The South Carolina Legislature has provided immunity from prosecution for anyone who uses deadly force in self-defense in a manner specifically allowed by law. See S.C. Code Ann. § 16-11-450. However, whether the use of deadly force is in a manner allowed by law is still the purview of the courts. In past cases, the Supreme Court has opined that the trial court’s decision regarding the lawfulness of deadly force is interlocutory and non-appealable. In layman’s terms, if the Court denies your claim of immunity, you cannot raise it on appeal until after close of the underlying trial. This in essence turns a claim of immunity into a high stakes game where plea bargaining is denied or severely curtailed.
When is the use of deadly force allowed?
This is the key question when evaluating a claim of self-defense and immunity from prosecution. Fortunately for all vigilant citizens, the Court continues to address and write upon this question when evaluating claims for immunity from prosecution. The most recent case is South Carolina v. Cervantes-Pavon. The underlying facts, for our purpose, can be distilled thus: Dennis Cervantes-Pavon was subjected to harassment by co-worker Raymond Muniz. Muniz attempted to instigate a fight on several occasions and was finally successful. During the fight, Cervantes-Pavon fatally stabbed Muniz with a sheetrock saw. The state charged Cervantes-Pavon with murder, and his claim of immunity from prosecution was denied by the trial court. On appeal, the South Carolina Supreme Court considered the arguments of both Cervantes-Pavon and the State.
Armed vs. Unarmed
In denying the request for immunity, the Circuit Court made particular note that “at the time the victim was stabbed the victim was not armed.” “The State argue[d] the fact that Muniz was unarmed when Cervantes-Pavon stabbed him is sufficient by itself to uphold the denial of immunity.” The reasoning of both the Circuit Court and the State was supported by a previous case, State v. Manning. In Manning the Supreme Court affirmed a denial of immunity where the victim was unarmed. The Supreme Court however differentiated the current case from Manning. Here, unlike in Manning, there was physical contact between the victim and the defendant. Further, both victim and defendant started the confrontation armed with metal pipes. (Said pipes were dropped before Cervantes-Pavon used the sheetrock saw to stab Muniz). The Court found these two factors, the physical nature of the altercation and the presence of weapons at the outset, important differences from Manning. The Supreme Court concluded that “while the fact a victim is unarmed is a relevant consideration under the Act, it does not automatically prohibit immunity.”
Aggressive vs. Defensive
The Circuit Court clearly noted “there must be an absence of aggression” for a claim of immunity to stand. As the Circuit Court reasoned, the “Act is for defensive not offensive protections.” The Supreme Court agreed “the circuit court correctly noted that a movant must demonstrate an absence of aggression.” This raises an important question: Is arming one’s self an act of aggression? The State pointed to Cervantes-Pavon’s arming of himself as a sign he was an aggressor. (“Cervantes-Pavon was the armed initial aggressor.”) The Supreme Court however lightly brushes this aside. “The fact a defendant armed himself does not, in and of itself, make him the aggressor in a given confrontation.” Citing State v. Jones. In fact, the Supreme Court went so far to state that “the record contains no evidence that Cervantes-Pavon initiated the fight.”
This case presents a very narrow view at a many faceted issue. By no means is this a definitive study in when and how to apply the immunity statute in an alleged self-defense case. However, we can learn several things from the case.
1. To legally use deadly force, you must not be the aggressor. “The act is for defensive not offensive protections.”
2. Arming yourself does not infer you are the aggressor. “The fact a defendant armed himself does not, in and of itself, make him the aggressor in a given confrontation.”
3. An unarmed assailant can still present an “imminent peril of death or great bodily injury.” “The fact a victim is unarmed . . . does not automatically prohibit immunity.”
To the average CWP holder, #2 is welcomed news. That you must be acting defensively is unsurprising, but remember that you cannot act offensively and then, upon being placed on the defensive use deadly force. The defensive position must be consistent throughout the encounter. The final point addressing how long must you wait to know a situation means “imminent peril of death or great bodily injury” to yourself is the most interesting. While we do not have a definitive answer, we do know that it does not necessarily require the presentation of a weapon by the assailant.
I hope this information is an interesting exercise in thought. I wish that you may never truly need it. If I can ever help you address a similar situation, do not hesitate to reach out.