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Self-defense is a complete defense to all assault charges, including murder, if argued effectively at trial. Contact our Charleston murder defense lawyers to learn if self-defense law applies in your case.
To establish self-defense, four elements must be present:
- (1) the defendant must be without fault in bringing on the difficulty;
- (2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury;
- (3) if his defense is based upon his belief of imminent danger, a reasonably prudent man of ordinary firmness and courage would have entertained the same belief, or if the defendant was actually in imminent danger, the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike the fatal blow in order to save himself from serious bodily harm or losing his own life; and
- (4) the defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in the particular instance.
State v. Hendrix, 270 S.C. 653, 657-658, 244 S.E.2d 503, 505-506 (1978); see also State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984).
An individual has the right to act on appearances. State v. Starnes, 340 S.C. 312, 531 S.E.2d 907 (2000); see also State v. Jackson, 277 S.C. 271, 87 S.E.2d 681 (1955). One may act on appearances. He may be mistaken. The law does not hold him to a refined assessment of the danger, provided, of course, he acted as the person of ordinary coolness and courage would have acted or should have acted in meeting the appearance of danger. He doesn’t have to wait until his assailant gets the drop on him, he has a right to act under the law of self-preservation and prevent his assailant getting the drop on him; if it is apparent, or reasonably apparent his assailant is taking steps to get the drop on him, he must take steps first to prevent such assailant from getting the drop on him. State v. Rash, 182 S.C. 42, 50 (1936), Starnes at 322.
Furthermore, an individual has the right to judge the conduct of his assailant more harshly if he has had prior difficulties with his assailant or is aware of their reputation for violence. State v. Day, 341 S.C. 410, 535 S.E. 2d 431 (2000).
Additionally, “words accompanied by hostile acts, may, depending on the circumstances, establish a plea of self-defense.” State v. Harvey, 220 S.C. 506, 68 S.E.2d 409 (1951). Furthermore, “when a person is justified in firing the first shot, he is justified in continuing to shoot until it is apparent that the danger to his life and body has ceased.” Hendrix, 270 S.C. at 661, 244 S.E.2d at 507.
In South Carolina, we also have the common law principle of Defense of Habitation: The seminal case is State v. Bradley, 126 S.C. 528 (1923)A man who attempts to force himself into another’s dwelling, or who, being in the dwelling by invitation or license refuses to leave when the owner makes that demand, is a trespasser, and the law permits the owner to use as much force, even to the taking of his life, as may be reasonably necessary to prevent the obtrusion or to accomplish the expulsion.
Stand Your Ground Law and the Castle Doctrine
As our Supreme Court noted in State v. Jones, 416 S.C. 283, 296, 786 S.E.2d 132, 139 (2016), “the Legislature clearly enunciated its intent and reasons for promulgating the Act in section 16-11-420.” The complete text of S.C. Code Ann. § 16-11-420 provides:
(A) It is the intent of the General Assembly to codify the common law Castle Doctrine which recognizes that a person’s home is his castle and to extend the doctrine to include an occupied vehicle and the person’s place of business.
(B) The General Assembly finds that it is proper for law-abiding citizens to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.
(C) The General Assembly finds that Section 20, Article I of the South Carolina Constitution guarantees the right of the people to bear arms, and this right shall not be infringed.
(D) The General Assembly finds that persons residing in or visiting this State have a right to expect to remain unmolested and safe within their homes, businesses, and vehicles.
(E) The General Assembly finds that no person or victim of crime should be required to surrender his personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack.
In order to accomplish the objectives set forth in section 16-11-420, the Legislature enacted section 16-11-440. Jones, 416 S.C. at 296, 786 S.E.2d at 139. This section “identifies the circumstances for which a person may invoke the protection of the Act.” Id.
Specifically, subsection (A) of section 16-11-440 provides:
A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:
- (1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and
- (2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.
Subsection (c) of section 16-11-440 provides:
A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16-1-60.(emphasis added).
The General Assembly created a statute providing for immunity from prosecution to “[a] person who uses deadly force as permitted by the provisions of this article or another applicable provision of law.” S.C. Code Ann. § 16-11-450(A). The phrase “another applicable provision of law” found within the Act “includes the common law of self-defense.” State v. Glenn, 429 S.C. 108, 117, 838 S.E.2d 491, 496 (2019). “A claim of immunity under the Act requires a pretrial determination using a preponderance of the evidence standard.” State v. Curry, 406 S.C. 364, 370, 752 S.E.2d 263, 266 (2013).
Thus, a person who proves by a preponderance of the evidence that he satisfied (1) the elements of common law self-defense or (2) the elements of the Act is entitled to immunity from prosecution.
The attorneys at Shealey Law Firm have most likely tried more immunity hearings than any other law firm in the State of South Carolina. When done properly, they can be used to establish that our client should be immune from prosecution and the charges can be dismissed and expunged by the court.
It is our belief based on the evolution of immunity laws as interpreted by the case law that immunity protections are codified self defense, but for the duty to retreat. Let us help evaluate your case to see if your charge is eligible for such a powerful defense.
Contact our defense attorneys in Charleston to review your case.