Storming the Castle Doctrine 

S.C. Stand Your Ground laws are similar to Florida’s — and they probably won’t change

“I think right now the chance of getting a change in Stand Your Ground laws in South Carolina is similar to the chance of a snowball making it through hell,” said local NAACP leader Joseph Darby (at right in gray suit) at a press conference on the George Zimmerman verdict last week.

Paul Bowers

“I think right now the chance of getting a change in Stand Your Ground laws in South Carolina is similar to the chance of a snowball making it through hell,” said local NAACP leader Joseph Darby (at right in gray suit) at a press conference on the George Zimmerman verdict last week.

Gerald W. Stoudemire remembers the day when Rep. Bakari Sellers and then-Rep. Nikki Haley all showed up at his shooting range in Little Mountain, S.C., to qualify for their concealed weapon permits. Stoudemire's 15-year-old grandson helped show Sellers, a young black Democrat from Bamberg County, how to line up his shots, and at the end of the session Stoudemire took pictures of both lawmakers standing beside bullet-riddled paper targets.

That was five years ago. The debate over gun control is and has long been polarized along racial and party lines, but here were a black Democrat and a Republican daughter of Indian immigrants coming together to learn how to blow away would-be assailants. A gun guy couldn't ask for a better feel-good story.

Stoudemire is the president of Gun Owners of South Carolina, an NRA state association. In 2006, Gun Owners of South Carolina joined the American Legislative Exchange Council and NRA groups across the country in pushing for new state Stand Your Ground laws, meant to expand gun owners' rights to use deadly force. The country's first Stand Your Ground law had just passed in Florida in 2005, and in June 2006, South Carolina got its own similar set of laws, called the Protection of Persons and Property Act. The state House of Representatives passed the bill unanimously.

To Stoudemire, the law made good sense. Before the bill passed, he says, "If you were attacked and you were not in your home but you were in your vehicle or your business or anything, you had to run from it." Stand Your Ground laws like South Carolina's take an old common-law idea called the castle doctrine — that is to say, a home is a person's castle and he has a right to defend it — and extend it to other places including cars and businesses.

"A person who uses deadly force as permitted by the provisions of this article ... is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force," the South Carolina law reads. The Protection of Persons and Property Act lays out a few examples of places where a person can defend him or herself against an intruder using lethal force. The law says a person who is not doing anything illegal has a right to shoot if any intruder forcefully and illegally enters "a dwelling, residence, or occupied vehicle, or if [the intruder] removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle."

But in a later clause, the law extends the castle doctrine about as far as it can go (italics added for emphasis): "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."

Violent crimes, as defined in Section 16-1-60, include murder, armed robbery, first- or second-degree criminal sexual misconduct, trafficking in persons, first- or second-degree burglary, aggravated voyeurism, promoting prostitution of a minor, felony DUI resulting in death, and boating under the influence resulting in death.

The recent not guilty verdict for George Zimmerman, the neighborhood watch leader who shot and killed unarmed teenager Trayvon Martin last February in Sanford, Fla., has refocused national debate on the topic of Stand Your Ground laws. True, Zimmerman's lawyers never invoked Stand Your Ground as a defense in court, even though the jury's instructions did include a brief explanation of what would constitute "justifiable use of deadly force." But from impassioned pleas for reform at Trayvon Martin vigils to U.S. Attorney General Eric Holder's anti-Stand Your Ground comments at an NAACP convention last Tuesday, the topic keeps coming up.

In June, Urban Institute senior fellow John Roman crunched some FBI numbers and found that, in states where Stand Your Ground laws exist, "The odds that a white-on-black homicide is ruled to have been justified is more than 11 times the odds a black-on-white shooting is ruled justified." Meanwhile, conflicting statistical studies touted by both sides of the debate have shown that Stand Your Ground laws either increased or decreased crime rates.

At a press conference in Charleston Tuesday, when asked if the Charleston Branch NAACP planned on pushing for a revision of South Carolina's Stand Your Ground laws, Vice President Joseph Darby sounded a note of pessimism. "I think right now the chance of getting a change in Stand Your Ground laws in South Carolina is similar to the chance of a snowball making it through hell," Darby said, "because the majority of the legislature is reactionary, and they pander to the ignorant and the fearful through laws like that."

Stoudemire, whose organization is currently pushing a bill that would allow concealed weapons in restaurants that serve alcohol, certainly doesn't see things that way. "The wolf, when he decides it's time to eat, he chooses to go to the sheep's pen, not the lion's pen," he says.




Not all Stand Your Ground laws are the same. Arizona's law, for instance, specifies a short list of offenses considered "violent crimes" that can be defended against with deadly force. Indiana's law states that you can stand your ground on an airplane while it is on a runway, but only if the doors are already closed for flight. And South Dakota's Stand Your Ground law only applies if someone is intruding on property that you or your family own, or if you have a legal right to protect someone else's property.

But like Florida and many other Stand Your Ground states, South Carolina puts no limitation on where you can stand your ground except to say that you must be in a place you are legally allowed to be. The key phrase in the law is "including, but not limited to, his place of business."

"This 'exception,' for lack of a better term, swallows the rule of home, car, or work," says Ninth Circuit Solicitor Scarlett Wilson, whose office prosecutes criminal cases in Charleston and Berkeley County general sessions courts.

According to Wilson, a 2011 state Supreme Court decision, State v. Duncan, ruled that the Stand Your Ground law only applies in pretrial settings — meaning that law enforcement can decline to make an arrest or a judge can decline to hear the case based on the Protection of Persons and Property Act, but a jury would never have to decide whether it applied in a criminal case. In court, Wilson says, a defendant could argue self-defense, a separate legal argument from Stand Your Ground, and the prosecutor would have to disprove the defendant's claim. Still, Wilson says a high-profile decision like in the Zimmerman case could sway juries in South Carolina.

"Because the term has been bandied about so much, I anticipate we will have to work hard to disabuse jurors of the Stand Your Ground notion," Wilson says. "I am concerned that potential jurors could use the Zimmerman case to justify their verdicts one way or the other. Cases should be decided on the facts revealed in the courtroom, not pre-conceived ideas of what the press says the facts are or what someone believes the law should be."

The State Law Enforcement Division doesn't track the number of Stand Your Ground claims made per year in South Carolina, but Wilson has seen a few examples where Stand Your Ground was invoked. "It is not frequent but not uncommon, either," Wilson says. In October 2007, Charleston mayoral candidate and off-duty cop Omar Brown got in a gunfight outside a Dorchester Road convenience store and shot a man multiple times, but Wilson declined to file criminal charges against Brown after surveillance footage showed he was standing his ground against an assailant — even though police said Brown fired first.

Then there was the December 2011 case of Ray and Maria Thompson, who went to check on a vacant house they owned in Spartanburg and ended up shooting a homeless man who was squatting there. When they walked in, the man reportedly grabbed Ray's arm, and Maria shot the man in the face. Seventh Solicitor Barry Barnette told GoUpstate.com that the decision not to arrest the Thompsons came down to the castle doctrine. "Obviously, you have a right to defend your property," Barnette said at the time. The homeless man, Greg Wells, was taken to the hospital in critical condition.

And then there's Gregg Isaac, a man who is charged with breaking into a Columbia apartment and shooting and killing a man who lived there. In a case currently being discussed in the state Supreme Court, Isaac's attorney has argued that since the apartment resident drew a gun on him, Gregg should be protected from prosecution by the Stand Your Ground law. (The Supreme Court is not determining the validity of that argument, but the obvious flaw is that Gregg did not have a legal right to be in the apartment.)




In March 2012, less than a month after the shooting of Trayvon Martin, state Rep. Bakari Sellers introduced a bill that would delete the paragraph that extends a gun owner's Stand Your Ground protection to any "place where he has a right to be, including, but not limited to, his place of business." The bill picked up two co-sponsors but never made it past the Committee on Judiciary.

click to enlarge Rep. Bakari Sellers
  • Rep. Bakari Sellers

"In no way am I attempting to assault the Second Amendment or anything," Sellers says. "I'm just trying to use common sense." Sellers, who recently announced a run for lieutenant governor, says he plans to "review" the proposed bill from 2012 and possibly introduce a new one after the legislative session begins again in January 2014. "I think people understand the problem is with the ambiguity of the law, and I think people can see that with the standard being lower to use deadly force than we give to our military and law enforcement, I just wanted to review and have a discussion about it."

Sellers, the son of civil rights activist Cleveland Sellers, says personal prejudices can influence whether a person decides to pull a gun in self-defense. "The reasonable fear can be based on prejudices and preconceived notions," Sellers says. "I mean, if I've been attacked by three giant pandas before and I see another panda, I might think that I'm about to get beat up again ... You know, people just have certain prejudices, and you shouldn't be able to kill somebody based on those preconceived notions and prejudices."

The bill Sellers introduced in 2012 also would have deleted the provision that a person may stand his ground with deadly force "if he reasonably believes it is necessary to prevent death or great bodily injury." It was a tough sell in a House that originally passed the Protection of Persons and Property Act unanimously in 2006, but pushed to remove it anyway.

"When you're walking down the street and you're a concealed weapons permit holder, as am I," Sellers says, "I think you should have a higher standard than some 'reasonable belief' that your life is in danger."


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