When Does Self-Defense Apply in SC?

When does self-defense apply under South Carolina law?

I bet you think that if someone attacks you you have the right to defend yourself, and it’s that simple. That makes sense, and most people would agree…

But did you know that SC’s self-defense law only applies when your attacker is threatening to kill or seriously injure you? Although it is an open question just waiting for an appellate court to decide, under SC’s current rules for self-defense, you have no right to self-defense in a minor scuffle or an assault where there is no danger of death or great bodily injury.

In this article, we will look at when self-defense does and does not apply in SC, including:

• The elements of self-defense,
• When you get a stand-your-ground hearing, and
• Why there is no right to self-defense in SC for “minor” assaults.

WHEN DOES SELF-DEFENSE APPLY IN SC?

When does self-defense apply in SC?

1. If you can prove the elements of SC’s stand-your-ground law or self-defense in a pretrial immunity hearing, the Court must grant immunity from prosecution and dismiss your case, or
2. If you present evidence of the four common-law elements of self-defense at trial, the court will give a jury instruction as to the elements of self-defense, and the jury will decide.

The Elements of Self-Defense

The elements that a person must prove to establish self-defense in SC (see State v. Guderyon) are:

(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, defendant must show that a reasonably prudent person of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and that the circumstances were such as would

warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or the loss of his life; and

(4) the defendant had no other probable means of avoiding the danger.

Provided the defendant produces some evidence for each element, the court must give a jury instruction that lists these elements and instructs the jurors to acquit the defendant if each element has been proven.

Stand Your Ground Hearings

SC’s stand-your-ground law is a bit different. A defendant is entitled to immunity from prosecution if:

• The court finds that the defendant proved the elements of self-defense to the court in a pretrial immunity hearing by a preponderance of the evidence (or defense of others or “another applicable provision of law” that would permit the use of deadly force) (see State v. Glenn), or
• The court finds that the elements of one or more sections of the stand-your-ground law have been proven in a pretrial immunity hearing by a preponderance of the evidence (depending on the circumstances, the element of reasonable fear may be presumed or the defendant may not have a duty to retreat).

If the court finds that the stand-your-ground law applies, the court must dismiss the charges. If the court does not find that the stand-your-ground law applies, but the defendant introduces evidence at trial of each element of self-defense, the court must give a jury instruction on the elements of self-defense and instruct the jurors to acquit if self-defense is proven.

SELF-DEFENSE: WHAT IF YOUR ATTACKER IS NOT TRYING TO KILL YOU?

What happens if someone walks up to you, shoves you, and you defend yourself? Or someone draws back their fist to punch you (they are threatening to assault you) and you punch them first?

One of the elements that you must prove if you claim self-defense in court is that you were “in actual imminent danger of losing [your] life or sustaining serious bodily injury, or [you] must have actually believed [you were] in imminent danger of losing [your] life or sustaining serious bodily injury.”

“Serious bodily injury” is used interchangeably in appellate opinions and the SC Code with the term “great bodily injury,” which is defined throughout the SC Code as “bodily injury which creates a substantial risk of death or which causes serious or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

In most cases, someone shoving you or someone drawing back their fist to punch you is not “imminent danger of losing your life or sustaining serious bodily injury,” which means that, in most “minor” assault cases, there is no right to self-defense under SC law…

It’s Time to Change the Law… How?

I believe, and most people will agree, that we have the right to defend ourselves against even minor physical assaults.

I hope that our state’s appellate courts would also agree – the problem is that there is no appellate opinion I am aware of that addresses this situation, and the appellate courts have consistently stated that danger of losing your life or sustaining serious bodily injury is an element that must be proven.

In State v. Guderyon, the Court of Appeals acknowledged this discrepancy but declined to answer the question because it was not an issue in the case they were deciding:

Although Appellant agreed with “99 percent of the self-defense charge,” he objected to the use of the phrase “serious bodily injury.” Appellant could not “imagine that our courts think that it is the law that a person that is assaulted with something less than deadly force, a fist, does not have a right to defend himself. . . . I do not think that can possibly be the law in self-defense in this state.” While this is certainly a question our appellate courts may need to address, and a concern other states have tackled under appropriate circumstances, such circumstances do not exist here.

In a footnote, the Court also pointed to other state appellate opinions holding that self-defense applies when a person is threatened with “bodily harm” and uses reasonable force to defend themselves. See Byrd v. Isgitt, 338 So.2d 374, 375 (La. Ct. App. 1976) (“The general rule is that where a person reasonably believes he is threatened with bodily harm he may use whatever force appears to be reasonably necessary to protect himself.”); Anders v. Clover, 165 N.W. 640, 641 (Mich. 1917) (“There can be no doubt that one assaulted may justly exercise such reasonable force as may be, or as appears to him at the time to be, necessary to protect himself from bodily harm in repelling said assault.”).

So how do we get SC’s self-defense law to make sense?

When a lower court judge denies a defendant’s 1) request to dismiss in a stand-your-ground hearing where the defendant was defending himself or herself against less than lethal force, or 2) request for a jury instruction on self-defense where the defendant was defending himself or herself against less than lethal force, the defendant is convicted at trial, and the defendant appeals their conviction, the Court of Appeals or SC Supreme Court will be forced to decide the issue.

GOT AXELROD?

If you have been charged with murder in SC when you were defending yourself or others, you are entitled to a stand-your-ground hearing to determine whether your actions were justified by SC self-defense laws.

If you are charged with assault or domestic violence because you were defending yourself against less than lethal force, you should be entitled to a stand-your-ground hearing or self-defense jury instruction, and you may have a valid argument on appeal if the court refuses to consider self-defense and you are convicted.

Call the SC criminal defense trial attorneys at Axelrod & Associates now at 843-353-3449 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.