A Messy Menace: Immunity under the South Carolina “Protection of Persons and Property Act”
Professor F. Patrick Hubbard
Ronald L. Motley Distinguished Professor of Tort Law
Karl Llewellyn, who was both a prominent legal philosopher and principal drafter of the Uniform Commercial Code, once noted, “Technique without morals is a menace; but morals without technique is a mess.” The immunity established by the South Carolina “Protection of Persons and Property Act” provides an unfortunate example of the wisdom in both parts of Llewellyn’s statement: The Act is both a menace and a mess.
The Menace. The Act is a menace because the substantive rules that provide a basis for the immunity place too little weight on the value of life compared to other values. For example, the Act authorizes a person to shoot a friend with intent to kill if the friend, who had left his cell phone at the person’s house, pushes his way into the house after being told not to come in at this time.
The Mess. The South Carolina Legislature created the mess by adopting an immunity from criminal prosecution and civil action without providing a remedy procedure for determining whether a defendant is entitled to an immunity. The South Carolina Supreme Court’s efforts to address this mess have themselves been messy. More specifically, one or both opinions concerning the immunity are inconsistent, rely on authority that is clearly unconstitutional, and fail to provide adequate guidance concerning the procedure at a pretrial hearing on the issue of immunity. Moreover, a denial of the immunity will never be appealable in any meaningful sense because such an appeal could only occur in the case of a conviction, in which case the appeal is too late to prevent prosecution and, as a practical matter, would focus on whether the state had satisfied its burden of showing guilt beyond a reasonable doubt rather than on whether the immunity applied.
A fundamental aspect of this mess is that it serves very little purpose in most cases. In cases where the prosecution has a strong case, a defendant is not likely to utilize the pretrial hearing procedure because: (1) the immunity is not likely to be applicable; and (2) presenting the defense case at the hearing would provide an opportunity for discovery by the prosecution. On the other hand, where the prosecution’s case is so weak that a defendant would choose to assert his right to a hearing, the prosecution is not likely to decide to pursue prosecution and trial.
A. The Act
South Carolina’s “Protection of Persons and Property Act,” which was adopted in 2006, is virtually identical to a statute enacted in Florida a year earlier. A number of other states have also adopted similar statutes. These acts can be summarized in terms of the following:
(1) vastly expanding the concept of “dwelling” to include, for example, vehicles of any kind, and tents;
(2) adopting a presumption that a person has a reasonable fear of death or great bodily injury from a person who is or has “forcibly” entered a dwelling or occupied vehicle;
(3) eliminating a duty to retreat in a “retreat jurisdiction”; and
(4) establishing an immunity from criminal prosecution or civil liability for a person using deadly force in accordance with the act.
B. The Menace
These acts’ expansions of the right of citizens to use deadly force have generated a considerable amount of controversy. The primary reason for criticism is that the acts place too little weight on the value of human life vis-à-vis the “sanctity” of a person’s home or “castle.”
An example of such a devaluing of life occurred in State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011), which interpreted the statute as follows: (a) the presumption in A-(1) above is conclusive; (b) a defendant is entitled to a pretrial hearing on the immunity from prosecution; and (c) a defendant is immune from prosecution if he shows by a preponderance of the evidence that the presumption applies. Based on this interpretation, the court held that the immunity applied, and thus barred prosecution in Duncan’s case, because: (a) the facts “showed by a preponderance of the evidence that the victim [Spicer] was in the process of unlawfully and forcefully entering . . . [the] home in accordance with the” the requirements for the presumption under the Act; and (b) satisfying the conditions for the presumption conclusively showed, by itself, that the killing was justified under the Act.
However, the evidence involved also indicated that, even though the presumption of “reasonable fear of imminent death or great bodily harm” was deemed conclusive, a rebuttable presumption could have been easily rebutted. Prior to the killing, Spicer, along with his and Duncan’s girlfriends, were visiting in Duncan’s home. At one point, Duncan became angry at Spicer for making inappropriate comments concerning a photograph of Duncan’s daughter in a cheerleading outfit and asked Spicer to leave. According to the trial testimony of Duncan’s girlfriend (Templeton):
[Spicer] left but returned a few minutes later . . . . [He] was opening the screened porch door when . . . [Duncan] exited the front door of the house onto the porch with the gun. At one point, . . . [Spicer] began advancing across the porch and Templeton “was between [them] . . ., and was trying to get . . . [Spicer] off the steps and leave.” Spicer “continued to force his way onto the porch.”
Id. at 407, 709 S.E.2d at 663. At this point, Duncan shot and killed Spicer even though, as indicated above, there was no conclusive evidence that Templeton or Duncan was threatened by serious harm. Under the conclusive presumption interpretation of the statute, Duncan only had to show unlawful forcible entry in order to be immune from prosecution.
Because this statutory authorization of deadly shooting to prevent a rude forcible entry places so little value on human life, it is an example of Llewellyn’s concern for menace resulting from technique without morals. Because I have addressed this point in detail elsewhere, I will simply refer to these other writings at this point. For the short version, see Testimony of Patrick Hubbard before the ABA National Task Force on Stand Your Ground Laws. For the current draft of the long version, see F. Patrick Hubbard, The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force, 21 George Mason L. Rev. ___ (2014). .
C. The Mess
1. The Act
The South Carolina Act uses the following language in providing for the immunity under the Act:
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 deadly use of force . . . .
S.C. Code Ann. § 16-11-450(A) (2006). Although this language makes it clear that a person acting “as permitted by” the Act has an immunity from prosecution, it does this with a complete lack of good technique. More specifically, the Act provides no guidance concerning how courts will determine whether a particular person is entitled to the immunity.
2. The Cases
As a result of this lack of guidance, the courts have been forced to fabricate a scheme through the process of statutory interpretation, which seeks to determine the “intent of the legislature.” The South Carolina Supreme Court has undertaken this interpretive task in two cases. State v. Duncan, supra, and State v. Isaac, No. 27302, 2013 WL 4456870 (S.C. Aug. 21, 2013).
a. State v. Duncan
In Duncan, the trial court granted the defendant a pretrial hearing and held that the defendant had shown, by “any standard of proof,” that he was entitled to the immunity. The Supreme Court unanimously held:
(1) “[T]he legislature intended to create a true immunity, and not simply an affirmative defense.”
(2) A defendant is entitled to a pretrial hearing to determine if the immunity applies.
(3) A defendant is entitled to the immunity of he can show by a preponderance of the evidence that the immunity applies.
(4) “[A]n order granting or denying a motion to dismiss under the Act is immediately appealable, as it is in the nature of an injunction,” which is appealable pursuant to S.C. Code Ann. § 14-3-330(4) (1976), which provides: “The Supreme Court . . . shall review upon appeal . . . an interlocutory order or decree . . . granting, continuing, modifying, or refusing an injunction . . . .”
(5) Duncan was immune from prosecution because he had shown by the preponderance of the evidence at his pretrial hearing that he acted “as permitted by” the Act and was, therefore, immune.
The reasons for this holding were:
(1) Section 16-11-420(A) of the Act provides: “It is the intent of the General Assembly to codify the common law Castle Doctrine which recognizes that a person’s home is his castle . . . .”
(2) Section 16-11-420(B) provides: “The General Assembly finds that it is proper for law-abiding citizens to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.”
(3) Section 16-11-450(A) provides an immunity “from criminal prosecution.”
(4) This approach was consistent with that used in other states.
b. State v. Isaac
Isaac involved an appeal by the defendant from a ruling at his pretrial hearing that he was not entitled to the immunity. The Court held: (1) the Act is not retroactive (5-0); and (2) an order denying a claim of immunity is not appealable (4-1).
The reasons given for the holding of nonappealability are:
(1) Jurisdiction for an immediate appeal of a decision granting or denying an appeal must be based on S.C. Code Ann. § 14-3-330(1) (1976), which provides for appellate review of the following: (a) “Any immediate judgment, order or decree in a law case involving the merits in actions commenced in the court of common pleas and general sessions . . .”; and (b) “final judgments in such actions” including “any intermediate order or decree necessarily affecting the judgment not before appealed from . . . .”
(2) An order granting the immunity (as in Duncan) is immediately appealable because it is a final order under section 14-3-330(1).
(3) An order denying immunity is not immediately appealable because it: (a) does not involve a final order; and (b) “it does not finally determine a substantial cause of action or defense.”
(4) Intermediary appeals should be avoided, especially in criminal cases, because such appeals can “be destructive of the prompt administration of justice” and they allow a defendant to postpone trial and a final decision.
Perhaps because of the limited guidance in the Act, Duncan and Isaac are unusually problematic in three respects: (a) the cases are inconsistent; (b) Isaac relies on a questionable view of the importance of an immunity from prosecution; and (c) the cases provide little explicit guidance on how the pretrial hearing should be conducted.
Lack of consistency. For cases decided only two years apart by the same justices, Duncan and Isaac are unusually inconsistent. In particular, the cases disagree about whether the appeal of an immunity determination is based on Section 14-3-330(1) (Isaac) or Section 14-3-330(4) (Duncan).
Isaac distinguishes Duncan on the ground that Duncan involved the granting of the immunity rather than the denial. However, this distinction does not matter unless appellate jurisdiction can be based only on Section 14-3-330(1). Thus, despite a claim that it is only clarifying Duncan, the majority appears to be reversing a unanimous decision, that is only two years old, concerning the basis of appellate jurisdiction by the same justices.
Importance of the immunity from prosecution. One way to view the disagreement between the majority and the dissent in Isaac is to focus on the relationship between the underlying substantive right to immunity from the procedure to protect that right.
The dissent in Isaac notes that the legislature clearly intended to provide an immunity from prosecution and argues that “we can honor the General Assembly’s clear mandate only if we can review any pre-trial denial of criminal immunity for reversible error, for to require a defendant wrongly denied immunity to endure a criminal prosecution is to violate the statutory injunction.”
The majority in Isaac accepts the Duncan position that “the Act does not explicitly provide a procedure for determining immunity.” It also acknowledges the dissent’s position that one purpose of the Act is to provide an immunity from prosecution. However, the majority rejects the dissent’s “extrapolation of a legislatively mandated immediate appeal from the denial of an immunity motion under the Act . . . [and asserts that] [t]he suggestion that such legislative intent is clear from the statutory language borders on frivolity.”
This rejection of the dissent’s position as frivolity indicates a view that the right to avoid prosecution, as opposed to conviction, is not very important to the majority. As the dissent notes, an appeal of the denial of the immunity is somewhat meaningless after prosecution has occurred. Moreover, the denial of an intermediate appeal is, in effect, the denial of any appeal concerning the immunity. More specifically, if the defendant is acquitted, there will be no appeal at all. On the other hand, where the immunity is denied and there is a conviction, the appeal is likely to focus on whether the record on appeal shows there is evidence to support a verdict of guilt beyond a reasonable doubt; this is an easier burden for the defendant on appeal than showing that the defendant had satisfied his burden at the pretrial hearing. Thus, the denial of immunity will almost certainly be irrelevant in an appeal of the conviction.
As a reason in defense of its interpretation of the statute, the majority argues that, if the dissent is correct, “we invite the General Assembly to amend the Act to reflect its intent to allow an immediate appeal in clear terms.” This is obviously a makeweight argument because it applies regardless of whether the court holds an immediate appeal is (or is not) permitted. It is also somewhat disingenuous concerning the difficulty of getting legislation adopted.
As a part of its justification for holding that a denial of immunity from prosecution is not a substantial matter and, therefore, not immediately appealable, Isaac notes:
The denial of a request for immunity under the Act is analogous the denial of a motion to dismiss a criminal case on the ground of double jeopardy, which is not immediately appealable . . . . Absent an unambiguous expression of legislative intent, we see no reason to alter settled law concerning appealability, which additionally would have the illogical effect of elevating a statutory immunity claim over one constitutionally based.
Isaac correctly states South Carolina law concerning double jeopardy. However, the analogy is questionable because the constitutional immunity from prosecution cannot be nullified by the South Carolina courts simply by denying immediate appeals of denials of the claim. More specifically, where South Carolina courts refuse to grant appellate review of a denial of a claim for immunity from prosecution under the double jeopardy clause, federal courts will allow a pretrial petition for habeas corpus and, where appropriate, grant the writ. See, e.g., Carter v. Medlock, 43 F.3d 1465 (table), 1994 WL 687 287 (4th Cir 1994).
It would be possible to interpret the Act as providing a lesser immunity than the double jeopardy immunity. However, that interpretation would have to stand on its own. It cannot rely on an analogy to the constitutional immunity, which is sufficiently important that an intermediate appeal must be granted.
Ironically, delayed appeal of a denial of double jeopardy could, unlike an appeal of a denial of the statutory immunity, have a meaningful effect. If an appellate court finds a denial of double jeopardy, it does not matter whether the prosecution has shown guilt beyond a reasonable doubt. The conviction would be reversed in any case.
Procedure at hearing. One effect of the lack of guidance in the Act concerning the procedure for determining whether a defendant is entitled to the immunity is uncertainty concerning the burden of proof. Duncan states that “the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.” Unfortunately, however, the court did not explicitly indicate whether this reference to the defendant’s burden of persuading the judge by a preponderance of the evidence also means that, instead of the normal order where the prosecution begins a criminal trial by presenting its case, the defendant has the initial burden of going forward with the evidence. If the defendant has that burden, the hearing will begin with the defendant’s presentation of evidence in support of the claim and the prosecution will then, if it chooses, present evidence challenging the claim. As indicated below, it is very important to know whether the prosecution’s case or the defendant’s case must start the pretrial hearing.
The court could also address the concern for allowing a defendant to postpone trial by using its supervisory powers to adopt a requirement that a request for an immunity hearing must be filed no later than, for example, ninety days before trial. In this way the problem arising in State v. Isaac (Isaac moved for a hearing at the beginning of trial.) could be avoided.
3. Questionable utility to most defendants
The statutory immunity will probably have little effect on the results in future cases like Duncan and Isaac. Given the holding in Duncan that the statutory presumption in the Act is conclusive, no solicitor is likely to prosecute in a similar fact situation. Because the Act is not retroactive, it did not apply to the defendant in Isaac, but, it is unlikely that a defendant in a similar situation would: (1) prevail at a pretrial hearing (Isaac was an intruder who had retreated to a point outside the victim’s apartment and who shot the victim even though he had not seen the victim draw a gun.); or, (2) as indicated below, request a hearing.
Because there is virtually no discovery in criminal proceedings, tactical decisions by the prosecution and the defense are likely to be determined by the order of proof at the pretrial hearing. If the prosecution is required to go first in the hearing, every defendant will choose to ask for an immunity hearing. If the prosecution has a strong case, the defendant will probably lose. Moreover, the defense may not even attempt rebuttal because: (1) the net result will be, in effect, one-sided discovery; and (2) it is better to focus on the actual trial where the prosecution has the burden of guilt beyond a reasonable doubt.
Because of the possibility of such a one-sided effect and because Duncan held that the defendant has the burden of showing the immunity by a preponderance of the evidence, it is likely that the defendant would go first at the pretrial hearing. Very few defendants will be so confident of prevailing at the immunity hearing that they are willing to show their defense to the prosecution prior to trial. This reluctance to assert the immunity will be increased because of Isaac, which effectively bars meaningful review of a denial of the immunity. Moreover, if a defendant has reason to be sufficiently confident about a pretrial hearing, there is also reason to think the solicitor may be less willing to go to trial at all.
In short, if the prosecution must start the immunity hearing, every defendant will want the hearing. However, if, as seems likely, the defendant must go first, most defendants will not claim the immunity.
For what it’s worth, my view is that a defendant is entitled to an immediate appeal of a denial of a claim for immunity. It does no good to be told after prosecution, “You are right; you were entitled to immunity.” At this point, there is no remedy for the erroneous denial. This result is clearly a case of “justice delayed is justice denied.”
Isaac is wrong about the proper basis for jurisdiction. (Though it does not matter, the dissent may also be wrong in granting an appeal on the basis of Section 14-3-330(4).) Immunity from prosecution is an important right. Therefore, it should be appealable under Section 14-3-330(3), which provides for interlocutory appeals of a “final order affecting a substantial right made in any special proceeding . . . .” This approach would require interlocutory appeals in South Carolina courts of denials of claims of double jeopardy, which is also a substantial right. However, as indicated above, the federal courts grant these anyway. In addition, the concern in Isaac for prompt administration of justice will not be frustrated by this approach because so few defendants will want to claim the hearing if they must go first in presenting evidence at the pretrial hearing.