at a hearing. If immunity is denied, self-defense may still be raised at trial when supported by sufficient evidence.

Frequently Asked Questions

Can aggravated assault be charged if no one was hurt?

Yes. An assault may be based on an attempted injury or conduct creating reasonable apprehension of an immediate violent injury.

What is the general sentence?

The general statutory range is one to twenty years in prison, although special circumstances can result in different minimums.

Does Georgia require retreat before using force?

Georgia has no duty to retreat when a person is otherwise justified. That rule does not excuse unreasonable, excessive or retaliatory force.

Speak With an Atlanta Criminal Defense Attorney

The Jerome Law Firm P.A. represents clients facing criminal charges in Fulton, DeKalb, Clayton and Gwinnett counties. Contact Serge Jerome Jr. at The Jerome Law Firm PA (404) 720-8141.

This article provides general information about Georgia law and is not legal advice. Reading it does not create an attorney-client relationship. Every case is different.