State v. PHILLIPS

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: December 9, 2025

S25A1032. THE STATE v. PHILLIPS et al.

MCMILLIAN, Justice.

Following the death of Fernando Rodriguez while he was being

subdued by law enforcement officers, a Henry County grand jury

jointly indicted the officers for malice murder (Count 1), felony

murder predicated on aggravated assault (Count 2), felony murder

predicated on violation of oath by public officer (Count 3),

aggravated assault (Count 4), and each separately with violation of

oath by public officer (Counts 5-9). The State appeals the trial

court’s grant of the officers’ general demurrer to Count 3, which

concluded that violation of oath by public officer is not an inherently

dangerous felony and therefore cannot serve as a predicate felony to

support a charge of felony murder. For the reasons that follow, we
vacate the trial court’s order and remand for the court to consider in

the first instance the asserted grounds for demurrer it has not yet

ruled upon.

1. Based on the representations of the parties and other

record information available at this stage of the proceedings, it

appears that on September 20, 2019, Mason Lewis, Marcus Stroud,

and Gregory Bowlden of the Hampton Police Department responded

to a disturbance call along with Henry County Police Department

officers Quinton Phillips and Robert Butera. When officers arrived

around 10:00 p.m., they encountered 24-year-old Rodriguez, who

was nude in the middle of the road. According to the officers,

Rodriguez then engaged in a prolonged struggle with the officers—

ignoring commands to roll over so he could be handcuffed, swinging

and kicking at the officers, screaming, biting, and generally

resisting arrest and attempting to evade the officers. After

determining that they could not safely transport Rodriguez in a

police car, officers called for an ambulance so they could secure him

to a stretcher for transport and medical evaluation. While waiting

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for the ambulance to arrive, two officers secured Rodriguez’s hands,

other officers secured his legs, and another placed his knee across

the back of Rodriguez’s shoulders, applying pressure to keep him

down and subdued. Though the officers state that they checked to

ensure Rodriguez was breathing shortly before EMS arrived, EMS

found that Rodriguez was no longer breathing sufficiently, and he

later died at the hospital.

The officers were indicted on November 19, 2021, for malice

murder, felony murder predicated on aggravated assault, felony

murder predicated on violation of oath by public officer, aggravated

assault, and violation of oath by public officer. This appeal centers

on Count 3, charging the officers with felony murder predicated on

violation of their oaths by asphyxiating Rodriguez. In full, Count 3

reads:

And the Grand jurors, aforesaid, in the name and on
behalf of the citizens of Georgia, further charge and
accuse Mason Lewis, Marcus Stroud, Quinton Phillips,
Robert Butera and Gregory Bowlden, individually and as
a party concerned in the commission of a crime, with the
offense of FELONY MURDER (O.C.G.A. 16-5-1), in that
the said accused in the State and County aforesaid, on the

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20th day of September, 2019, while in the commission of
the offense of Violation of Oath by Public Officer, a felony,
did cause the death of Fernando Rodriguez, a human
being, by asphyxiating him, contrary to the laws of said
State, the peace, good order, and dignity thereof.

Counts 5-9, charging the officers with violation of their respective

oaths under OCGA § 16-10-1,1 alleged that the officers:

being [ ] public officer[s] … who swore to protect and serve
the citizens … in a courteous and professional manner
and to support the Constitution of the United States and
the State of Georgia, did willfully and intentionally
violate the terms of [their] oath as prescribed by law, by

1 The version of OCGA § 16-10-1 in effect at the time the officers were

indicted provided in full: “Any public officer who willfully and intentionally
violates the terms of his oath as prescribed by law shall, upon conviction
thereof, be punished by imprisonment for not less than one nor more than five
years.” OCGA § 16-10-1 was amended, effective July 1, 2025, and now provides
in full:

(a) Any public officer who willfully and intentionally violates
the terms of his or her oath as prescribed by law shall, upon
conviction thereof, be punished by imprisonment for not less
than one nor more than five years.

(b) Any peace officer, as such term is defined in Code Section
35-8-2, who has sworn the oath or oaths prescribed in Code
Sections 15-16-4 and 45-3-7 shall be subject to prosecution
under this Code section only for violations of such oath or
oaths as prescribed.

(c) No individual shall be subject to prosecution for violation
of his or her oath of office under this Code section, except
where such violation is predicated upon the commission of a
felony or a misdemeanor of a high and aggravated nature.

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asphyxiating Fernando Rodriguez by stretching out
Fernando Rodriguez on the ground in a prone position,
holding him down and applying pressure to his body,
contrary to the laws of said State, the peace, good order,
and dignity thereof.

The officers filed various general and special demurrers to the

indictment. After hearing argument, the trial court entered orders

granting the officers’ general demurrer to Count 3 and later entered

separate orders denying Lewis and Phillips’s special demurrer to the

entire indictment and denying the officers’ special demurrer to the

violation of oath of office counts. 2 Importantly, it appears that the

trial court has not yet ruled on general demurrers to Counts 3 and

5 through 9 on the ground that those Counts do not adequately

allege the crime of violation of oath by public officer as neither the

record in this appeal nor the exhibits provided in connection with

Lewis’s, Phillips’s, and Butera’s applications for interlocutory

2 This Court previously denied Lewis’s, Phillips’s, and Butera’s
applications for interlocutory appeal of those denials. See Lewis v. State,
S25I0483; Phillips v. State, S25I0487; Butera v. State, S25I0489 (all denied
Jan. 8, 2025) (Peterson, P.J., dissenting).
5
appeal contain such an order. 3 The substantive part of the order

granting the general demurrer to Count 3 reads in full:

In support of its ruling, the Court considered that
the law does not provide that OCGA § 16-10-1, Violation
of Oath by a Public Officer, is an “inherently dangerous
felony.” OCGA § 16-10-1, therefore, cannot serve as the
predicate felony to support a charge of Felony Murder
(OCGA § 16-5-1). See Wilson v. State, 315 Ga. 728 (2023).
Further, no caselaw supports using Violation of Oath by
a Public Officer as a predicate felony for Felony Murder.
The case provided by the State, Eubanks v. State, 317 Ga.
563 (2023), is distinguishable insofar as the Violation of
Oath by Public Officer is not dangerous per se as the
examples provided in that case: distribution of narcotics
or possession of a firearm by a convicted felon. Id. at 568–
69.
Count 3 of the indictment, therefore, does not legally
suffice to charge any crime.

3 On December 30, 2021, Lewis filed a special demurrer to the
indictment, later adopted by Phillips, on the ground that it failed to place him
on notice as to what conduct he must defend against. On September 12, 2023,
Lewis filed a general demurrer to Count 3 on the ground that violation of oath
of office is not an inherently dangerous felony and cannot serve as a predicate
for felony murder. Shortly thereafter, Phillips filed, in a single filing, a general
and special demurrer to Count 3 and a general and special demurrer to Count
7 (violation of oath statute), arguing that the allegations of Count 7 were
unclear, did not set forth a crime, and was imperfect in form and substance.
The other officers adopted Phillips’s demurrers for the counts pertaining to
each of them. On September 10, 2024, the trial court granted the officers’
general demurrer to Count 3, which is the subject of this appeal. On November
22, 2024, the trial court denied Lewis and Phillips’s special demurrer to the
entire indictment, holding that the defendants were adequately informed and
that they were each charged individually and as parties to the crimes. On that
same date, the trial court entered a separate “Order Denying Special Demurrer
to Counts 5 Through 9.”
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2. On appeal, the State argues that the trial court erred

because under the circumstances of this case, the alleged violations

of the officers’ oaths created a foreseeable risk of death such that

their violations were inherently dangerous as defined by our case

law and thus the trial court erred in concluding otherwise. We

agree.

“This Court reviews a trial court’s ruling on a general ...

demurrer de novo in order to determine whether the allegations in

the indictment are legally sufficient.” Budhani v. State, 306 Ga. 315,

319 (2019) (cleaned up). “A general demurrer challenges the

sufficiency of the substance of the indictment, and asks whether it

is capable of supporting a conviction.” Id. (cleaned up). “The general

demurrer must be granted if the indictment fails to either (1) ‘recite

the language of the statute that sets out all the elements of the

offense charged’ or (2) ‘allege the facts necessary to establish a

violation of a criminal statute.’” Moss v. State, 2025 WL 2918922

(Case No. S25A0650) at *7 __ Ga. __ (Oct. 15, 2025) (quoting Powell

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v. State, 318 Ga. 875, 880 (2024)); see also State v. Wyatt, 295 Ga.

257, 260 (2014) (“[A]n indictment couched in the language of the

statute alleged to have been violated is not subject to a general

demurrer.”) (citation and quotation marks omitted). We have

observed that:

the most helpful way to assess whether an indictment
withstands a general demurrer is to ask if the accused
could admit each and every fact alleged in the indictment
and still be innocent of any crime. If so, the indictment is
subject to a general demurrer. If, however, the admission
of the facts alleged would lead necessarily to the
conclusion that the accused is guilty of a crime, the
indictment is sufficient to withstand a general demurrer.

Budhani, 306 Ga. at 319. (cleaned up). In reviewing a general

demurrer, “the indictment is read as a whole.” Daniels v. State, 302

Ga. 90, 99 (2017) (cleaned up), overruled on other grounds by State

v. Lane, 308 Ga. 10 (2020).

The felony murder statute does not by its terms limit the type

of felony that can qualify as a predicate. See OCGA § 16-5-1 (“A

person commits the offense of murder when, in the commission of a

felony, he or she causes the death of another human being

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irrespective of malice.”). Instead, the “inherently dangerous felony”

rule is something we adopted in decisional law, reasoning that “the

statute is no more than a codification of the felony murder doctrine

under the common law” and that the statute’s “purpose is the same:

to deter the commission of a dangerous or life-threatening felony.”

Ford v. State, 262 Ga. 602, 603 & n.2. (1992). Relying on Kansas v.

Goodseal, 220 Kan. 487 (1976), we then concluded that because the

“only rational function of the felony murder rule is to furnish an

added deterrent to the perpetration of felonies, which, by their

nature or by the attendant circumstances, create a foreseeable risk

of death,” possession of a firearm by a convicted felony is a “status

felony” that is not “inherently dangerous” and that “under these

circumstances which involve no assault nor any other criminal

conduct, is not a felony upon which a felony murder conviction may

be obtained.” Ford, 262 Ga. at 603.

Some years later, Justice Nahmias criticized Ford’s reasoning

because “[i]t is questionable whether there was a common-law felony

murder doctrine in 1811 [when Georgia first adopted a felony

9
murder statute].” Shivers v. State, 286 Ga. 422, 425 (2010)

(Nahmias, J., concurring specially) (quoting Guyora Binder, The

Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59, 63

(2004) (“Americans did not receive any felony murder rules from

England, for the simple reason that there was no common law felony

murder rule at the time of the American Revolution.”)). Moreover,

in recent years, this Court has made clear that statutory

construction should focus on the original public meaning of the

statutory text, rather than whatever policy goal we imagine the

statute to have been intended to serve. See Fleureme v. City of

Atlanta, 322 Ga. 180, 181 (2025) (“We interpret legal text according

to its original public meaning: the meaning that the public would

have understood that language to carry at the time it was enacted.”);

Patton v. Vanterpool, 302 Ga. 253, 258 & n.9 (2017). However,

putting aside the debate over Ford and its reasoning, no party has

asked us to overrule the “inherently dangerous felony” rule as we

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articulated it in Ford and its progeny. 4

Turning therefore to the “inherently dangerous felony” rule

precedent, we stated clearly and recently that “[a]ny felony can be a

predicate for felony murder so long as it is ‘inherently dangerous to

human life,’” which, in this context, we have explained “mean[s] that

it is ‘dangerous per se’ or ‘by its circumstances create[d] a

foreseeable risk of death.’”5 Wilson, 315 Ga. at 733 (emphasis

supplied) (quoting Davis v. State, 290 Ga. 757, 760 (2012) (“The only

limitation on the type of felony that may serve as an underlying

felony for a felony murder conviction is that the felony must be

inherently dangerous to human life. That is, the felony must be

dangerous per se or by its circumstances create a foreseeable risk of

death.” (citation and punctuation omitted))). We have also

4 We express no opinion whether the inherently dangerous felony rule as

enunciated in Ford and its progeny should be reconsidered.
5 We recognize that the term “inherently dangerous felony” is a

misnomer under our case law because a felony can be considered “inherently
dangerous” for purposes of serving as the predicate to felony murder when it
is not “inherently dangerous” as that term is commonly understood. See
Merriam-Webster, https://www.merriam-webster.com/dictionary/inherent
(defining “inherent” as “belonging to the basic nature of something or someone;
involved in the constitution or essential character of something; intrinsic”) (last
accessed Nov. 10, 2025).
11
explained that “[i]n determining whether a felony meets that

definition, this Court does not consider the elements of the felony in

the abstract, but instead considers the circumstances under which

the felony was committed.” Sanders v. State, 313 Ga. 191, 198 (2022)

(citation and punctuation omitted). More recently still, we

explained:

Felonies may be considered inherently dangerous if
they either are “dangerous per se,” or “by their
circumstances create a foreseeable risk of death.” Id.
(citation and punctuation omitted); see Davis, 290 Ga. at
760. Some felonies, like aggravated assault, create a
foreseeable risk of death under almost any circumstances.
See Sanders, 313 Ga. at 198–99; see also, e.g., Lofton v.
State, 309 Ga. 349, 353 (2020) (armed robbery); State v.
Tiraboschi, 269 Ga. 812, 813 (1998) (felony fleeing).
Others may or may not create a foreseeable risk of death,
depending on how they were committed. See Ford, 262
Ga. at 603 (explaining that possession of a firearm by a
previously convicted felon is not dangerous per se, but
that “circumstances may well exist under which such a
felony may be considered dangerous”).

Eubanks, 317 Ga. at 568–69 (cleaned up).

No party contends that violation of oath by public officer is a

felony that is dangerous per se or that it creates a foreseeable risk

of death under any circumstances. The question is whether

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violation of oath by public officer may ever be considered a felony

that creates a reasonably foreseeable risk of death depending on the

circumstances.

Although this Court has not addressed whether the specific

felony offense of violation of oath by public officer may serve as the

predicate for a charge of felony murder, we have considered whether

other felonies that we have said are neither dangerous per se, nor

create a foreseeable risk of death under “almost any circumstances,”

nonetheless may create a foreseeable risk of death under the specific

circumstances presented in a case.

One of the most common fact patterns in which we have

considered whether a felony is inherently dangerous involves the

offense of possession of a firearm by a convicted felon. Although we

have said in Ford that possession of a firearm by a convicted felon is

a “status felony” that is not “inherently dangerous,” Ford, 262 Ga.

at 602, we nonetheless have concluded that the offense may be

considered inherently dangerous depending on the circumstances.

Some of those situations involved manipulating a loaded gun near

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other people and pointing it at them. See Moon v. State, 311 Ga. 421,

425 (2021) (holding, where appellant “manipulated a loaded

handgun in close proximity to other people in the same room,

including a child; pointed the gun at [the victim’s] head at some

point before she was shot; continued manipulating the gun after

repeatedly being told to stop; and admittedly engaged in this

conduct after smoking marijuana,” that “[w]e have no trouble

concluding that, based on the facts of this case, [appellant’s] conduct

in possessing the gun while being a convicted felon was inherently

dangerous”); Metts v. State, 270 Ga. 481, 482–83 (1999) (holding that

under Ford, the “status felony” of being a convicted felon in

possession of a firearm, although not always dangerous, was

sufficient to support appellant’s felony murder conviction under the

circumstances where appellant “pointed a loaded, cocked gun in the

direction of a window, on the other side of which he knew there was

a human being”). In another case, we have said that firearm

possession while drinking and shooting at an object that was not

positively identified can be considered inherently dangerous under

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the circumstances. See Hines v. State, 276 Ga. 491, 493 (2003)

(rejecting appellant’s claim that possession of a firearm by a

convicted felon, which was being used for turkey hunting, could not

support felony murder because “[d]epending on the facts, possession

of a firearm by a convicted felon can be an inherently dangerous

felony,” and was under the circumstances, where appellant was

drinking while hunting and took an unsafe shot at a target he had

not positively identified as a turkey). And in Ford, we explained that

if the firearm possession involved an assault or other criminal

conduct, that offense under the circumstances could create a

foreseeable risk of death. Ford, 262 Ga. at 602–03 (holding that

possession of a firearm by a convicted felon was not “inherently

dangerous” when the defendant was attempting to unload a pistol,

but in that process the weapon fired through the floor of the

apartment, where it struck the victim, of whom the defendant was

unaware). 6

6 Other than Ford, we are not aware of any other case where this Court

has held that the predicate felony to a felony murder charge did not meet the
requirements of the “inherently dangerous felony” rule.
15
These cases show that it was not the defendants’ status as

convicted felons—or even as convicted felons in possession of

firearms—that was the determining factor in whether the offense of

felon in possession of a firearm could serve as the predicate felony

for a charge of felony murder. Instead, consistent with how we have

articulated the “inherently dangerous felony” rule, the determining

factor was how the defendants committed that predicate felony and

whether there was a foreseeable risk of death under those

circumstances. See also Eubanks, 317 Ga. at 574 (“So too with drug-

possession felonies. In the abstract, simple possession of drugs may

not be per se dangerous to human life, but our precedent is clear

that a person can possess an illegal substance under circumstances

that create a foreseeable risk of death.”); Turner v. State, 281 Ga.

487, 488–89 (2007) (holding that felony possession of a stolen

automobile offense supported conviction for felony murder based on

an automobile collision while fleeing from police a few days after the

vehicle was stolen because it created a foreseeable risk of death

under the circumstances of that case).

16
According to our case law, therefore, a felony that is not

inherently dangerous per se—which includes the felony of violation

of oath by public officer—may be considered inherently dangerous,

depending on whether the circumstances of its commission created

a foreseeable risk of death. Here, the indictment is “couched in the

language of the statute alleged to have been violated.” Wyatt, 295

Ga. at 260. Count 3 of the indictment alleges that the officers

committed “the offense of FELONY MURDER (O.C.G.A. 16-5-1), in

that” they “while in the commission of the offense of Violation of

Oath by Public Officer, a felony, did cause the death of Fernando

Rodriguez, a human being, by asphyxiating him, contrary to the

laws of said State, the peace, good order, and dignity thereof.”

Counts 5 through 9, in turn, lay out specific factual allegations

supporting that charge, alleging that the officers violated their oaths

“to protect and serve the citizens … in a courteous and professional

manner and to support the Constitution of the United States and

the State of Georgia,” and that they did so “by asphyxiating []

Rodriguez by stretching [him] out [] on the ground in a prone

17
position, holding him down and applying pressure to his body,

contrary to the laws of said State, the peace, good order, and dignity

thereof.”7 Nothing in these factual allegations preclude a jury from

concluding that the circumstances alleged created a reasonably

foreseeable risk of death. The trial court therefore erred in granting

the officers’ general demurrer on Count 3 on the ground that the

alleged violations of oath by public officer do not constitute

inherently dangerous felonies.8

7 In reviewing a general demurrer to an indictment, we consider whether

“the accused could admit each and every fact alleged in the indictment and still
be innocent of any crime.” Budhani, 306 Ga. at 319 (emphasis supplied). We
also note that although the State is not generally required “to allege any
additional facts in the indictment beyond the statutory elements” to withstand
a general demurrer, that does not prevent this Court from considering
additional factual allegations contained within “the four corners of the
indictment” in assessing a general demurrer. Powell, 318 Ga. at 879, 882
(“read[ing] the indictment as a whole” and concluding that “where the details
provided in each count actually negate the elements of the crimes charged, the
indictment is not sufficient to withstand a general demurrer because [the
defendants] can admit each and every fact alleged in the indictment and still
be innocent of the crimes alleged by the State”) (citations and quotation marks
omitted). Thus, in considering whether the trial court properly granted the
officers’ general demurrer to Count 3, we also may consider the factual
allegations supporting the separate counts of violation of oath by public officer
in Counts 5 through 9.
8 The officers, as Appellees, urge us to reconsider the trial court’s denials

of their other motions for general and special demurrers on Count 3 and Counts
5 through 9, but as noted above, this Court already denied applications for

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Judgment vacated and case remanded. All the Justices concur.

interlocutory appeal on those issues. Because these rulings have not been
enumerated as error in this appeal, we decline to address these arguments,
and we take no position on their merits in this opinion. Importantly, however,
it does not appear that the trial court has yet ruled on general demurrers that
challenge Counts 3 and 5 through 9 on the ground that the allegations therein
fail to allege adequately the crime of violation of oath by public officer. We
express no opinion as to the merits of Appellees’ arguments on that point, given
the lack of any ruling below for us to review, and remand for the trial court to
consider these demurrers and arguments in the first instance.
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PETERSON, Chief Justice, concurring.

I concur in the majority’s holding that the trial court erred in

granting the officers’ general demurrer to Count 3. But, as the

majority points out, the officers also brought general demurrers to

Counts 5 through 9, which charge the officers with violating their

respective oaths under OCGA § 16-10-1. The record before us

indicates that the trial court has yet to rule on those general

demurrers. I write separately to point out that those demurrers may

warrant granting.

The language in Counts 5 through 9 of the indictment, and in

the officers’ oaths, which requires officers “to protect and serve the

citizens … in a courteous and professional manner,” may prove

problematic, as it is not clear that language is “prescribed by law”

under OCGA § 16-10-1.

Counts 5 through 9 alleged that the officers:

being [ ] public officer[s] with the [Hampton or Henry
County] Police Department … who swore to protect and
serve the citizens … in a courteous and professional
manner and to support the Constitution of the United
States and the State of Georgia, did willfully and

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intentionally violate the terms of [their] oath[s] as
prescribed by law, by asphyxiating Fernando Rodriguez
by stretching out Fernando Rodriguez on the ground in a
prone position, while he was handcuffed and shackled,
holding him down and applying pressure to his body,
contrary to the laws of said State, the peace, good order,
and dignity thereof.

Relevant to the charges here, OCGA § 16-10-1 makes it a felony

for a public officer to “willfully and intentionally violate[] the terms

of his oath as prescribed by law[.]” OCGA § 16-10-1 (emphasis

added).9 The plain language of the statute thus provides that for a

violation of the terms of an oath to support criminal liability under

the statute, those terms must be prescribed by law. This conclusion

was reflected by the Court of Appeals in Bradley v. State, 292 Ga.

App. 737 (2008). There, the Court of Appeals concluded that “[t]o

prove a violation of this Code section, the State must present

evidence that the defendant violated the terms of the oath actually

administered and that those terms were from an oath ‘prescribed by

law,’ that is, one that the ‘legislature’ required of a public officer

9 As the majority notes, this part of OCGA § 16-10-1 was in effect at the

time the officers were indicted, but the statute was amended in 2025 to add
subparts.
21
‘before entering the duties of [his or her] office.’” Id. at 740 (quoting

Jowers v. State, 225 Ga. App. 809, 810–12 (1997)).

The State alleges that the officers violated two provisions of

their oaths: an oath to protect and to serve the people of the City of

Hampton or Henry County “in a courteous and professional manner”

and an oath to “support the Constitution of the United States and of

the State of Georgia.”

The language alleged in the indictment that the officers failed

“to protect and serve the citizens … in a courteous and professional

manner” bears no resemblance to any oath prescribed by any statute

of which I am aware, and thus seems likely not to be “prescribed by

law.” In particular, the officers argue that OCGA § 45-3-1, which

does not include the “courteous and professional manner” language,

prescribes the only terms of a peace officer’s oath that could be used

to support criminal liability in this case.10 The State has not

10 To the extent the officers argue that they committed the alleged
actions with justification, the Court of Appeals has recognized another hurdle
the State may have in convicting police officers based on a theory that the
officers violated their oaths of office, to the extent that those oaths conflict with
the self-defense statute. See Olsen v. State, 371 Ga. App. 12, 15–18 (2024).
22
bothered to respond to that argument. 11

If that language in the officers’ oaths is not prescribed by law,

it cannot form the basis for a violation of OCGA § 16-10-1. See

Pierson v. State, 348 Ga. App. 765, 774–76 (2019) (holding that there

was “sufficient evidence to show that the terms of the oath taken by

the [defendant] were ‘prescribed by law,’ as required by OCGA § 16-

10-1” where the oath was “almost identical to the oath that sheriffs

are required to take, pursuant to OCGA § 15-16-4”); Bradley, 292

Ga. App. at 740–41 (upholding conviction where the oath taken by

defendant, a correctional officer, was prescribed by law where the

oath almost exactly tracked the language of the oath for correctional

officers set forth in OCGA § 42-5-31); Jowers, 225 Ga. App. at 812

(reversing defendant’s conviction for violation of oath by a public

officer and noting that the evidence of record reflects that defendant

was sworn to uphold the laws of the state, which is a not a term

“expressly ‘prescribed by law’ for the oath which a deputy sheriff

11 The State’s opening brief contains only six pages of argument, and the

State filed no reply brief at all.
23
must take”).12

I am authorized to state that Justice LaGrua joins in this

concurrence.

12 There remains one other provision in Counts 5 through 9 and in the

officers’ oaths that likely is statutorily prescribed by law. The indictment
alleges that the officers violated their oaths “to support the Constitution of the
United States and the State of Georgia.” This provision is present in OCGA §
45-3-1(6) — which requires officers to “[s]wear that he or she will support the
Constitution of the United States and of this state.” But the State makes no
argument in this appeal about that language; in fact, the State’s brief does not
even mention it. Moreover, the conduct alleged would constitute a violation of
the officers’ oath of office (at least under the United States Constitution) only
if the officers’ conduct here was unreasonable under the circumstances, such
as by using excessive force. See Graham v. Connor, 490 US 386, 394–97 (1989).
There is no allegation in the indictment that the force was excessive under the
circumstances.
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