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head, causing him to collapse onto the steering wheel. Fearing he was going to be struck again, Jackson retrieved his gun from under the front seat, stuck it out the door of the Jeep Cherokee, and fired, causing Sang Duk Lee to disappear from Jackson's sight. Jackson and Coleman then drove away from the gas station. Jackson's testimony that he remained in the vehicle and fired his weapon through the vehicle's open door or window at someone who had struck him while he was in the vehicle and who he believed was preparing to strike him again was the ‘slight evidence’ necessary to authorize the trial court giving a jury charge on the defense of habitation upon request.” State v. Burks, 285 Ga. 781, 684 S.E.2d 269 (September 28, 2009). In defendant’s murder prosecution, trial court erred in granting defendant’s motion to quash based on immunity in defense of habitation under OCGA § 16-3-24.2. “[T]he defense of immunity under OCGA § 16-3-24.2 does not apply if the person invoking the immunity statute is carrying a weapon unlawfully.” Defendant here was a convicted felon, forbidden to possess the gun with which he shot the victim. Citing with approval Millen v. State, 267 Ga.App. 879(2)(b) (600 S.E.2d 604) (2004) (similar holding). “Of course, Burks is not precluded from raising the affirmative defense of justification in further proceedings below.” Fair v. State, 284 Ga. 165, 664 S.E.2d 227 (July 14, 2008). Defendants are entitled to a pre-trial ruling on whether they can avail themselves of a defense of habitation defense under OCGA § 16-3-24.2. Citing with approval Boggs (May 2, 2003), below: “‘[A]s the plain meaning of [immune from prosecution] and the other language in the statute, the statute must be construed to bar criminal proceedings against persons who use force under the circumstances set forth in OCGA § 16-3-23 or § 16-3-24. Further, as the statute provides that such person ‘ shall be immune from criminal prosecution,’ the decision as to whether a person is immune under OCGA § 16-3-24.2 must be determined by the trial court [as a matter of law] before the trial of that person commences.’ (Emphasis supplied.) Boggs, supra at 106, 581 S.E.2d 722.” But see Bunn v. State , 284 Ga. 410, 667 S.E.2d 605 (October 6, 2008) (immunity may be raised both pre-trial and at trial). Brimidge v. State, 287 Ga.App. 23, 651 S.E.2d 344 (July 10, 2007). Physical precedent only. Trial court properly refused to charge jury on defense of habitation, which requires evidence of entry or attempted entry into defendant’s residence “in a violent and tumultuous manner.” “Brimidge … did not allege that the victim was attempting to enter a habitation. See also Stobbart v. State, 272 Ga. 608, 611(4) (533 S.E.2d 379) (2000) (holding that OCGA § 16-3-23 “is clearly concerned with the use of deadly force to counter entry, or attempted entry, into the home’). Brimidge testified that after he and the victim ascended to Brimidge’s room, Brimidge left his door open, and the victim came in. In denying the requested charge of defense of habitation, the trial court properly noted the lack of evidence of a struggle with the victim trying to get into Brimidge’s residence.” McKee v. State, 280 Ga. 755, 632 S.E.2d 636 (July 13, 2006). “As the argument between defendant and Tilley escalated, defendant challenged Tilley to arm himself, adding that he was already carrying a pistol. Tilley accepted the challenge and retrieved his guns. As Tilley approached the porch, defendant waited with his gun at the ready; then he opened fire. Thus, defendant was an aggressor who was engaged in mutual combat, and it cannot be said that he was justified in using force in defense of habitation . See Farley v. State, 265 Ga. 622, 623, 458 S.E.2d 643 (1995) (a person is not justified in using force in self-defense if he is the initial aggressor or engaged in mutual combat, unless he withdraws from the encounter and notifies the other participant that he is doing so). It follows that the trial court did not err in refusing defendant's request to charge on defense of habitation.” Floyd v. State, 277 Ga.App. 166, 626 S.E.2d 149 (January 9, 2006). Defense of property under OCGA § 16-3-24(a) “provides no justification for simple battery against a spouse,” citing Barron v. State , 219 Ga.App. 481, 465 S.E.2d 529 (1995). Robison v. State, 277 Ga.App. 133, 625 S.E.2d 533 (January 4, 2006). “Robison … argues that OCGA § 16-3-23, which addresses the ‘[u]se of force in defense of habitation,’ forbade the victim from using deadly force because he is the victim's brother. But subsection (2) of that Code section, which excludes family members from its scope, applies only to defense against one ‘who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence.’ OCGA § 16-3-23(1), on the other hand, addresses defense against one who enters a residence ‘in a violent and tumultuous manner’ when the victim ‘reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence.’ Id. But subsection (1) of the Code does not exclude ‘a member of the family or household’ as does subsection (2), which is inapplicable here. The evidence was sufficient.”