How Does South Carolina’s Stand Your Ground Law Work?

As criminal defense lawyers, we often hear questions about a person’s legal right to defend himself or herself against attackers or intruders. In the past, South Carolina imposed a “duty to retreat” on people who were threatened before they were justified in using force against an attacker. This meant they had to try to get away before they could legally fight back.

However, this duty had an exception called the “Castle Doctrine,” under which someone was not required to retreat when attacked without fault on his or her own premises. In 2006, South Carolina expanded these protections by adopting what is commonly called the “Stand Your Ground” law. So how does South Carolina’s Stand Your Ground law work, and when does it protect you if you use force to defend yourself?

Quick Answer: South Carolina’s Stand Your Ground law is the Protection of Persons and Property Act, S.C. Code Sections 16-11-410 through 16-11-450. It removes the duty to retreat for a person who is not engaged in unlawful activity and is attacked in a place where he or she has a right to be. A person who uses deadly force as permitted by the law is immune from criminal prosecution and civil action, and a judge decides immunity before trial.

What Is South Carolina’s Stand Your Ground Law?

South Carolina law includes a statute called the Protection of Persons and Property Act. Because of the television coverage of the Zimmerman case and a few other high-profile cases, many people across the United States refer to laws like South Carolina’s Protection of Persons and Property Act as “Stand Your Ground” laws. The Act, found in S.C. Code Sections 16-11-410 through 16-11-450, was adopted in 2006. It codifies and expands the Castle Doctrine, removes the duty to retreat in many situations, and provides immunity from criminal prosecution and civil action for people who use deadly force as the Act permits.

What Are the Elements of Self-Defense in South Carolina?

Under South Carolina common law, you have a right to defend yourself, up to and including the use of deadly force, if:

• The situation wasn’t your fault. If you started the fight, you generally can’t claim self-defense.
• You actually believed you were in imminent danger of being killed or seriously injured, or you actually were in such danger.
• If you acted on that belief, a reasonable person in your situation would have believed the same thing.
• There was no practical way to avoid the danger without using force (the “duty to retreat”).

The Stand Your Ground law removes the duty to retreat in the situations it covers, but the other elements of self-defense still matter.

When Can You Use Deadly Force in Your Home or Vehicle?

Under the Act, a person is presumed to have a reasonable fear of imminent peril of death or great bodily injury when using deadly force if the person against whom the 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 is removing or attempting to remove another person against his or her will from the dwelling, residence, or occupied vehicle.

The person using force must know or have reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.

This means that in a home or occupied vehicle, you generally don’t have to wait to be attacked. It is enough that someone is unlawfully and forcibly breaking in. The Act also defines “residence” to include a dwelling in which a person is visiting as an invited guest, so the protection is not limited to your own home. A person who unlawfully and by force enters or attempts to enter a dwelling, residence, or occupied vehicle is also presumed to be doing so with the intent to commit an unlawful act involving force or a violent crime.

When Does Stand Your Ground Not Apply in a Home or Vehicle?

The presumption of reasonable fear does not apply if:

• The person against whom force is used has the right to be in, or is a lawful resident of, the dwelling, residence, or occupied vehicle, such as an owner, lessee, or titleholder.
• The person being removed from the dwelling, residence, or occupied vehicle is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of the person against whom force is used.
• The person using force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity. For example, if you were conducting a drug deal in your house when the incident occurred, you probably are not protected by the presumption.
• The person against whom force is used is a law enforcement officer who enters or attempts to enter while performing official duties, and the officer identified himself or herself in accordance with applicable law, or the person using force knew or reasonably should have known that the person entering was a law enforcement officer.

We also caution you that if you invited a person into your home, you may not be entitled to the presumption, because an invited guest generally has a right to be in the home. In State v. Manning, the South Carolina Supreme Court held in 2016 that a defendant was not entitled to the subsection (A) presumption where the victim was an invited guest in his home, so he was defaulted into the general stand-your-ground provision; the Court also held that a full testimonial evidentiary hearing is not required in every immunity case.

If you go to trial, you may still be able to argue traditional self-defense, but you may not be able to claim immunity under the Stand Your Ground statute.

Does Stand Your Ground Apply Outside Your Home?

Yes. The Act’s protections extend beyond your home and vehicle. A person who is not engaged in an unlawful activity and who is attacked in another place where he or she has a right to be, including the person’s place of business, has no duty to retreat.

That person may stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to prevent death or great bodily injury to himself, herself, or another person, or to prevent the commission of a violent crime. This protection can apply in public, such as on a sidewalk or at the mall, or at your business.

What Is the Difference Between Stand Your Ground at Home and in Public?

In reading the law, the main distinction is that if you are in a home or occupied vehicle, you don’t have to be attacked. It is enough that someone is unlawfully and forcibly breaking in. However, if you are walking down the street or are at your business, the law requires that you actually be attacked, and you must reasonably believe that the force you use is necessary. The following table summarizes the key differences:

Does Stand Your Ground Give You Immunity From Prosecution?

Yes. Under S.C. Code Section 16-11-450, a person who uses deadly force as permitted by the Act is justified in using deadly force and is immune from criminal prosecution and civil action for using deadly force. “Criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the person. The Act also provides that a law enforcement agency may not arrest a person for using deadly force unless probable cause exists that the force used was unlawful.

If a person is sued for using force justified under the Act, the court must award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred in defending the civil action if the court finds that he or she is immune.

How Does a Stand Your Ground Immunity Hearing Work?

In State v. Duncan, decided in 2011, the South Carolina Supreme Court held that a judge decides immunity under the Act before trial and that the defendant must prove entitlement to immunity by a preponderance of the evidence. The court later clarified that a full testimonial evidentiary hearing is not required in every case; the scope of the hearing is decided case by case, and sometimes undisputed facts and counsel’s arguments are enough.

At the hearing, the defense may present testimony, physical evidence, and other proof showing that the defendant’s use of force was justified under the Act. If the judge grants immunity, the court dismisses the charges. If the judge denies immunity, the case can proceed to trial, where the defendant can still argue self-defense to the jury. For a closer look at how self-defense claims are proven at trial and how pretrial immunity hearings work, see our article on assault charges versus self-defense claims in South Carolina.

Who Has the Burden of Proof of Self-Defense at Trial?

If evidence supports each element of self-defense or defense of others, the judge must instruct the jury, and the prosecution then has the burden of disproving at least one element beyond a reasonable doubt. South Carolina’s Stand Your Ground law handles immunity from prosecution differently because the judge decides immunity before trial, and the defendant must prove it by a preponderance of the evidence.

What Are Common Myths About Self-Defense in South Carolina?

We’ve had many people ask us whether a couple of things are true. First, gun owners have asked, “If I shoot someone on my front porch, I should drag him inside before the police get there, right?” Our answer is “No!” Maybe that had a chance of working 100 years ago, but with modern forensics, investigators will likely figure out what actually happened from body fluids, ballistics, and other evidence. Then your motives will be questioned.

Also, under today’s law, the Act defines a “dwelling” to include an attached porch with a roof. If you truly believe someone is about to forcibly enter your home, the Act’s protections may apply even on your front porch. If you were in your front yard or down the street, it would be harder to convince the judge that the person was about to break in, which would leave you having to show that you were protecting yourself or someone else from death or great bodily injury.

Another thing people have asked is whether, if someone breaks into their home and they shoot that person, they should fire a few more shots into the wall. The premise is that by making it look like you missed a few shots before hitting the intruder, you can argue that you were truly nervous and in fear. Again, you never know what forensics might discover, and tampering with evidence can create serious criminal problems of its own.

If you are ever in that situation, between your fear, your adrenaline, and many other emotions, worrying about whether to shoot the wall is probably the least of your concerns. Use your head, evaluate the situation, and handle it as you think best based on what you see and hear at the time. No bright-line rules apply in these situations.

How Should Gun Owners Prepare for a Home Intrusion?

We recommend that if you are a gun owner, you do a “fire drill” with the people in your home so that they know what you intend to do if you hear someone in your house in the middle of the night. Where do you intend to position yourself? What should others in your home do, or where should they hide?

Is it better for them to call the police or stay hidden? Only you know your home’s layout and the maturity and experience of those living with you. Use your common sense and make a safety plan. And keep your guns out of children’s reach! You should also understand the laws on where you can lawfully carry a firearm, which we explain in our article on handgun carry laws in South Carolina.

Stephan Futeral and Thomas Nelson also wrote the book “Gun Laws in South Carolina – Piecing It All Together,” which explains South Carolina laws and your rights when you own, carry, or use a firearm. You can learn more about it on our gun laws in South Carolina page.

Do You Need a Lawyer If You Used Force in Self-Defense?

Yes. If you used force to defend yourself, someone else, or your home, you may be arrested and charged even if you believe your actions were justified. What you say to the police, how evidence is preserved, and whether your lawyer seeks a pretrial immunity hearing can all affect your case’s outcome.

The attorneys at Futeral & Nelson have represented clients in Charleston, Mount Pleasant, North Charleston, Summerville, and throughout the Lowcountry since 2003. If you are facing charges after using force in self-defense, our Charleston criminal defense lawyers can review your situation. Call us at 843-284-5500 to discuss your case.