State v. COPELAND (Three Cases)

FINAL COPY

             S20A0820. THE STATE v. COPELAND.
               S20A0821. THE STATE v. SCOTT.
              S20A0822. THE STATE v. HOWELL.


     BETHEL, Justice.

     A Washington County grand jury indicted former sheriff’s

deputies Henry Lee Copeland, Rhett Scott, and Michael Howell for

felony murder and other offenses in connection with the death of

Eurie Lee Martin. Each defendant sought immunity from

prosecution under OCGA § 16-3-24.2, claiming that his actions

resulting in Martin’s death were in defense of himself or others.

Following a hearing, the trial court issued an order granting

immunity to Deputies Copeland, Scott, and Howell, and the State

appealed. We determine that, in granting immunity, the trial court

made findings of material fact that were inconsistent with its legal

conclusions regarding the deputies’ encounter with Martin,

conflated principles regarding the reasonable use of force by law

enforcement with self-defense and immunity, made unclear findings
of material fact with respect to whether any or all of the deputies

used force intended or likely to cause death, and did not address the

facts pertinent to each of the three deputies individually. For these

reasons, we vacate the trial court’s ruling and remand the cases for

further consideration consistent with this opinion.

     1. “On appeal [from an order on a motion under OCGA § 16-3-

24.2], we review the evidence in the light most favorable to the trial

court’s ruling, and we [generally] accept the trial court’s findings

with regard to questions of fact and credibility if there is any

evidence to support them.” (Citation and punctuation omitted.) State

v. Green, 

 (2) (

) (2010). However, the Court

“owes no deference to a trial court’s factual findings gleaned from a

review of a videotape that are not the subject of testimony requiring

the trial court’s weighing of credibility or resolving of conflicts in the

evidence.” Clay v. State, 

 (1) (A) (2) n.1 (

) (2012). This Court conducts a de novo review of a trial court’s

legal application of OCGA § 16-3-24.2. See Green, 

 (2).

     In its order granting immunity, the trial court made factual

                                    2
findings based upon the evidence presented at the immunity

hearing, which included the testimony of the deputies and other

witnesses. In addition, a number of other facts are plainly

established by video and audio recordings admitted into evidence at

the hearing, which were made before and during the deputies’

encounter with Martin. The trial court’s findings are set forth below,

as well as facts clearly evident from video and audio recordings,

where indicated.

     On July 7, 2017, Martin was walking along Deepstep Road in

Washington County on a very hot afternoon. Along the way, he

walked up the driveway of a home on that two-lane road and

requested a drink of water from the homeowner by motioning with

a cut-off Coke can that he was carrying. The homeowner, who was

concerned by Martin’s unkempt appearance, refused Martin’s

request. Martin continued on his way, but the homeowner called 911

to report Martin, describing him on the 911 recording as a “black

man, probably 50-plus-years-old, about 6´3˝, 220 pounds,” and



                                  3
saying that he did not know if Martin was “crazy, drunk, or what.” 1

The homeowner did not indicate that Martin approached merely to

request water.

     Deputy Howell responded to the “suspicious person” call first,

observed Martin walking “in the roadway,” and attempted to speak

with Martin from his patrol car, asking Martin his name and

whether Martin was okay. Martin responded by asking, “Who are

you?” and then kept walking. Deputy Howell then radioed for

backup, activated his vehicle’s blue lights, and slowly followed

behind Martin. After activating the blue lights, Deputy Howell’s

dashboard camera recording system, which recorded video and

audio, was also activated. The video recording taken from that

camera shows Martin walking on the left side of the road, which had

no sidewalk, on or near the fog-line.

     Deputy Copeland responded to Deputy Howell’s call for backup

and arrived about two-and-a-half minutes later. Deputy Copeland


     1 It was later learned that Martin had a long history of mental illness

and treatment, but the deputies did not know this during their encounter with
Martin.
                                     4
approached from the other direction on Deepstep Road with his

vehicle’s blue lights activated and his dashboard camera recording

and pulled his vehicle to the side of the road on which Martin was

walking, blocking Martin’s path. Martin then began to walk across

the road. Dashboard camera recordings show that Deputy Copeland

exited his vehicle, instructed Martin to “come here,” and then

repeatedly told Martin to “get out of the road.” Martin can be heard

on Deputy Copeland’s dashboard camera recording saying, “Leave

me alone,” “I ain’t messin’ with you, man” and “I ain’t did nothing.”

At this point, Martin and Deputy Copeland walked down the road

and out of frame of both dashboard camera recordings. A few

moments later, Deputy Howell is shown approaching Deputy

Copeland.

     The trial court found, relying on Deputy Howell’s and Deputy

Copeland’s testimony, that during the period in which all three men

are out of frame, Martin “thr[ew] down [a] Coke can,” took “a

defensive stance”   and “cl[e]nche[d] his fists,” causing Deputies



                                 5
Howell and Copeland to believe that Martin was “about to fight.”2

The trial court further found that Deputy Copeland “then repeatedly

command[ed] Mr. Martin to stop and put his hands behind his back.”

Deputy Howell then asked Deputy Copeland if he had his TASER,3

and told Deputy Copeland to “tase his a**.”4 Deputy Copeland told

Martin to stop, put his hands behind his back, and get on the ground,

and then warned Martin that the deputy would “tase” him if he

refused. Martin did not comply with the deputies’ instructions, and

Deputy Copeland shot Martin with his TASER.5 Martin fell to the


      2  When the trial court discussed this part of the encounter in its
conclusions of law, the court relied on Deputy Copeland’s testimony to note
that Martin exhibited a “threatening demeanor” that included turning toward
Deputy Copeland with “clenched fists” and “‘bowing up’ in a combative
posture.”
      3 “TASER is the tradename for electroshock guns, which are used widely

by law enforcement agencies world-wide. The name ‘TASER’ is an acronym for
‘Thomas A. Swift’s Electric Rifle,’ designed in 1969 by inventor Jack Cover.”
(Citation and punctuation omitted.) Eberhart v. State, 

 (1) n.2
(

) (2019).
      4 We note, however, that a review of the dashboard camera recordings

does not support a finding that either deputy commanded Martin to stop or put
his hands behind his back before the order to “tase his a**” was given by
Deputy Howell, which came less than 30 seconds after the deputies exited their
vehicles.
      5 The trial court found, based on GBI agent testimony and the TASER

download summary, that Deputy Copeland’s TASER was activated four times
with a total of 28 seconds of electrical discharge in this part of the encounter,

                                       6
ground and then removed a TASER probe from his arm, stood back

up, and continued walking away from the deputies. Deputy Howell

radioed Deputy Scott for backup and told him that they had shot

Martin with the TASER but that he was “still fighting.”

      On a bystander’s video recording, Martin can be seen walking

away from the deputies and up a small hill and into the yard of a

residence, followed closely by Deputies Howell and Copeland. The

trial court found that as the deputies were following Martin, they

continued to instruct him to stop and get on the ground or he would

be “tased.” Martin ignored the deputies’ instructions, walked faster,

and then swung at Deputy Copeland when Deputy Copeland moved

close to him.6

      Deputy Scott arrived soon thereafter, and Deputy Howell told



although it is unclear how long Martin actually received an electrical
discharge.
      6 Due to the perspective of the bystander’s video, it is not clear if Martin

swung at Deputy Copeland. The trial court noted in its order that while there
was “no ‘clear’ view of the strike,” the court reached its conclusion “based upon
the movement shown in the [bystander’s] video, the deputies’ testimony, and
the videographer’s contemporaneous comments” that “Oh, I [inaudible] that
n****r don’t swing on that cracker. They gonna bust his a**.” This evidence
supports the trial court’s finding.
                                        7
Deputy Scott that Martin was “tased” once and it “didn’t phase [sic]

him.” All three deputies encircled Martin, who was, at that point,

standing with his arms by his side. Martin did not comply with the

deputies’ continued instructions to get on the ground, and Deputy

Scott, who was positioned more or less behind Martin, then lifted

Martin’s shirt and deployed his TASER from a close distance to

Martin’s back.7 According to the trial court, Martin spun “toward

Deputy Scott with his arms flailing in an attempt to dislodge the

[TASER] probes and possibly to hit Deputy Scott.” Martin then fell

to the ground. The deputies converged on him, repeatedly

commanding him to roll over and show his hands.

     The deputies secured a handcuff to Martin’s right hand, but his

left hand remained tucked under his body as he and the deputies

“struggle[d].” Deputies Howell and Copeland8 shocked Martin with



     7 The trial court found, relying on the TASER download summary, that

Deputy Scott’s TASER was activated a total of eight times for a combined
duration of 61 seconds, though it is unclear how long Martin actually received
an electrical discharge.
      8 The trial court found, relying on the TASER download summary, that

Deputy Copeland’s TASER was activated three times with a total electrical

                                      8
“drive stuns” using TASERs9 and attempted to pry his left arm from

under his body to finish handcuffing him, telling him that if he

would roll over it would stop. The deputies testified that once

Martin’s right hand was cuffed, it was imperative to cuff his other

hand because a loose handcuffed hand is a potentially lethal threat.

After Martin was handcuffed, the tasing ceased. He remained on the

ground, and a first responder who arrived at the scene found that

Martin did not have a pulse and began performing CPR on him.

Martin, however, did not resuscitate and died at the scene.

     Deputies Copeland, Howell, and Scott were indicted on two

counts each of felony murder and involuntary manslaughter and one

count each of false imprisonment, aggravated assault, simple

assault, and reckless conduct. They filed motions for immunity

under OCGA § 16-3-24.2, which the trial court granted following the

hearing and briefing.



charge duration of 25 seconds, though it is unclear how long Martin actually
received an electrical discharge.
      9 Deputy Howell testified that, during this time, he used Deputy Scott’s

TASER, which had been dropped at an earlier point in the encounter with
Martin.
                                      9
     2. The State appeals the grant of those motions, arguing that

the trial court, in relying upon State v. Hall, 

 (

) (2016), impermissibly expanded the scope of OCGA § 16-

3-24.2 beyond the plain meaning of the statute. More specifically,

the State argues that the trial court failed to make a finding that

the deputies acted in self-defense and that, instead, the trial court

conflated the law of self-defense pertinent to OCGA § 16-3-24.2 with

the law pertaining to justification set forth in OCGA § 16-3-20 (2)

and (4), which is not relevant to the trial court’s analysis of the

motions under OCGA § 16-3-24.2.

     We hold that the trial court made factual findings that were

inconsistent with its legal conclusions in support of its grants of

immunity in favor of Deputies Copeland, Scott, and Howell under

OCGA § 16-3-24.2, conflated legal concepts that are relevant to the

immunity motion with concepts that are not relevant, made unclear

findings of material fact with respect to whether any or all of the

deputies used force intended or likely to cause death, and did not

make individualized determinations as to whether each deputy was

                                 10
entitled to immunity based on the facts pertinent to each. We

therefore vacate the trial court’s order granting immunity in all

three cases and remand these cases so that the trial court can

reconsider the motions for immunity consistent with this opinion.

     (a) The immunity statute.

     OCGA § 16-3-24.2 provides that a person is immune from

prosecution where he can demonstrate by a preponderance of the

evidence that he threatened or used force based on a reasonable

belief that such threat or force was necessary to defend himself or a

third person against another’s imminent use of unlawful force. See

OCGA §§ 16-3-24.2;10 16-3-21. See also Mullins v. State, 

 (1) (

) (2010); Bunn v. State, 

 (3)

(

) (2008). When the person claiming immunity uses

force intended or likely to cause death or great bodily harm, that



     10 OCGA § 16-3-24.2 also provides that a person who uses threats or force

in defense of habitation under OCGA § 16-3-23, in defense of property other
than habitation under OCGA § 16-3-24, or under OCGA § 16-3-23.1 (no duty
to retreat) is immune from prosecution. However, Deputies Copeland, Scott,
and Howell did not raise any claim of immunity under these other provisions,
and we do not consider them here.

                                     11
person must also prove by a preponderance of the evidence that such

potentially lethal force was based on a reasonable belief that the

force was necessary to prevent death or great bodily injury at the

hands of the alleged victim or to prevent the commission of a forcible

felony. See OCGA § 16-3-21 (a).11 A person is not justified in using

force in self-defense if he was the aggressor. See OCGA § 16-3-21 (b)

(3).12 Law enforcement officers may seek immunity from prosecution


     11 OCGA § 16-3-21 (a) provides in full:

            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 [defense
     of habitation], 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.

     12 OCGA § 16-3-21 (b) provides in full:

            A person is not justified in using force under the
     circumstances specified in subsection (a) of this Code section if he:
                 (1) Initially provokes the use of force against himself
     with the intent to use such force as an excuse to inflict bodily harm
     upon the assailant;
                 (2) Is attempting to commit, committing, or fleeing
     after the commission or attempted commission of a felony; or
                 (3) Was the aggressor or was engaged in a combat by
     agreement unless he withdraws from the encounter and effectively
     communicates to such other person his intent to do so and the

                                      12
under OCGA § 16-3-24.2 when they are indicted based on their

threats or use of force. See State v. Thompson, 

 (

) (2010); Bunn, 

 (3). When they do, their

evidentiary burden is identical to that of any other defendant. See

Thompson, 288 Ga. at 169.

     (b) Tiers of police-citizen encounters.

     Because Deputies Copeland, Scott, and Howell encountered

Martin in their capacity as law enforcement officers, it was also

relevant for the trial court to consider the legal classification of their

encounter with Martin. As we have explained,

     [t]here are at least three types of police-citizen
     encounters: verbal communications that involve no
     coercion or detention; brief stops or seizures that must be
     accompanied by a reasonable suspicion; and arrests,
     which can be supported only by probable cause.

(Citation and punctuation omitted.) Jones v. State, 

(1) (

) (2012).

     In a “first-tier” encounter, officers

     may approach citizens, ask for identification, and freely

     other, notwithstanding, continues and threatens to continue the
     use of unlawful force.
                                   13
     question the citizen without any basis or belief that the
     citizen is involved in criminal activity, as long as the
     officers do not detain the citizen or create the impression
     that the citizen may not leave[.] So long as a reasonable
     person would feel free to disregard the police and go about
     his business, the encounter is consensual and no
     reasonable suspicion is required.

(Citation and punctuation omitted.) In the Interest of D. H., 

 (2) (

) (2009). Importantly, an officer may not use

force to effectuate a first-tier encounter as an officer in such an

encounter has no authority to detain or restrict the liberty of a

citizen, and the citizen has the right to withdraw from the encounter

or resist any such use of force with a proportionate use of force. See

Ewumi v. State, 

 (1) (b) (

)

(2012) (“[B]ecause [the] arrest was unlawful, [the suspect] was

justified in resisting the attempted arrest with all force that was

reasonably necessary to do so.”); Black v. State, 

(1) (

) (2006) (a citizen has the right to ignore police and

avoid them even by running away in a first-tier encounter); Brooks

v. State, 

 (2) (

) (1992) (if police

lack probable cause or articulable suspicion to authorize a seizure of

                                  14
an individual, the individual is entitled to resist the unlawful

seizure). See also Glenn v. State, ___ Ga. ___ (1) (___ SE2d ___)

(2020) (discussing at length the right to resist an unlawful arrest

under Georgia law).

      In a “second-tier” encounter, when an officer develops a

reasonable, articulable suspicion that the citizen is committing or

has committed a crime, the officer then has the authority to detain

the citizen for an investigative stop, or what has come to be known

as a “Terry stop.”13 See State v. Walker, 

 (

) (2014). In a second-tier encounter, the suspect’s physical

resistance to his detention is unlawful. See, e.g., Miller v. State, 

, 765 (

) (2019) (individual’s ability to

withdraw from a consensual first-tier encounter does not apply to a

second-tier encounter); Sims v. State, 

 (

) (2016) (individual may not resist and walk away from a

Terry stop). In a second-tier encounter, the officer may also take



      13 See Terry v. Ohio, 

 (III) (

, 20 LE2d 889)

(1968).
                                    15
reasonable steps to protect his safety and the safety of others while

detaining the individual. See, e.g., Gray v. State, 

 (1) (

) (2009) (relying on Holsey v. State, 

 (6) (

) (1999)).

     In a “third-tier” encounter, when an officer has probable cause

to believe that an individual is committing or has committed a crime,

the officer is authorized to make an arrest and take the individual

into custody. See Jones, 

 (1). When an officer with

probable cause seeks to arrest an individual, that person is not free

to flee or resist the arrest, although he retains the right not to speak

with the officer. See U. S. Const. Amend. V; Miranda v. Arizona, 

 (

, 16 LE2d 694) (1966); Ga. Const. of

1983, Art. I, Sec. I, Par. XVI; Fairwell v. State, 

 (1) (a) (

) (2011) (unlawful for suspect to flee

pursuing police officer in an attempt to escape arrest); Smith v.

State, 

 (1) (

) (1951) (“If the attempted

arrest was legal [the suspect] had no right whatever to resist it; if it

was illegal, he had the right to resist with all force necessary for that

                                   16
purpose.”). However, a police officer “is authorized to use only that

degree of force that is reasonably necessary to accomplish the

detention or arrest, and may not use excessive force.” Ramirez v.

State, 

 (10) (

) (2005).

     (c) Analysis of the trial court’s findings and conclusions.

     In its order granting immunity, the trial court concluded that

Deputies Howell and Copeland were engaged in a first-tier

encounter from the time they first encountered Martin on the

roadside until he demonstrated what the trial court found to be a

“threatening demeanor” by turning toward Deputy Copeland and

“‘bowing up’ in a combative posture.” This finding, located in the

trial court’s conclusions of law, was apparently based on the trial

court’s factual findings that Martin “thr[ew] down a Coke can,” took

“a defensive stance,” and “cl[e]nche[d] his fists” after Deputy

Copeland followed Martin as he walked away out of view of the

dashboard cameras. The trial court concluded that Martin’s conduct

at that point “provided an articulable suspicion” for Deputies

Copeland and Howell to investigate “the possible offenses of

                                  17
loitering . . . and walking upon highway,”14 and at that point, the

encounter became a second-tier encounter.

      (i) Contrary to the trial court’s conclusion, however, the court’s

express findings of fact and the recordings of the incident show that

there was no legal basis to detain Martin for loitering at that time.

OCGA § 16-11-36 (a) provides that “[a] person commits the

[misdemeanor] offense of loitering . . . when he is in a place at a time

or in a manner not usual for law-abiding individuals under

circumstances that warrant a justifiable and reasonable alarm or

immediate concern for the safety of persons or property in the

vicinity.” There was simply no evidence that Martin, who was



      14 The deputies argue on appeal that when Martin “thr[ew] down” the

can he was carrying, they had reasonable suspicion to investigate him for
littering in violation of OCGA § 16-7-43 (a), which provides that it is a
misdemeanor “for any person . . . to dump, deposit, throw, or leave . . . litter on
any public or private property in this state[.]” Deputy Howell alone also argues
that he was justified in stopping Martin to investigate him for criminal
trespass in violation of OCGA § 16-7-21 (b) (1), which provides that a person
commits the offense of criminal trespass when he “knowingly and without
authority . . . [e]nters upon the land . . . of another person . . . for an unlawful
purpose.” However, the trial court did not base its ruling on a finding that there
was a reasonable articulable suspicion or probable cause to believe that either
of these alleged crimes had been committed or were in the process of being
committed by Martin. We decline to undertake that analysis in the first
instance.
                                        18
walking along a public road on a summer afternoon, was “in a place

at a time or in a manner not usual for law-abiding individuals.” See,

e.g., Womack v. State, 

, 808 (2) (a) (

)

(2020) (individual’s conduct in walking out of a store did not provide

sufficient facts to support reasonable suspicion of loitering). Thus,

Deputies Copeland and Howell could not form a reasonable

articulable suspicion that Martin was loitering and thus had no

authority to escalate the encounter into a second-tier encounter on

that basis.

     (ii) The question is closer with regard to the deputies’

contention that they had at least reasonable suspicion sufficient to

detain Martin for the crime of walking upon the highway. OCGA §

40-6-96 (c) provides that “[w]here a sidewalk is not provided but a

shoulder is available, any pedestrian standing or striding along and

upon a highway shall stand or stride only on the shoulder, as far as

practicable from the edge of the roadway.” A violation of OCGA § 40-

6-96 (c) is a misdemeanor. See OCGA § 40-6-1 (a).

     Under Terry, if either Deputy Howell or Deputy Copeland had

                                 19
reasonable suspicion to investigate Martin for the offense of walking

upon the highway, then this suspected crime would have formed the

basis for a second-tier encounter. As noted above, in a second-tier

encounter, officers are authorized to briefly detain the suspect, and

the suspect’s physical resistance to that detention is unlawful. See,

e.g., Sims, 

.

     In this case, the video recording from Deputy Howell’s

dashboard camera shows Martin walking on or near the fog-line of

Deepstep Road, which has no sidewalk, and the only evidence that

Martin was walking in the roadway was Deputy Howell’s testimony

about his initial sighting of Martin, which occurred before the video

begins. If Deputy Howell formed a reasonable suspicion that Martin

was committing this offense at all, such suspicion must have formed

based on his earliest observations of Martin before he activated his

dashboard camera and exited his vehicle to confront Martin, and

before Deputy Copeland arrived at the scene. None of the evidence

from that point forward in the encounter supports a conclusion that

Martin was committing the offense of walking upon the highway. In

                                   20
particular, contrary to the trial court’s conclusion, such suspicion

could not have been formed with respect to that offense when Martin

later assumed a “defensive stance” and his demeanor became

“threatening.” Defensive or threatening behavior on the part of

Martin at the point he was confronted by the deputies has nothing

to do with whether he previously committed the offense of walking

in the roadway.

     However, the trial court clearly concluded that the deputies’

initial encounter with Martin was a first-tier encounter. If Martin

assumed a “defensive stance” while the deputies were engaged only

in a first-tier encounter, such behavior would be consistent with his

right to decline any contact from the police at that point in the

encounter. Such behavior by a citizen during a first-tier encounter,

when there is no evidence that the citizen has committed or is

committing a crime, does not provide a law enforcement officer with

a reasonable articulable suspicion necessary to escalate the

encounter to a Terry stop. Cf. Black, 

 (1) (“[A]

citizen’s ability to walk away or otherwise avoid a police officer is

                                 21
the touchstone of a first-tier encounter. Even running from police

during a first-tier encounter is wholly permissible.” (Citation and

punctuation omitted.)).

     Here, the trial court found that Deputy Howell observed

Martin walking “in the roadway” when the deputy arrived at the

scene, yet it concluded that the initial encounter between Deputy

Howell (and Deputy Copeland) and Martin was only a first-tier

encounter. But a finding that Martin was engaged in behavior that

constituted a criminal offense would have, at the moment such

behavior was first observed, given the deputies the suspicion

necessary to commence a second-tier Terry stop of Martin, which

Martin would not have been free to resist or evade. Moreover,

puzzlingly, the trial court concluded that the deputies formed the

reasonable suspicion necessary to effectuate a Terry stop only after

Martin took a “defensive stance” and exhibited a “threatening

demeanor” toward the deputies, actions that have nothing to do with

whether he committed the offense of walking upon the highway. The

trial court’s legal conclusions were thus inconsistent with its factual

                                  22
findings in regard to the circumstances surrounding the deputies’

initial contact with Martin.

     On remand, the trial court must resolve these inconsistencies

and determine whether Deputy Howell’s initial observation of

Martin or some action on Martin’s part aside from his “defensive

stance” or “threatening demeanor” gave the deputies reasonable

articulable suspicion that the crime of walking on the highway had

occurred or was occurring. If so, at that time the encounter

authorized a Terry stop, and the deputies had authority to detain

Martin. See Walker, 

. However, if not, Martin had the

legal right to resist any deprivation of his liberty by the deputies.

See Black, 

 (1). In that situation, Martin’s

resistance to the deputies’ attempts to stop him would not be

“unlawful” under OCGA § 16-3-21 (a). Because the trial court did not

properly consider these issues in its order granting immunity to

Deputies Copeland, Scott, and Howell, its order must be vacated.

     (iii)   In addition, even if Martin’s conduct constituted an

“imminent use of unlawful force” under the framework set forth

                                 23
above, that is not the end of the inquiry before the trial court. The

court must further consider whether the deputies acted in full accord

with OCGA § 16-3-21 such that they should be granted immunity

from prosecution. To qualify for immunity, the deputies were

required by OCGA § 16-3-24.2 to show that they “use[d] threats or

force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or

16-3-24[.]”

      However, our review of the trial court’s immunity order leads

us to conclude that, in making its determination, the trial court

conflated principles found in OCGA § 16-3-20 (2)15 and (4),16 which

are not referenced in OCGA § 16-3-24.2, with self-defense under

OCGA § 16-3-21, which is referenced in OCGA § 16-3-24.2.

Specifically, the trial court relied on State v. 

 and

concluded that the force used by the deputies “in the seizure and




      15 OCGA § 16-3-20 (2) provides that “the defense of justification can be

claimed . . . [w]hen the person’s conduct is in reasonable fulfillment of his
duties as a government officer or employee[.]”
      16 OCGA § 16-3-20 (4) provides that “the defense of justification can be

claimed . . . [w]hen the person’s conduct is reasonable and is performed in the
course of making a lawful arrest[.]”
                                      24
arrest of [Martin]” was proportionate and “reasonably necessary.”

     In Hall, the Court of Appeals analyzed whether an officer’s use

of force was “reasonably necessary” to effectuate a detention and

proportionate to the suspect’s level of resistance in deciding whether

the officer was entitled to immunity from prosecution under OCGA

§ 16-3-24.2. See 

. But whether officers used

reasonable force in effectuating a lawful detention or arrest is a

separate inquiry from whether their use of force was in defense of

themselves or each other under OCGA § 16-3-21 (a) such that they

were entitled to immunity under OCGA § 16-3-24.2. The proper

inquiry in determining whether to grant such immunity is whether

the force used by each of the deputies was based on his reasonable

belief that

     such threat or force is necessary to defend himself . . . or
     a third person against such other’s imminent use of
     unlawful force; however, . . . a person is justified in using
     force which is intended or likely to cause death or great
     bodily harm only if he . . . reasonably believes that such
     force is necessary to prevent death or great bodily injury
     to himself . . . or a third person or to prevent the
     commission of a forcible felony.


                                  25
OCGA § 16-3-21 (a). Thus, regardless of whether the deputies’

encounter with Martin was a first-, second-, or third-tier encounter,

if Martin’s conduct constituted an “imminent use of unlawful force,”

OCGA § 16-3-24.2 requires an analysis of the threat or force needed

by the deputies to reasonably defend against such threat or force

rather than a consideration of proportionality or reasonability of the

deputies’ conduct in the fulfillment of police duties. To the extent

that the decision of the Court of Appeals in Hall conflicts with our

analysis here, it is disapproved. Moreover, the trial court must apply

the proper analysis to this question on remand.

     (iv) Additionally, the immunity statute requires the trial court

to inquire into the deputies’ reasonable beliefs regarding the

severity of the force being used by Martin and the degree of force

needed to defend against it. To the extent that each deputy’s own

use of force was intended or likely to cause death or great bodily

harm, the trial court must consider whether each deputy used such

force based on his own reasonable belief that Martin was

threatening imminent use of unlawful force intended or likely to

                                 26
cause death or great bodily injury to the deputy or a third person or

whether Martin was threatening a forcible felony. See OCGA § 16-

3-21 (a).

     To reach a proper conclusion on this issue, the trial court must

consider the actions taken by Martin as well as the means used by

each deputy to defend himself or his fellow deputies against Martin.

In this case, the most prominent means of force employed against

Martin were the TASERs used by the deputies at various times

during the encounter with Martin. The trial court concluded,

apparently based on expert testimony presented at the hearing on

the immunity motions, that a TASER is “classified as a ‘non-deadly’

device.” But that does not answer the question of whether, within

the meaning of OCGA § 16-3-21 (a), a TASER (or multiple TASERs

used in succession) could ever be used to inflict deadly force or

whether they were intended or likely to do so in this case. As we

have previously held, a TASER can be considered a deadly weapon

in certain circumstances, see Eberhart v. State, 

 (2)

(a) (

) (2019), and whether the use of a TASER (or, for

                                 27
that matter, any other object or device) constitutes a use of force that

is intended or likely to cause death is a case-by-case determination

that must account for how the device is used, how many times and

for what duration, and under what circumstances. Even common

objects that are not normally considered to be weapons (much less

deadly weapons) can be employed in such a manner as to make them

lethal. See, e.g., Ballin v. State, 

 (

)

(2019) (defendant used decorative statue to bludgeon victim to

death); Dasher v. State, 

 (3) (

) (2009)

(evidence was sufficient to show that defendants’ hands and feet

were used as deadly weapons).

     Here, the trial court appears to have simply and improperly

adopted the expert testimony regarding the general classification for

use of a TASER in a generic confrontation to conclude both that a

TASER is, as a general matter, a “non-deadly device” and that the

deputies’ use of the TASERs in this case did not constitute a “use of

force . . . intended or likely to cause death.” While expert testimony

may inform the deadly force determination, the trial court must also

                                  28
consider the particular circumstances of this case, including the

manner and duration of the deputies’ use of the TASERs, the

physical force used in the struggle between the deputies and Martin,

and the fact that Martin died shortly after the repeated deployment

of TASERs against him and the physical struggle.

      (v) Finally, the trial court’s order granted immunity to

Deputies Copeland, Scott, and Howell collectively. This was

improper because the trial court must make an individual

assessment of each defendant deputy’s immunity claim. The

information available to each deputy informs the reasonableness of

his respective belief about the lawfulness of Martin’s threatened

force and the necessity of any actions he took in alleged self-defense

or defense of other deputies. While it appears that the deputies made

observations and interacted with Martin close in time to one

another, the information available to each deputy was not identical,

and at least with respect to Deputy Scott, he appears to have acted

in part on information he received from Deputies Howell and

Copeland. Deputy Howell initially responded to the 911 call; Deputy

                                 29
Copeland responded to Deputy Howell’s request for backup; and

Deputy Scott responded after hearing over the radio that Martin had

been shot with the TASER but was “still fighting.” These differences

in perspective can only be properly accounted for by an individual

assessment of each deputy’s immunity claim by the trial court.

     Accordingly, we vacate the trial court’s judgments and remand

the cases for reconsideration consistent with this opinion.

     Judgments vacated and cases remanded with direction. All the
Justices concur, except Warren, J., not participating.



                    Decided November 2, 2020.

     Murder. Washington Superior Court. Before Judge Flanders,
Senior Judge.
     S. Hayward Altman, District Attorney, Kelly J. Weathers,
Assistant District Attorney, for appellant.
     Fleming & Nelson, Pierce G. Blitch IV, Paul S. P. Williams,
for appellees (case nos. S20A0820 and S20AS20A0821).
     Hawk Law Group, Shawn M. Merzlak, for appellee (case no.
S20A0822).
     Christopher M. Carr, Attorney General, Patricia B. Attaway
Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, amici curiae.




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