From http://www.legalinsurrection.com by Andrew Branca, October 10, 2013
A father in South Carolina who fired his handgun in self-defense–and in the process killing an apparent innocent bystander–has successfully argued that he is not subject to criminal or civil liability under the state’s self-defense immunity law.
South Carolina’s self-defense immunity statute–§16-11-450. Immunity from criminal prosecution and civil actions; law enforcement officer exception; costs.–is essentially identical to Florida’s self-defense immunity statute currently under legislative review (as covered by Legal Insurrection here)–§776.032. Immunity from criminal prosecution and civil action for justifiable use of force.
The Issue Is Self-Defense Immunity, Not “Stand Your Ground”
As is frequently the case in Florida, news coverage of this case invariably confuses the state’s self-defense immunity statute with other legal provisions involving issues of retreat, incorrectly referring to such immunity hearings as “Stand Your Ground” hearings. In fact, as was the case with the George Zimmerman trial, this South Carolina case had nothing whatever to do with Stand Your Ground, which is covered by completely different South Carolina statutes (§16-11-420. Intent and findings of General Assembly and §16-11-440. Presumption of reasonable fear of imminent peril when using deadly force against another unlawfully entering residence, occupied vehicle or place of business.)
The father, Shannon Scott, argued that his conduct was covered under South Carolina’s self-defense immunity law in a pre-trial hearing before Judge Maite Murphy, and the Judge announced his agreement in a 12-page ruling filed yesterday.
The ruling was covered by the South Carolina newspaper The State, which cast the story in terms of whether the immunity provision should apply when the person acting in self-defense ends up shooting someone who is a bystander to the attack, rather than an actual attacker.
In fact, the status of the person actually shot has little importance in determining immunity under the statute, nor should it. It is a tautology that under the self-defense laws in every state the lawful use of force in self-defense is not a crime, whatever the outcome of that use of force might be.
The only variable introduced by South Carolina’s immunity statute is whether the user of force will be required to have their criminal liability determined solely by means of a lengthy criminal trial and jury verdict or whether (under the statute) the determination of criminal liability can be made in a pre-trial hearing.
Q: Did Father’s Use of Force Align With Five Elements of Law of Self -Defense?
The issue for Judge Murphy, then, is not whether the immunity statute applies if the person against whom the force is used turns out later to have not been an attacker, but simply whether the conduct of the person acting in self-defense is consistent with the law of self-defense.
More specifically, the court was required to ask the following five questions:
(1) Was Mr. Scott an innocent (non-aggressor) in the conflict?
The evidence supported Mr. Scott’s claim that aggressors came to his home, not he to them, making him the innocent party for purposes self-defense.
(2) Was Mr. Scott facing an imminent threat of death or grave bodily harm?
The evidence supported Mr. Scott’s claim that the aggressors had just fired shots at him.
(3) Was Mr. Scott’s use of force proportional to the threat?
The evidence of shots being fired at Mr. Scott–clearly deadly force–warranted the use of a deadly force response in self-defense.
(4) Did Mr. Scott violate any duty to retreat before using force in self-defense?
Standing in his own yard Mr. Scott was privileged under South Carolina’s “Castle Doctrine” to be exempt from any duty to retreat that might otherwise have existed
(5) Was Mr. Scott’s conduct both subjectively and objectively reasonable?
Mr. Scott took the witness stand in the pre-trial hearing to testify to his subjective reasonableness, in the course of which he necessarily subjected himself to cross-examination by the state.
There was also considerable evidence concerning the circumstances and conditions of the night’s events that would have guided a determination of objective reasonableness–including that the daughter was followed home by a car full of known thugs, that the attack took place at 1:30AM, that law enforcement was not immediately available, etc.
A: Father’s Use of Force WAS Lawful Self-Defense; Ergo Immunity Attaches
The Judge’s finding of immunity clearly reflects that he found this evidence supported, by at least a preponderance of the evidence, the reasonableness of Mr. Scott’s conduct under the circumstances and knowing what Scott knew of those circumstances at the time. Indeed, in his ruling the Judge finds that “When the defendant fired the shot, he reasonably believed he was being attacked with deadly force directed at his home.”
Once the five elements of the law of self-defense have been found in Mr. Scott’s favor, his use of force was lawfully justified, and the responsibility for the loss of life of a purported innocent bystander is properly placed at the feet of the initial aggressors of the conflict, and not upon the person who lawfully defended himself against their aggression.
Analogy to Felony Murder
The clear analogy to this case under the criminal law is the well established principle of felony murder. When a store owner is attacked by an armed robber, defends himself with lethal force, and accidentally kills an innocent customer, the criminal liability for that killing is placed upon the robber, as a murder taking place during the commission of a felony, regardless of the manner in which the killing took place.
The State attorney’s office has appealed Judge Murphy’s ruling to the State Supreme Court.
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.
In addition to the book, Andrew also conducts Law of Self Defense Seminars all around the country, with upcoming seminars scheduled for Columbia SC (10/19), Atlanta GA (11/16), and Epping NH (11/24, at the SigSauer Academy, where Andrew is a Guest Instructor). Click here for reviews of recently completed seminars in Ohio, Virginia, and Florida. You can follow Andrew on Twitter at @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.