dissenting.
On the night of July 14, 2002, Raymond Bunn, a plain clothes police officer who was patrolling an Atlanta neighborhood in an unmarked vehicle, fired fatal shots into the driver-side window of a Chevy Tahoe twice wounding its driver, 19-year-old Corey Ward, an African-American male, on the left side of his head. Those facts are certain. Otherwise, the evidence is conflicting as to where Bunn was standing in relation to the Chevy Tahoe Ward was driving;6 how fast Ward’s vehicle was moving;7 and whether Ward and his passengers knew Bunn and his partner were police officers.8 There are also discrepancies with Bunn’s incident report in which he alleges his knee was “pinned” by Ward’s vehicle. Specifically, there is no physical or medical evidence of any injury to Bunn’s knee, and Bunn’s partner did not actually see Bunn being hit by Ward’s vehicle. There is also troubling evidence that Bunn previously used *24excessive force for which he was found civilly liable for damages stemming from an incident in which he punched a woman in the face during a routine traffic stop.
The first judge, who listened to the live testimony and presentation of evidence, determined that Officer Bunn was not entitled to immunity based on the evidence presented. On remand, the second judge, who was not privy to the live presentation of evidence and who was given direction by this Court to apply a preponderance of the evidence standard, found that Officer Bunn was justified in using lethal force against Ward and, therefore, immune from prosecution for Ward’s death under OCGA § 16-3-24.2. I find the conflicting evidence and conflicting outcomes troubling in this pre-trial matter and cannot in good faith join the majority’s decision to affirm this latest ruling by the trial court. Not only does the affirmation of the trial court’s decision deprive Corey Ward’s family of their day in court and the citizens of a public trial of this controversy, but this decision will also make it more difficult to prosecute law enforcement officers who are alleged to have used excessive and/or deadly force in the apprehension of suspected criminals.
OCGA § 16-3-24.2 is seemingly applicable to any ordinary citizen walking the streets who may need to defend himself or herself in certain situations. Police officers, however, are not the typical “objective reasonable persons,” as suggested by the majority’s reference to Lewis v. State, 270 Ga. 891, 893 (2) (515 SE2d 382) (1999). Police officers receive special knowledge and training (i.e., training on weaponry, tactics, and the use of deadly force) to which the everyday person is likely not exposed. In addition, police officers are not treated as ordinary suspects when they use deadly force against suspected criminals. Here, the investigating officer admitted that Bunn was not treated as any other homicide suspect, but as a police officer regarding a police-involved shooting.9 The United States Supreme Court has ruled that the use of deadly force by the police during the apprehension of a suspect must be reviewed pursuant to reasonableness standards under the Fourth Amendment. Tennessee v. Garner, 471 U. S. 1, 7 (105 SC 1694, 85 LE2d 1) (1985).
*25The 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.
Id. at 11. See also Graham v. Connor, 490 U. S. 386, 394-395 (109 SC 1865, 104 LE2d 443) (1989). Thus, the overarching question at issue is what would a reasonable police officer do in a situation where, as here, the only suspected crime in progress is the attempted theft of a car and/or the property therein (a nonviolent felony). See Robinson v. State, 221 Ga. App. 865, 866 (473 SE2d 519) (1996) (the police are not ordinary citizens when acting in the line of duty). See also Geoffrey P. Alpert, How Reasonable is the Reasonable Man?: Police & Excessive Force, 85 Crim. L. & Criminology 481, 486-487 (1994) (noting that model policy from International Association of Chiefs of Folice would ask what a reasonable police officer would do). It does not appear the trial court at any point considered or applied the dictates of Tennessee v. Garner.
Given the amount of conflicting evidence in this case concerning whether deadly force was necessary, the conflicting rulings by two trial court judges evaluating the same evidence, Officer Bunn’s failure to testify when he had the burden of proof as to why he was justified in using deadly force, and the failure to consider United States Supreme Court precedent, I do not believe there has been a showing that the officer acted as a reasonable police officer under the Fourth Amendment or was justified in his actions by a preponderance of the evidence or any other evidentiary standard. Moreover, allowing the outcome of this case to stand necessarily ensures that alleged victims of excessive or deadly force by law enforcement will be unable to sustain criminal recourse in Georgia courts.10 Accord*26ingly, I would reverse and allow the criminal case to proceed and the matter be tried before a jury.
Decided September 20, 2010 Reconsideration denied October 18, 2010. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Elizabeth A. Baker, Assistant District Attorneys, Thurbert E. Baker, Attorney General, for appellant. Manubir S. Arora, Ashleigh B. Merchant, for appellee.There was disagreement among the experts who testified as to where Officer Bunn was standing in relation to the Tahoe based on the physical evidence. It was disputed as to whether the officer was in front or to the front-side of the Tahoe when the first shot was fired and whether he was flush with the center of the driver-side window when the second shot was fired.
There were differing estimates on the speed of the vehicle. Experts testified that it was either traveling 10 to 26 miles per hour, 10 to 15 miles per hour, or 5 to 12 miles per hour.
A witness testified that Bunn’s partner was wearing a flannel shirt, jeans, and a police badge hanging from his neck; however Bunn’s partner testified that he was wearing green cargo pants, a green shirt, and a badge around his neck. Bunn’s partner testified that Bunn was wearing jeans, a black shirt with a silver embroidered shield on the front and with the words “Atlanta Police” on the back, and a badge around his neck. Eyewitnesses who were in the Tahoe gave conflicting statements as to whether Bunn and his partner identified themselves as police officers and whether the occupants of the Tahoe saw the badges.
The investigating officer testified as follows:
Q: When you got the statement from the officer, did you get the statement from the officer as police officer Raymond Bunn, or did you get the statement from the officer as criminal homicide suspect, Raymond Bunn?
A: Officer Bunn.
Q: So you took his statement as a police officer?
A: Yes.
Q: He was not a suspect in a homicide; is that correct?
A: Correct.
The police... have not been treated equally by state criminal law. Police are rarely prosecuted, in part because fellow officers are reluctant to vigorously pursue investigations of their comrades’ misconduct, often following a code of silence that frustrates factual development. Prosecutors also find themselves in a difficult position when faced with an accusation of police misconduct. They work closely with police, and their ability to succeed in their everyday tasks of prosecuting routine crimes depends on the work and cooperation of police officers. When they are asked *26to prosecute one of these allies, prosecutors face “an impossible conflict of interest between their desire to maintain working relationships and their duty to investigate and prosecute police brutality.”
John Jacobi, Prosecuting Police Misconduct, 2000 Wisconsin Law Review 789, 803-804 (2000).