Reckless, Episode 3: Stand Your Ground in South Carolina & the Protection of Persons and Property Act

In Sunday's episode of "Reckless," entitled Stand Your Ground, a husband hears an intruder in the middle of the night and shoots him dead in the foyer of his home. The husband claims that he thought that the intruder had a gun, but the police discover no such firearm, and the victim was shot in his back. This sets the stage for an immunity hearing under the Protection of Persons and Property Act, South Carolina's Stand Your Ground law. The folks at "Reckless" contacted me to ask for a type of case in which plot twists might alter the application of the Protection of Persons and Property Act, and here is what I told them.

South Carolina's Protection of Persons and Property Act states in relevant part that

(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...; 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….

(D) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or a violent crime as defined in Section 16–1–60. S.C.Code Ann. § 16–11–440 (Supp.2010).

The Act also contains an immunity provision, which reads as follows:

(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.... S.C.Code Ann. § 16–11–450 (Supp.2010) (emphasis supplied).

Under the Act, then, the husband at first blush seems to have an ironclad claim of self-defense. Indeed, under the immunity provision, he won't even have to face the music at trial. If the intruder was in fact an intruder, it is presumed that he intended to commit a forceful/violent crime, and it is presumed that the husband had reasonable fear of death or great bodily injury. Therefore, as in Sunday's episode, the initial presumption is that the husband will be exonerated at an immunity hearing.

But what if the intruder wasn't an intruder? Here's an example I gave to the people at "Reckless":

Dan’s wife, Wanda, invites her friend, Fred, inside the couple’s home. While Wanda is using the bathroom, Dan arrives home, and, thinking that Fred is an intruder, Dan fatally shoots Fred. In this case, the Act does not apply. Because Fred did not forcefully and unlawfully enter Dan’s home, (1) Fred is not presumed to have entered with the intent to commit an unlawful act involving force or a violent crime under Section § 16–11–420(D); and (2) Dan is not presumed to reasonably fear imminent death or great bodily injury under Section § 16–11–420(A). Therefore, Dan would have to affirmatively present evidence of the first three elements of self-defense to have a viable defense (Dan has no duty to retreat in his own home).  He could also try to raise the defense of mistake of fact.

For those of you who watched Sunday's episode of "Reckless," you know that this is similar to what happened in the show. The man whom the husband shot turned out to be having an affair with the husband's wife, with the implication being that the man possibly entered the house with the wife's permission. In this case, as I note, the husband is not entitled to immunity even if he reasonably thinks that the man was an intruder. Thus, as in the show, the husband iseemingly not entitled to immunity. 

But what if the husband was aware of the affair and thought the man was in his home with permission, but it turned out that the wife had ended the affair with the man, meaning that he was actually in the home without permission? Again, watchers of Sunday's episode will recall that some version of this fact pattern was a later plot twist in the episode, with the wife claiming that she had ended the affair. And here's what I told the folks at "Reckless":

In the second case, Dan’s wife, Wanda, is having an affair with Al before she breaks off the affair and tells Dan about it. Days later, Al thinks that Dan is out of town and breaks into the house belonging to Dan and Wanda to try to see Wanda after she refuses to allow him inside the house. Dan is not actually out of town, and, when he returns home, he sees Al walking in the hallway. Dan does not think that Al broke into the house. Instead, he thinks that Wanda invited him inside to resume their affair. Enraged by the affair, Dan fatally shoots Al.

In this case, because Fred did forcefully and unlawfully enter Dan’s home, (1) Fred is presumed to have entered with the intent to commit an unlawful act involving force or a violent crime under Section § 16–11–420(D). But, because Dan does not know or have reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred, he is not presumed to have a reasonable fear of imminent death or great bodily injury under Section § 16–11–420(A). Therefore, Dan would have to affirmatively present evidence of the first three elements of self-defense to have a viable defense, subject to the presumption regarding Fred’s intentions (Again, Dan has no duty to retreat in his own home). 

-CM