What is a stand your ground hearing in SC? 

In State v. McCarty, decided September 21, 2022, the SC Supreme Court reversed a trial court’s denial of immunity under the SC Protection of Persons and Property Act because the trial court, after hearing the evidence in a stand your ground hearing, found that the jury (and not the judge) must decide whether the defendant proved the elements of self-defense. 

The trial court relied on State v. Curry, 406 S.C. 364, 752 S.E.2d 263 (2013) to find that the elements of self-defense are a question for the jury when there is conflicting evidence – despite numerous cases since Curry that have explained:

1. Curry was a special case because it dealt with a directed verdict motion and not a pretrial stand your ground hearing, and 
2. Conflicts in the evidence are not a reason to deny stand your ground immunity – it’s not a directed verdict motion, and the judge, not the jury, must initially decide whether a defendant is entitled to immunity under the SC Protection of Persons and Property Act. 

So, what is the procedure for a stand your ground hearing? 

Stand Your Ground: The SC Protection of Persons and Property Act

The SC Protection of Persons and Property Act provides immunity from prosecution if the court finds – by a preponderance of the evidence – that self defense or the Act applies in a pretrial stand your ground hearing. 

If, after hearing the evidence, the court finds that the defendant has not proven the elements of self defense and the Act does not apply, the defendant can still present evidence of self defense or defense of others and the jury then decides whether the government has disproven the elements of self defense beyond any reasonable doubt. 

The Elements of Self Defense in SC

The elements of self defense include:

• The defendant had no part in bringing on the difficulty,
• The defendant feared that they would be seriously injured or killed (or that another person would be seriously injured or killed for “defense of others”), 
• The defendant’s fear of injury or death was objectively reasonable, and
• There was no practical way to avoid the danger. 

In the context of a stand your ground hearing, however, these elements may be modified depending on the situation – for example, there is no duty to retreat if you are in a place you have a right to be, and, in certain circumstances, there is a presumption that there is a reasonable fear of injury or death. 

Duty to Retreat

Section 16-11-440(C) says that there is no duty to retreat before defending yourself or others if you are 1) engaged in a lawful activity and 2) attacked in a place where you have a right to be:

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.

Forcible Entry or Removal from a House or Vehicle

Section 16-11-440(A) says that there is a presumption that the person has a reasonable fear of great bodily injury or death when someone is unlawfully and forcefully entering, has unlawfully and forcibly entered, or attempts to remove a person against their will from a dwelling, residence, or occupied vehicle:

(A) 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.

Stand Your Ground Hearings in SC: Immunity from Prosecution 

More importantly, a defendant who acted in self defense has the right to a stand your ground hearing before their trial begins, and, if the court decides that the defendant has proven self defense by a preponderance of the evidence, the court must grant them immunity and dismiss the charges. 

SC Code 16-11-450 says:

(A) A person who uses deadly force as permitted by the provisions of this article or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force, unless the person against whom deadly force was used is a law enforcement officer acting in the performance of his official duties and he identifies himself in accordance with applicable law or the person using deadly force knows or reasonably should have known that the person is a law enforcement officer.

There are two situations where the court can grant immunity at a stand your ground hearing:

1. When the defendant is entitled to immunity under the provisions of the Protection of Persons and Property Act, or
2. When the defendant is entitled to immunity because they have proven the elements of self-defense and were justified in using deadly force. 

“Or Another Applicable Provision of Law”

Because the Protection of Persons and Property Act says, “A person who uses deadly force as permitted by the provisions of this article or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution,” the defendant is entitled to immunity if he or she can prove self defense under any applicable South Carolina law – including self defense, defense of others, or defense of habitation (the Castle Doctrine). 

First, a defendant seeks immunity under SC Code § 16-11-450 by “demonstrating the elements of self-defense to the satisfaction of the trial court by the preponderance of the evidence.” State v. Glenn, 429 S.C. 108, 118, 838 S.E.2d 491 (S.C. 2019). 

“As Permitted by the Provisions of This Article”

Second, “if the defendant has failed to meet the elements of reasonable fear or the duty to retreat, the court should then determine whether section 16-11-440(A) or (C) is applicable.” Glenn, 429 S.C. at 118, because:

• If the attacker was unlawfully and forcibly entering or attempting to remove someone from a home or vehicle, the element of reasonable fear is presumed, and
• If the defendant was not acting unlawfully (“unlawful” conduct must be the proximate cause of the attack, otherwise unlawful conduct does not prohibit immunity under the Act) and was in a place they had a right to be, there is no duty to retreat. 

In either case, it is a question for the court (not the jury) to decide – whether the defendant has proven 1) the elements of self defense, defense of others, or habitation, or 2) that the Act applies – by a preponderance of the evidence. 

If the court finds that the defendant is not entitled to immunity, the defendant can still present the facts supporting self defense to the jury, argue self defense, get a jury instruction on self defense, and the prosecution must disprove each of the elements of self defense before the defendant can be convicted… 

Questions About Stand Your Ground Hearings in SC?

The SC criminal defense lawyers at Coastal Law will investigate your case and raise all possible defenses as we work on getting your case dismissed and prepare it for trial, including self defense, defense of others, and immunity under the SC Protection of Persons and Property Act. 

If you’ve been charged with a crime in SC, call now at (843) 488-5000 or send us an inquiry through our website to talk with a Myrtle Beach criminal defense lawyer today.