When can you plead self-defense in South Carolina?

Although other states allow a defendant to plead self-defense when they use “reasonable force” to defend themselves against “bodily harm,” South Carolina’s self-defense rules require a person to prove that they were in danger of death or serious bodily injury before they can plead self-defense.

That leaves no reasonable defense in the thousands of situations where someone threatens to punch, shove, kick, or otherwise harm a person in a way that is not likely to cause death or serious bodily injury…

Don’t we have a right to defend ourselves from any attack, regardless of the severity? Does SC’s Court of appeals and Supreme Court believe a person must simply stand there or attempt to run away as someone is punching, shoving, or kicking them?

What about defense of others? If someone punches your child but it’s not likely to kill or seriously injure them, are we supposed to just stand and watch?

Below, I’ll discuss:

• The elements of self-defense in SC,
• The procedure to plead self-defense,
• The definition of “serious bodily injury,” and
• Why SC’s appellate courts (or legislature) need to update SC’s self-defense rules.

What are the Elements of Self-Defense in SC?

Before a person can raise self-defense as a defense to criminal charges in SC, they must provide evidence that:

1. They were “without fault in bringing on the difficulty,”
2. They were “in actual imminent danger of losing [their] life or sustaining serious bodily injury,” or had a reasonable fear of death or serious bodily injury,
3. A “reasonably prudent person of ordinary firmness and courage” would have believed that they were in imminent danger and the “fatal blow” was necessary to save themselves from death or serious bodily harm, and
4. There was “no other probable means of avoiding the danger” (often referred to as the “duty to retreat”).

(See State v. Guderyon)

What is the Procedure to Plead Self-Defense?

Since the passage of the “Protection of Persons and Property Act,” there are two stages to pleading self-defense in SC.

First, if there is evidence of self-defense, the defense attorney should request a “stand your ground” hearing to ask the court for immunity before the trial begins. (See State v. Glenn)

If the court finds by a preponderance of the evidence that self-defense (or any other “applicable provision of law” like defense of others or the castle doctrine) applies, the court should grant immunity to the defendant and the case should be dismissed.

If all elements of self-defense are not proven, the court should then consider the provisions of the stand-your-ground law (Protection of Persons and Property Act) which may permit a presumption that the defendant had a reasonable fear of death or serious bodily injury (for example, if the attacker is unlawfully and forcefully entering or trying to remove a person from a residence or occupied vehicle), or may do away with the duty to retreat element (if they are attacked in any place they have a legal right to be).

Second, if the court denies immunity at the pretrial stand-your-ground hearing, 1) the defendant can still present evidence of self-defense at trial, 2) if the defendant provides evidence of each element, the burden shifts to the prosecution to disprove self-defense, and 3) the court must instruct the jurors to find the defendant not guilty if the elements of self-defense were proven.

Self-Defense in SC: What is the Definition of “Serious Bodily Injury?”

The above procedure only applies when there is a reasonable fear of death or serious bodily injury, though (it is the second self-defense element that must be proven).

If someone punches you or attacks you in a way that is not likely to cause death or serious bodily injury, SC’s appellate courts say that you do not have the right to defend yourself and you can be convicted of a crime.

What is “serious bodily injury?”

The only place “serious bodily injury” is defined in the SC Code is in Section 23-31-400 (Using a Firearm While Under the Influence of Alcohol or a Controlled Substance) which says:

’Serious bodily injury’ means a physical condition which creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of a bodily member or organ.

This is the same definition used for “great bodily injury” in most statutes, and the terms are used interchangeably in the SC Code and appellate opinions – for example, the Protection of Persons and Property Act uses the term “great bodily injury” instead of “serious bodily injury.”

“Great bodily injury,” like the definition of “serious bodily injury” in 21-31-400, means “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.”

This definition is also found in:

• Section 16-25-10 (DV 1^st degree),
• Section 16-3-600 (ABHAN),
• Section 16-3-95(c) (infliction or allowing infliction of great bodily injury upon a child),
• Sections 16-3-1050 and 43-35-85 (abuse, neglect or exploitation of a vulnerable adult),
• Section 16-11-430(2) (the Protection of Persons and Property Act),
• Section 16-11-523(D)(1) (injury to real property for purpose of obtaining nonferrous metals),
• Section 56-5-2945(B) (felony driving under the influence resulting in great bodily injury),
• Section 50-21-113 (A) and (B) (operation of moving water device while under the influence of alcohol or drugs resulting in great bodily injury or death),
• Section 56-5-750 (failure to stop motor vehicle when signaled by law-enforcement vehicle),
• Section 56-5-1210 (duties of drivers involved in accident resulting in death or personal injury), and
• Section 56-5-2780 (unlawfully passing a stopped school bus).

In most cases, a threatened punch, kick, or shove is not likely to create “a substantial risk of death” or cause “serious or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ,” which means that, in most cases involving assault and battery or domestic violence, self-defense or defense of others is not an available defense.

If Self-Defense is Denied by the Court, Appeal the Conviction

So, what should you do if you are charged with a crime like assault and battery, assault and battery by mob, or domestic violence when you were defending yourself?

• File a motion asking the court for a pretrial stand-your-ground hearing based on the facts that demonstrate you were defending yourself (or defending another),
• If the pretrial motion is denied, be sure to present evidence of each element of self-defense at trial,
• Ask the court for a jury instruction explaining self-defense and instructing the jurors to acquit if each element has been proven, and
• Appeal any conviction if the court denies your motions.

Criminal Defense Lawyers in Charleston, SC

SC’s self-defense law says that you do not have a right to defend yourself unless you are in danger of being killed or sustaining serious bodily injury. If you are charged with assault and battery, domestic violence, or another criminal offense where you were defending yourself from a “minor” assault, you should:

1. Make a record that you are pleading self-defense, and
2. If the court denies a stand-your-ground hearing or a jury instruction on self-defense, appeal any conviction.

Call Charleston, SC criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or send us a message to speak with a SC criminal defense lawyer today.