The Supreme Court of Georgia upheld the ruling of Fulton Superior Court Judge Henry Newkirk (pictured left) that a City of Atlanta  Police Officer was immune from prosecution for the killing of 19 year-old Corey Ward.

     On July 14, 2002, Raymond Bunn, a plain clothes City of Atlanta Police Officer, along with a partner, were patrolling an Atlanta neighborhood in an unmarked vehicle.  After spotting an apparent vehicle break-in, the officers moved their vehicle to block the exit from the parking lot where the break-in was allegedly occurring.  The alleged burglar got into a van which began to move toward the officers.  The officers shouted for the van to stop.  When the van continued to move toward the officers, Bunn fired shots into the driver’s side window killing Ward.              The evidence was conflicting as to where Bunn was standing in relation to the vehicle; how fast the vehicle was moving and whether Ward and his passengers knew Bunn and his partner were police officers.  Bunn’s incident report alleged that his knee was pinned by Ward’s vehicle.  There was no physical or medical evidence of an injury to Bunn’s knee.  Bunn’s partner did not see Bunn being hit by Ward’s vehicle.  However, there was evidence that Bunn had previously used excessive force while on duty. Bunn was indicted in Fulton County on charges of malice murder, felony murder and aggravated assault.  Bunn filed a motion for immunity from prosecution pursuant to O.C.G.A. § 16-3-24.2:A person who uses threats or force in [self-defense] shall be immune from criminal prosecution therefore unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person.   A trial court must rule on a motion for immunity prior to trial.  Fair v. State, 284 Ga. 165 (2008).      The first judge to hear the case denied the motion and Bunn appealed.  The Supreme Court held that the judge had failed to use the proper standard and sent the case back to the judge.  The Supreme Court held that a defendant need only prove that he is entitled to immunity by a preponderance of the evidence.   "Preponderance of evidence" means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” When the case was sent back to the trial court it was reassigned to a Judge Henry Newkirk, a former police officer. Judge Newkirk granted the motion for immunity thereby dismissing the case against Bunn.        Fulton County District Attorney Paul L. Howard, Jr. appealed Judge Newkirk’s ruling to the Supreme Court.  Howard argued that Judge Newkirk was not authorized to reject the first judge’s denial of immunity because that judge actually heard the testimony and found factual issues that needed to be determined by a jury.  The Supreme Court upheld  Judge Newkirk’s determination that Bunn was immune pointing out that although the evidence was conflicting, the ruling was supported by a preponderance of the evidence.       Justice Robert Benham wrote a dissenting opinion finding the “conflicting evidence and conflicting outcomes troubling.”  Justice Benham pointed out that the decision deprived Corey Ward’s family their day in court and the citizens of Fulton County a public trial of the controversy.  Justice Benham cited the failure to consider the United States Supreme Court case Tennessee v. Garner, 471 U.S. 1 (1985) that held:The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.Justice Benham did not believe there was a showing that Bunn acted as a reasonable police officer.  He would have let the case be decided by a jury.