COURTS LONG have held that people who feel threatened in their homes have a right to defend themselves with deadly force without first trying to flee, as they generally must do elsewhere. The Castle Doctrine (which gave rise to the common advice that anyone who shoots an intruder on the front steps had best drag the body inside before calling the police) derives from the belief that people should be allowed an extra level of safety and comfort in their own homes.
But in recent years the gun lobby, having become so powerful in states such as ours that it worked itself out of its traditional job, started dreaming up new laws not to protect the rights of gun owners but to expand them, far beyond what had been accepted since the Wild West was tamed. One such result was the stand-your-ground law that our General Assembly passed in 2006, and that 23 other states have passed before and since.
That law, which most people had never heard of until George Zimmerman escaped arrest after he shot and killed unarmed teenager Trayvon Martin in his Florida neighborhood, essentially takes the Castle Doctrine out onto the streets. Even when it would be an easy thing to flee, the law allows anyone to use deadly force to defend himself if he isn’t doing anything illegal, he feels threatened and he is in a “place where he has a right to be.”
In other words, it makes killing another human being the first line of defense rather than the second or third.
Which is insane.
This is not about self-defense. You kill someone in self-defense when you have no reasonable alternative.
It is not asking too much for people to avoid a deadly confrontation if they can do so without endangering themselves or others.
But as over-the-top as the stand-your-ground provision is, it never was the most dangerous thing about the 2006 law.
The most dangerous thing about the “Protection of Persons and Property Act” is its central purpose: It turns the traditional criminal equation on its head, transforming self-defense from a legal argument against conviction into a prohibition against prosecution.
As such, it greatly increases the likelihood that people can literally get away with murder.
Under the old law, people who claimed they killed an intruder in self-defense sometimes — though not often — were arrested anyway, and they had to convince a prosecutor or, failing that, a judge or jury that they acted in self-defense.
But the 2006 law says that anyone who feels threatened by an encounter not of his making “is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force.”
Immune from prosecution.
It doesn’t take a lot of imagination to see where this could lead — where it almost certainly has led: You get into an argument with a guest in your home. The disagreement escalates. You kill your guest. You claim your home was invaded. And you’re immune from prosecution.
That’s not my imagination. That’s the scenario laid by a Walterboro police captain after then-Attorney General Charlie Condon forced his department to drop the charges against a woman who stabbed her lover to death. Police were outraged when what they considered a domestic-violence case became the first example of Mr. Condon’s “open season” on home invaders policy, which prohibited prosecutors from bringing charges against anyone who killed an intruder.
That was 2001, and the police captain wondered: “Is that really where we want to go in this society?”
Publicity over the Lowcountry case forced Mr. Condon to back off of his policy, but in 2006, our Legislature decided this was indeed where it wanted to go, and wrote Mr. Condon’s old policy into our code of laws. Even though no one — not Mr. Condon, not the Legislature, no one — ever made a compelling case that we needed to transform self-defense from a legal argument into a bar to prosecution.
If homeowners who clearly acted in self-defense were routinely being charged and having to spend time in jail and pay lawyers to defend them, then some sort of change would have been worth considering. But even before this law, police routinely declined to bring charges in clear-cut cases of self-defense. Even when charges were brought, prosecutors frequently dropped them if the investigation showed the homeowner or victim of domestic violence or store owner or what-have-you acted in self-defense. The only cases that went to trial were the ones in which prosecutors had serious questions about the defendant’s claim of self-defense.
But under our law, it’s far less likely that those questions will even be asked — except in those extraordinarily high-profile cases like the one in Florida.
Our law doesn’t automatically mean that the killer won’t be arrested, though it does give overworked police far less incentive to make an arrest, or even to continue an investigation after someone claims self-defense. Indeed, the law didn’t even get tested in court until five years after it was passed.
In May, the state Supreme Court unanimously rejected the attorney general’s argument that a jury ought to be able to decide exactly what that immunity provision means, ruling that “the legislature intended to create a true immunity, and not simply an affirmative defense.”
Which seems pretty obvious when you read the statute.
The problem in that case wasn’t, as the attorney general argued, that the trial judge erred in dismissing murder charges in a pre-trial hearing, or even that the judge used a much lower standard of proof than is required in criminal trials.
The problem is the law itself, which says, essentially, that even if police and prosecutors do have questions about a self-defense claim, the answers don’t have to be particularly good.
It’s outrageous that we encourage people to kill anyone who makes them feel threatened, no matter where they are. It’s dangerous that we force prosecutors to take the killer’s word for it.
Ms. Scoppe can be reached at email@example.com or at (803) 771-8571.