What's new in SC gun law
Update: June 25, 2013
South Carolina Focuses on NICS Background Reporting
Update: July 30, 2012
Minor Improvements in the South Carolina Gun Law for 2012
Update: May 10, 2011
South Carolina Supreme Court Affirms Castle Doctrine Immunity from Criminal Prosecution for Lawful use of Gun in Self-Defense
Update: October 10, 2011
South Carolina Supreme Court Reverses Conviction for Self-Defense Shooting
Update: February 10, 2010
Guns in all Units of the National Park and National Wildlife Reserve System
Update: July 18, 2009.
SOME NEW RULES FOR SCHOOLS
Update: June 5, 2009
S. 593 – New Rules for Schools
Update: May 19, 2009
Carrying Near Schools
The Federal Gun Free Schools Act of 1996:
Update: April 22, 2009
SLED’s new application for Concealed Weapons Permit:
Update: April 19, 2009
A federal judge has suspended carry in National Parks
and National Wildlife Refuges:
UPDATE: August 23, 2009
KANSAS now recognizes South Carolina
NON-RESIDENT CWPs.
UPDATE - June 25, 2013
South Carolina Focuses on NICS Background Reporting
On May 3rd, South Carolina Governor Nikki Haley signed House Bill 3560 into law. The law does not immediately go into effect. Instead, it will become effective August 1, 2013. HB 3560 creates a requirement that individuals who have been placed under certain types of mental health-related orders by a court have their commitment order reported to the National Instant Criminal Background Check System (NICS).
Taking a step back, the NICS was mandated by the Clinton Era “Brady Act” in 1994. The law provided that the FBI and states coordinate to provide a working system of gin purchaser’s intake, cross-reference with existing criminal record data bases, and the a relatively fast return of the applicant’s eligibility to purchase a firearm to the dealer processing the sale. States could have their own operational arm of the system or they could defer to the FBI’s national system. It was not until late 1998 that the NICS system became operational.
Almost ten years after the NICS became operational, the massacre at Virginia Tech occurred. Following the investigation that ensued, it was discovered that the gunman was a person prohibited from possessing or purchasing a firearm. He was prohibited because he was adjudicated mentally defective by a court. However, when he went to purchase a firearm soon before the massacre, his application did not produce a “hit” when run through the NICS. The information about his adjudication never made it from the courthouse to the NICS databases.
In reaction to this failure, Congress passed, and President Bush signed, the NICS Improvements Amendments Act of 2007. That Act provided for grants to support local and state governments and courts’ reporting of adjudications to NICS. The Improvements Act was a “carrot” program as opposed to a “stick.” What I mean is that there were no mandates but, rather, incentives and guidelines. Local and state government agencies were encouraged to voluntarily comply. For whichever reason, whether political, fiscal or just not knowing about the grants, some state and local governments have been slow to participate.
Even before this law, the South Carolina Judicial Department had already made efforts to improve reporting prior to this bill. The Department in 2011 sent a representative to the regional NIAA meeting in Nashville to learn about grants and implementation of the Act. Similarly, in January 2013, the President, in reaction to the Sandy Hook massacre, issued an “Executive Action” in the form of a Memorandum. The Memorandum directed relevant federal agencies to review its practices and procedures and implement a plan to improve reporting to NICS.
So, what does this new South Carolina law do? First, no new firearms prohibitions have been created. If you were not prohibited from possessing or purchasing a firearm before, you are not prohibited now by any element of this law. This law does not expand or create new categories of prohibited persons.
In plain English, the law is South Carolina mandating upon itself the voluntary standards set forth in the NICS Improvement Amendments Act. Therefore, South Carolina agencies and courts must now, under state law, comply with the standards that were previously merely encouraged under the federal NIAA.
Is there relief for those with an adjudication that is required to be reported to NICS? The new law, following drafting guidelines set forth in the NIAA, allows a court to grant relief from a federal firearms prohibition and restore a person’s gun rights upon a finding that the petitioner will not be likely to act in a manner dangerous to public safety, and that the granting of the relief would not be contrary to the public interest.
UPDATE - July 30, 2012
Minor Improvements in the South Carolina Gun Law for 2012
While any improvement in gun law is very welcome news, the 2012 South Carolina Legislative session brought two relatively minor improvements for gun owners and possessors. The reason we consider them minor is that they do nothing to push back restrictions upon carry of firearms, whether with a Concealed Weapons Permit or not, by law abiding people.
The two amendments are as follows:
I. Firearms, purchase of rifles or shotguns, removal of contiguous state requirement
Section 23-31-10 is amended to read:
"Section 23-31-10. A resident of this State including a corporation or other business entity maintaining a place of business in this State, who may lawfully purchase and receive delivery of a rifle or shotgun in this State, may purchase a rifle or shotgun in another state and transport or receive it in this State; provided, that the sale meets the lawful requirements of each state, meets all lawful requirements of any federal statute, and is made by a licensed importer, licensed manufacturer, licensed dealer, or licensed collector."
Note that this applies to folks licensed to deal in firearms. The South Carolina law now mirrors federal law for this subject.
II. Repeal of Section 31-23-Article 3
Dealers can sell handguns made of previously prohibited metals
Among other things like wiping out some definitions, House Bill 4494 repeals the prohibition on selling certain handguns that do not meet the arbitrary 800 degree melting-point standard that we discussed in Chapter 2 of our book. That provision used to be in Section 23-31-180 of the South Carolina Code of Laws and made it unlawful for “dealers” in firearms to sell firearms made of certain metals.
s or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.
Further, the repeal eliminates the requirement for Federal Firearms License holders (FFLs) to be licensed with the state in order to sell handguns. Again, this amendment applies to dealers in firearms as opposed to private sellers. Be aware, however, that a private seller, even though not a dealer, still must comply with federal law when selling firearms.
UPDATE: May 10, 2011
South Carolina Supreme Court Affirms Castle Doctrine Immunity from Criminal Prosecution for Lawful use of Gun in Self-Defense
Yesterday, the South Carolina Supreme Court issued its first opinion on South Carolina’s Protection of Persons and Property Act. This act is discussed in our South Carolina Gun Law book under the self-Defense Chapter. Please read that chapter first to get a good grasp of the legal concepts of self-defense and “presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person.”
Because the actual Supreme Court decision is short, I am not going to write much of a synopsis here. The opinion is in plain English and pretty self-explanatory. The only “tricky” part might be towards the end where it talks about the trial Court’s standard of proof. In general, however, the non-lawyer should be able to read and understand the decision – especially after reading our chapter on self-defense.
In a nutshell though, the opinion follows the plain language of the Act. The Act says that South Carolina “recognizes that a person's home is his castle . . . ." Further, “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.”
According to the opinion, four people were in the home of the person who shot in self-defense: the shooter (Duncan), his girlfriend (Templeton), and another couple who did not reside on the premises. They were all in the home together for whatever reason and the shooter’s girlfriend Templeton displayed a picture of the shooter’s daughter in a cheerleading outfit. The man from the non-resident couple (Spicer), made inappropriate comments about the cheerleader/daughter and Duncan asked Spicer to leave.
Spicer did leave but came back several minutes later. Spicer was opening the screened porch door when Duncan exited the front door of the house onto the porch with a gun. Spicer then began advancing across the porch and Templeton was between Spicer and Duncan and was trying to get Spicer off the steps and leave. Spicer continued to force his way onto the porch. Templeton claimed Duncan pointed the gun at Spicer and fired. Spicer died from the gunshot wound.
The Greenville County Prosecutor filed criminal charges (presumably murder or manslaughter) against Duncan. Duncan’s attorney immediately filed a motion to dismiss the charges based upon the Act. The trial Court granted the motion to dismiss (meaning the prosecutor could not further prosecute the charges against Duncan) and the prosecutor appealed. The Supreme Court ruled that it was proper for the trial Court to dismiss the case immediately without any further proceedings.
While this is a very good opinion and true to the intention of the Defense of Persons and Property act, it should not be construed as a license to shoot people in your home absent a justifiable threat. The key facts here are that Templeton testified that Spicer continued to force his way onto the porch. Because Spicer continued to force his way onto the porch, Duncan was given the legal presumption of a “reasonable fear of imminent peril of death or great bodily injury to himself or another person.” Remember that the Spicer was not a resident of the premises and was not a law enforcement officer acting in the performance of his official duties.
Please re-read out chapter on self-defense and the opinion below for a good legal grounding on the law of self-defense in South Carolina. It is important for you to know self-defense law to protect you, your family, and law enforcement officers who identify themselves as such and are carrying out official duties.
As always, if you have any questions, feel free to email us using the “Contact Us” button on this website.
s or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.
Thank you, Steve Shaw
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Official S.C. Supreme Court Opinion Below: ↓
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- State v. Duncan
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Appellant,
v.
Gregory Kirk Duncan, Respondent.
Appeal from Greenville County
Edward W. Miller, Circuit Court Judge
Opinion No. 26974
Heard January 18, 2011 – Filed May 9, 2011
AFFIRMED
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka and Senior Assistant Attorney General S. Creighton Waters, of Columbia, and Solicitor Robert Mills Ariail, of Greenville, for Appellant.
Chief Appellate Defender Robert M. Dudek and Senior Appellate Defender Joseph L. Savitz, III, of South Carolina Commission on Indigent Defense, of Columbia, for Respondent.
JUSTICE PLEICONES: The State appeals the circuit court's grant of respondent's pre-trial motion to dismiss on the ground that respondent was entitled to immunity under the Protection of Persons and Property Act[1] (the Act). We affirm.
FACTS
Respondent was indicted for murder after he shot and killed Christopher Spicer (the victim) at respondent's home. Prior to trial, respondent moved to dismiss the indictment, arguing he was entitled to immunity under the Act. At a hearing on respondent's motion, the State introduced numerous pieces of evidence, including witness statements and testimony, photographs and video of the crime scene, 911 tapes, and the victim's autopsy report.
According to the statement and testimony of respondent's girlfriend, Jean Templeton, she, the victim, and the victim's girlfriend, Amanda Grubbs, were guests in respondent's house on the night of the shooting. At some point, Grubbs handed the victim a picture of respondent's daughter in a cheerleading outfit and the victim began making inappropriate comments about the picture. Respondent asked the victim and Grubbs to leave.
According to Templeton, the victim left but returned a few minutes later. The victim was opening the screened porch door when respondent exited the front door of the house onto the porch with the gun. At one point, the victim began advancing across the porch and Templeton was "between [the victim] and [respondent]" and was "trying to get [the victim] off the steps and leave." The victim continued to force his way onto the porch. Templeton claimed respondent pointed the gun at the victim and fired. The victim died as a result of the gunshot wound to the face.
After considering the evidence, the circuit court dismissed the indictment finding respondent was immune, under the Act, from prosecution.
ISSUES
I. Did the circuit court err in making a pre-trial determination of immunity?
II. Did the circuit court err in finding respondent was entitled to immunity under the Act?
ANALYSIS
I. Pre-trial determination of immunity
The State argues the circuit court erred in making a pre-trial determination of immunity.[2] We disagree.
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 . . . ." S.C. Code Ann. § 16-11-420(A) (Supp. 2010). The Act also states, "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." S.C. Code Ann. § 16-11-420(B) (Supp. 2010).
The Act further provides:
(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 immunity provision at issue provides:
(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).
The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). Unless there is something in the statute requiring a different interpretation, the words used in a statute must be given their ordinary meaning. Id. When a statute's terms are clear and unambiguous on their face, there is no room for statutory construction and a court must apply the statute according to its literal meaning. Sloan v. Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007).
Black's Law Dictionary defines "immune" as "having immunity" or being "exempt from a duty or liability." Black's Law Dictionary (9th ed. 2009). "Prosecution" is defined as "a criminal proceeding in which an accused person is tried." Id.
The trial court found the plain meaning of the immunity provision was to shield a person from a "full blown criminal trial." Accordingly, the trial court found the only way this statutorily granted right could be meaningfully enforced was for the defendant to be able to raise immunity in a pre-trial motion.
Whether immunity under the Act should be determined prior to trial is an issue of first impression in this state. Further, the Act does not explicitly provide a procedure for determining immunity. In deciding this matter, we find guidance from several other states that have addressed similar statutory immunity provisions.
In Fair v. State, the Supreme Court of Georgia held the trial court erred in refusing to rule on the defendants' immunity[3] prior to trial. Fair v. State, 284 Ga. 165, 166, 664 S.E.2d 227, 230 (Ga. 2008). Particularly, the Fair court found that by the plain meaning of "immune from prosecution," the statute must be construed to bar criminal proceedings against persons who used force under the circumstances set forth in the statute, and that this determination must be made before the trial commences. Id.
In the recent decision of Dennis v. State, 51 So.3d 456 (Fla. 2010), the Supreme Court of Florida approved the reasoning of Peterson v. Florida, 983 So.2d 27 (Fla.1st D.C.A. 2008), where the First District Court of Appeal found that by enacting a statute[4] similar to the Act at issue here, the legislature intended to establish a true immunity and not merely an affirmative defense. The Dennis court therefore found the plain language of the statute grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to a trial. Dennis, 51 So.3d at 462. The Dennis court concluded that, where a defendant files a motion to dismiss on the basis of Florida's "Stand Your Ground" statute, the trial court should conduct a pre-trial evidentiary hearing to decide the factual question of the applicability of the statutory immunity. Id.
Likewise, we find that, by using the words "immune from criminal prosecution," the legislature intended to create a true immunity, and not simply an affirmative defense. We also look to the language of the statute that 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." We agree with the circuit court that the legislature intended defendants be shielded from trial if they use deadly force as outlined under the Act. Immunity under the Act is therefore a bar to prosecution and, upon motion of either party, must be decided prior to trial. Accordingly, we find the trial court properly made a pre-trial determination of respondent's immunity.
II. Respondent's immunity under the Act
The State argues the circuit court erred in finding respondent was entitled to immunity under the Act. We disagree.
The circuit court found that, applying any standard of proof, respondent would be entitled to immunity under the Act.
The proper standard of proof in determining immunity under the Act is also a novel issue in this state. Other states have addressed this matter. In Dennis, the Florida Supreme Court rejected the State's argument that the pre-trial hearing on immunity should test merely whether the State has probable cause to believe the defendant's use of force was not legally justified. Dennis, 51 So.3d at 463. Specifically, the Dennis court found the grant of immunity from "criminal prosecution" under the statute "must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided to the defendant by rule." Id. Accordingly, the court found the procedure set out in Peterson, supra, best effectuated the intent of the legislature. The Peterson court held that when a defendant raises the question of statutory immunity pre-trial, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. Peterson, 983 So.2d at 29.
Likewise, we hold that when a party raises the question of statutory immunity prior to trial, the proper standard for the circuit court to use in determining immunity under the Act is a preponderance of the evidence.
Turning to the facts of this case, we find there is evidence to support the circuit court's finding that respondent was entitled to immunity. Templeton's testimony and statements showed that, at the time the victim was shot, she was between the victim and respondent, trying to remove the victim from the dwelling. The victim, however, continued to force his way onto the porch. We find respondent showed by a preponderance of the evidence that the victim was in the process of unlawfully and forcefully entering respondent's home in accordance with § 16-11-440. Accordingly, the circuit court properly found respondent was entitled to immunity under the Act.
We further find the circuit court's order of dismissal was proper because it found respondent was entitled to immunity under the Act under any standard of proof. In other words, had the circuit court held respondent to a stricter standard of proof, such as clear and convincing evidence or even proof beyond a reasonable doubt, the circuit court would have nonetheless found respondent was entitled to immunity.
CONCLUSION
We conclude a pre-trial determination of immunity under the Act using a preponderance of the evidence standard is proper and that respondent was entitled to immunity under the Act. Accordingly, the findings of the circuit court are
AFFIRMED.
TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.
[1] S.C. Code Ann. §§ 16-11-410 to 450 (Supp. 2010).
[2] We find an order granting or denying a motion to dismiss under the Act is immediately appealable, as it is in the nature of an injunction. See S.C. Code Ann. § 14-3-330(4) (Supp. 2010) ("The Supreme Court . . . shall review upon appeal . . . an interlocutory order or decree . . . granting, continuing, modifying, or refusing an injunction . . . .").
[3] The defendants argued they were immune from prosecution under OCGA § 16-3-24.2, which provides in relevant part that "[a] person who uses threat or force in accordance with Code Section . . . 16-3-23 or . . . 16-3-24 shall be immune from criminal prosecution . . . ."
[4] See F.S.A. § 776.032 (Supp. 2010).
UPDATE: October 10, 2011
South Carolina Supreme Court Reverses Conviction for Self-Defense Shooting
NOTE: Members of, and contributors to, Grassroots GunRights South Carolina played a vital role in funding the defense of Jason Dickey. Grassroots of SC, Inc. is currently under a court injunction as a result of the case (currently under appeal):
Clarence Edward Looney and Grover E, Lown, Jr. v. GrassRoots of SC, Inc., Ed Kelleher, Robert Butler and Robert Holliday. Lexington County Court of Common Pleas at CASE No. 2011-CP-32-1393
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The SC Supreme Court has thrown-out the voluntary manslaughter conviction of Jason Dickey, a Columbia apartment building security guard who shot and killed an attacker in 2004.
The Court opined that Dickey acted in self-defense in the shooting of 24-year-old Joshua Boot of West Columbia. Dickey has served five years of a 16-year sentence. The opinion indicates that Dickey was confronted by two younger and larger drunk men who were advancing toward him. Dickey said Boot didn't reside in the complex, refused Dickey’s order to leave, and then came back after him with a bottle. The full opinion from the SC Supreme Court Website is provided below.
This case and the Duncan case will be explained in much greater detail in the next edition of our book.
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THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Jason Michael Dickey, Petitioner.
ON WRIT OF CERTIORARI
Appeal from Richland County
James W. Johnson Jr., Circuit Court Judge
Opinion No. 27047
Heard March 2, 2011 – Filed September 26, 2011
REVERSED
Lourie A. Salley III, of Lexington, for Petitioner.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina J. Catoe, and Daniel E. Johnson, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: Jason Michael Dickey (Petitioner) appeals the court of appeals' decision affirming his conviction of voluntary manslaughter. State v. Dickey, 380 S.C. 384, 669 S.E.2d 917 (Ct. App. 2008). We find Petitioner was entitled to a directed verdict on the issue of self-defense. Therefore, we reverse.
FACTUAL/PROCEDURAL BACKGROUND
In April 2004, Petitioner was employed as a security guard at Cornell Arms apartments in Columbia, where he also resided. Although not required by his employer for his duties, Petitioner carried a loaded pistol, for which he held a valid concealed weapons permit.
On April 29, 2004, Joshua Boot and his friend, Alex Stroud, met Amanda McGarrigle and Tara West while tailgating at a Jimmy Buffet concert. After several hours of heavy drinking, Boot and Stroud accompanied McGarrigle and West, who were roommates, back to their apartment at Cornell Arms. Stroud testified Boot was "pretty intoxicated" and had consumed up to twenty beers and several shots of tequila throughout the day. As McGarrigle and Boot sat on the couch in her apartment, a neighbor threw a water balloon through an open window, splashing Boot. The water balloon tossing was part of an ongoing joke between neighbors. However, the prank so angered Boot that he threatened to physically assault the person who splashed him.[1] Fearful of trouble, McGarrigle asked Boot to leave the apartment, and Boot refused. He instead went to find the culprit, in what McGarrigle described as an aggressive, angry manner. Boot began banging on neighbors' doors, which prompted McGarrigle to go to the security desk, where Petitioner was on duty, and ask Petitioner to evict her guest. McGarrigle, Petitioner, and McGarrigle's friend, Morteza Safaie, whom she met along the way, searched for Boot on several floors and eventually found him back in her apartment. Boot stepped outside into the hall and Petitioner identified himself as the security guard on duty and asked Boot to leave. According to Safaie and McGarrigle, who were standing in the hallway, Boot responded by shouting expletives at Petitioner and telling him "he couldn't make him do anything," then re-entering the apartment and slamming the door. Petitioner knocked on the door and again asked Boot to leave, without making any threatening comments or gestures or raising his voice. Boot again slammed the door in Petitioner's face. According to Stroud, who, at this point, had come out of West's bedroom, stated that Boot was "awfully" angry and Petitioner seemed "pretty unhappy." While standing outside the door to the apartment, Petitioner called the Columbia police to report the disturbance, and then asked McGarrigle and Safaie to go downstairs to let the officers inside the building. Meanwhile, inside the apartment, Stroud attempted to calm Boot and eventually convinced him they should leave. West witnessed Boot tuck a liquor bottle in his shorts before he exited the apartment.[2]
As Boot and Stroud walked toward the elevator, Petitioner kept his distance and the parties did not exchange words. However, Stroud testified Boot and Petitioner were "staring each other down." Petitioner chose not to ride with Stroud and Boot in the elevator, instead opting to take the stairs. The silence continued in the lobby as Petitioner followed several feet behind the men while they walked toward the exit. Petitioner testified that he noticed a Crown Victoria pass by the lobby windows and thought the police had arrived. He stated he followed Boot and Stroud outside so he could inform the police of the direction they were walking. According to Stroud, Petitioner stood in the vicinity of the Cornell Arms doormat watching them silently as they walked toward Sumter Street. Kristy Ann Murphy witnessed the scene from a bench located in front of the Cornell Arms doorway. She testified that Petitioner asked the men to leave in an unthreatening manner, while Boot shouted obscenities at Petitioner. Stroud testified that the derogatory comments Boot made about Petitioner were directed to Stroud only. After walking halfway down the block, Stroud turned around first and asked Petitioner, "[W]hy the f--- [are you] following [us]." Stroud testified that Petitioner just stood there, making no gestures or comments. Boot and Stroud then turned and started walking towards Petitioner quickly. Petitioner testified Boot threatened to "whip [his] a--." Stroud testified he made at most two steps, while Boot took two or three big steps, placing Boot nearer to Petitioner than Stroud. Stroud testified further that as Boot advanced toward Petitioner, he was in the mood to fight and planned to harm Petitioner. Petitioner, in turn, testified the two men were covering ground very quickly and if he turned his back he was afraid of being attacked from behind with no way to defend himself.[3] When Boot was approximately fifteen feet away, Petitioner pulled a gun from his pocket. Petitioner testified he pulled the gun to discourage the two men from attacking him. Stroud took a few steps back at the sight of the gun, but Boot continued to advance toward Petitioner in an aggressive manner. Petitioner testified he saw Boot reach under his shirt as he continued forward, and Petitioner feared he was reaching for a weapon.[4] Without warning, Petitioner fired a shot, striking Boot. After the first shot, Boot took another step toward Petitioner. Petitioner's second shot stopped Boot. Petitioner then fired a third shot as Boot dropped to his knees. Petitioner immediately put the gun back in his pocket and called 911.
The first officer to arrive at the scene heard the three shots. As soon as the officer exited his vehicle, Petitioner stated, "I shot him, I am security for the building. I have a concealed weapons permit, and the gun is in my right front pants pocket. I didn't have a choice. He came at me with a bottle." Investigators found a broken liquor bottle at the scene with a blood smear on the neck of the bottle matching Boot's DNA. According to the State's expert witness, smearing can occur when someone picks up an object or brushes against something.
Subsequently, a Richland County grand jury indicted Petitioner for murder. At the beginning of Petitioner's September 2006 trial, his counsel moved for the dismissal of Petitioner's murder charge pursuant to the recent enactment of the "Protection of Persons and Property Act," which codified the common law Castle Doctrine. S.C. Code Ann. § 16-11-410 (Supp. 2010). The circuit judge denied the motion, finding the Act did not apply to pending criminal cases. Petitioner's counsel twice moved for a directed verdict of acquittal on the ground that Petitioner was acting in self-defense when he shot Boot. The circuit judge denied both motions.
The circuit judge charged the jury on the crimes of murder and voluntary manslaughter, and on the affirmative defense of self-defense. Petitioner's counsel objected to the voluntary manslaughter charge, arguing there was no evidence to support this charge. Petitioner's counsel additionally challenged that the judge's self-defense instructions were inadequate. The circuit judge denied these motions, and the jury convicted Petitioner of committing voluntary manslaughter. The circuit judge sentenced Petitioner to sixteen years' imprisonment. The court of appeals affirmed. Dickey, 380 S.C. at 384, 669 S.E.2d at 917. Specifically, the court held the circuit judge: (1) properly denied Petitioner's motion for acquittal on the ground of self-defense; (2) sufficiently instructed the jury on the law of self-defense; (3) correctly submitted the charge of voluntary manslaughter to the jury; (4) adequately instructed the jury regarding the charge of voluntary manslaughter; and (5) properly refused to retroactively apply the "Protection of Persons and Property Act" to Petitioner's case. This Court granted Petitioner's petition for a writ of certiorari. Petitioner appeals all of the grounds upon which the court of appeals affirmed his conviction. Finding Petitioner was entitled to a directed verdict of acquittal on the ground of self-defense, we reach that issue only. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (appellate court need not address remaining issues when disposition of prior issue is dispositive).
STANDARD OF REVIEW
In criminal cases, the appellate court only reviews errors of law and is clearly bound by the trial court's factual findings unless the findings are clearly erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).
ANALYSIS
"A defendant is entitled to a directed verdict when the state fails to produce evidence of the offense charged." State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). If there is any direct or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the appellate court must find the case was properly submitted to the jury." Id. at 292–93, 25 S.E.2d at 648. However, when a defendant claims self-defense, the State is required to disprove the elements of self-defense beyond a reasonable doubt. Wiggins, 330 S.C. at 544–45, 500 S.E.2d at 492–93. We find the State did not carry that burden.
A person is justified in using deadly force in self-defense when:
(1) The defendant was without fault in bringing on the difficulty;
(2) The defendant . . . actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger;
(3) If the defense is based upon the defendant's actual belief of imminent danger, a reasonable prudent man of ordinary firmness and courage would have entertained the same belief . . . ; and
(4) The defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance.
Id. at 330 S.C. at 545, 500 S.E.2d at 493 (citing State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984)).
A. Fault in Bringing about the Harm
South Carolina recognizes a business proprietor's right to eject a trespasser from his premises. State v. Brooks, 252 S.C. 504, 510, 167 S.E.2d 307, 310 (1969) (citing State v. Rogers, 130 S.C. 426, 126 S.E. 329 (1925)). If the proprietor is "engaged in the legitimate exercise in good faith of his right to eject, he would in such case be without fault in bringing on the difficulty, and would not be bound to retreat." Id. (citing Rogers, 130 S.C. at 426, 126 S.E. at 329)). Therefore, to withstand a motion for directed verdict as to whether Petitioner, an agent of Cornell Arms, was at fault in bringing about the harm, the State had to disprove Petitioner's claim that he was ejecting Boot in good faith. Even viewing the facts in a light most favorable to the State, the State did not carry this burden.
The court of appeals stated that a jury could have reasonably found Petitioner's decision to exit the building "and brandish his loaded gun . . . was an act reasonably calculated to provoke a new altercation with Boot . . . ." However, the testimony is consistent that Petitioner was not brandishing[5] his gun when they were outside, but rather, he pulled the gun from its holster when Boot and Stroud turned and began advancing toward him in an aggressive manner. The State did not produce any evidence to contradict Petitioner's testimony he routinely carried the concealed weapon, and did not deliberately arm himself in anticipation of a conflict that evening. The record establishes Petitioner did not know Boot prior to his attempt to eject him and only did so in his capacity as a security guard, and upon request of a tenant. It is undisputed that Petitioner called the police before ejecting Boot and Stroud, and then immediately called 911 after firing the shots. Petitioner's stated reason for walking outside was to inform the police, whom he thought had arrived, of the direction Boot and Stroud were walking. The State did not rebut Petitioner's stated reason for his exit and, in fact, the only evidence the State offered to prove Petitioner's fault in bringing about the harm was the act of following Boot and Stroud outside. As Petitioner had the right to eject the trespassers from the premises, his decision to exit the building and stand on the doormat to ensure their departure cannot, in and of itself, be construed as acting in bad faith. Had Petitioner accompanied the ejection with threatening words or posture, a jury question may have arisen. See State v. Wiggins, 330 S.C. at 547, 500 S.E.2d at 494 (testimony that appellant threatened to "kick both [victim's and sister's] a--es" raised a jury question as to whether appellant was exercising good faith in ejecting victim). However, under these facts, we find Petitioner was exercising his right to eject trespassers in good faith and, as a matter of law, he was without fault in bringing about the difficulty.
B. Subjective and Objective Belief of Imminent Danger
We find that even the testimony most adverse to the defense, Stroud's testimony, established as a matter of law that Petitioner actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, and that a reasonable person of ordinary firmness would have entertained the same belief. "[W]ords accompanied by hostile acts may, depending on the circumstances, establish a plea of self-defense." State v. Fuller, 297 S.C. 440, 444, 377 S.E.2d 328, 331 (1989) (quoting State v. Harvey, 220 S.C. 506, 68 S.E.2d 409 (1951)). We believe such circumstances were present in this case. It is uncontroverted that Boot was highly intoxicated, acted aggressively over the course of the conflict, that he began advancing toward Petitioner quickly with the purpose of assaulting him, that he continued advancing toward Petitioner after Petitioner pulled the gun, and there was great disparity in the physical stature and capabilities of Boot and Petitioner. Furthermore, the State did not rebut Petitioner's testimony that he saw Boot reach under his shirt as he advanced. To the contrary, West testified she saw Boot place a bottle in his shorts as he left the apartment, and a broken bottle was found on the scene with Boot's blood smear on the neck.[6] Petitioner testified he did not see what Boot was reaching for when he fired the shots, but because Boot continued advancing after seeing the gun, Petitioner believed he was reaching for a deadly weapon. A person has the right to act on appearances, even if the person's belief is ultimately mistaken. State v. Fuller, 297 S.C. 440, 443–44, 377 S.E.2d 328, 331 (1989). "Once the right to fire in self-defense arises, a defendant is not required to wait until his adversary is on equal terms or until he has fired or aimed his weapon in order to act." State v. Starnes, 340 S.C. 312, 322, 531 S.E.2d 907, 913 (2000) (citing State v. Hendrix, 270 S.C. 653, 244 S.E.2d 503 (1978)). There is uncontroverted testimony that Petitioner acted upon the appearance that Boot had a deadly weapon.
Petitioner testified that, under the circumstances and appearances, he believed he was in actual danger of death or serious bodily harm. We find it reasonable that Petitioner made such an assumption and that a person of Petitioner's stature and limited agility would entertain the same fear when faced with an attack by a belligerent, intoxicated, more agile, and younger male, who appeared to be reaching for a weapon. The State certainly did not rebut these elements of self-defense beyond a reasonable doubt, as the law requires. Therefore, we find that as a matter of law, Petitioner actually believed he was in imminent danger of losing his life, or sustaining serious bodily injury, and that a reasonable person would have entertained the same belief.
C. Duty to Retreat
A defendant is not required to retreat if he has "no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in [the] particular instance." Wiggins, 330 S.C. at 545, 500 S.E.2d at 493 The court of appeals found "the State provided evidence that, if believed, tended to show Petitioner had other probable means of avoiding the danger than acting as he did." However, the court never specified what evidence it relied on to support that finding. Instead, it focused on whether or not Petitioner was absolved of his duty to retreat under the Castle Doctrine. We do not think it necessary to determine whether curtilage can extend to a public sidewalk, because we find the State failed to disprove beyond a reasonable doubt that Petitioner had no other probable means of avoiding the danger.
As discussed previously, Petitioner was not at fault in bringing about the harm by exiting the building. Once outside, Petitioner was faced with a situation where two younger, intoxicated, and physically superior men were advancing toward him, one with the clear intent to assault him and who was undeterred at the sight of Petitioner's gun. Moreover, the State did not disprove Petitioner's testimony that Boot reached for something under his shirt as he continued toward Petitioner. The testimony is consistent that Boot moved toward Petitioner at a fast pace. Had Petitioner turned his back, he would have likely been attacked from behind as he tried to get through the first set of glass doors. Even if he were able to pass through the first set of doors unscathed, he would likely have been trapped in the breezeway behind the second set of locked doors. Petitioner was classified as permanently disabled and testified that he could not run. Therefore, the uncontroverted facts establish as a matter of law that Petitioner had no other probable means of avoiding the danger other than to act as he did.
CONCLUSION
For the reasons set forth above, we find the State failed to disprove the elements of self-defense beyond a reasonable doubt. Even viewing the facts in a light most favorable to the State, the evidence establishes that Petitioner shot and killed Boot in self-defense. Therefore, we reverse the court of appeals and overturn Petitioner's conviction.
REVERSED.
KITTREDGE and HEARN, JJ., concur. PLEICONES, J., concurring in a separate opinion. BEATTY, J., dissenting in a separate opinion.
JUSTICE PLEICONES: I concur, but would reverse on the ground the Court of Appeals erred in upholding the trial judge's decision to charge voluntary manslaughter. Moreover, were I to reach the issues, I would find reversible error in the unconstitutional jury charge on the facts, and I would find that while the evidence established the first three elements of self-defense as a matter of law, there was a jury issue whether petitioner was in the building's curtilage such that he had no duty to retreat. See e.g., State v. Brooks, 252 S.C. 504, 167 S.E.2d 307 (1969).
In my opinion, the dispositive issue here is that of the voluntary manslaughter charge. Taking the evidence in the light most favorable to the State, it shows that at the request of a tenant, petitioner located the combative, intoxicated victim and asked him to leave. Petitioner endured the victim's obscenities, insults, and threats of physical violence calmly, and called the local police to report the incident. As the man began to leave the building, petitioner chose not to enter the elevator with him but instead took the stairway. Petitioner then followed the victim and his companion as they exited the building. As one would expect from a security guard who had just escorted such an individual off the premises, petitioner stood outside the building to make sure the men actually left the area. Compare State v. Brooks, supra (right to eject patron from business includes following patron outside).
When the victim and his friend turned and approached petitioner, petitioner felt "afraid" and "outnumbered," then shot the victim.
In my view, there is no evidence that petitioner was so angry and fearful that he lost control, and was rendered incapable of cool reflection. Instead, the evidence reflects that petitioner retained his composure despite the threats and language directed at him by the victim, and only shot when the victim and his friend turned back and approached petitioner outside the building whose occupants he was paid to guard. After the shooting, petitioner again called 911, and reported the events. I simply see no evidence of fear manifesting itself in an uncontrollable impulse to do violence. In my view, the only evidence is that petitioner, admittedly acting out of fear, nonetheless acted in a deliberate, controlled manner. As such, he could not, as a matter of law, be guilty of voluntary manslaughter. State v. Starnes, 388 S.C. 590, 698 S.E.2d 604 (2010).
I concur in the decision to reverse.
JUSTICE BEATTY: For reasons that will be discussed, I dissent as I would affirm the decision of the Court of Appeals and, in turn, Dickey's conviction for voluntary manslaughter.
In challenging the decision of the Court of Appeals, Dickey raises seven issues. In response to the divergent views of this Court, I have consolidated the issues under the following two headings: (1) self-defense, which, if found as matter of law, would be dispositive as to the charge of murder; and (2) voluntary manslaughter, a lesser-included offense of murder.
I. Self-Defense
A. Motion for a Directed Verdict of Acquittal
Dickey contends the Court of Appeals erred in finding the trial judge properly refused to direct a verdict of acquittal based on self-defense. In conjunction with his self-defense arguments, Dickey claims the Court of Appeals erred in failing to address whether a glass bottle should be considered a deadly weapon under South Carolina law as Dickey believed Boot was armed with a large glass bottle that could have been used to inflict serious bodily harm or death.
"A defendant is entitled to a directed verdict when the [S]tate fails to produce evidence of the offense charged." State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the appellate court must find the case was properly submitted to the jury. Id. at 292-93, 625 S.E.2d at 648. "When reviewing a denial of a directed verdict, this Court views the evidence and all reasonable inferences in the light most favorable to the [S]tate." Id. at 292, 625 S.E.2d at 648.
Once raised by the defense, the State must disprove self-defense beyond a reasonable doubt. State v. Burkhart, 350 S.C. 252, 261, 565 S.E.2d 298, 303 (2002). There are four elements required by law to establish a case of self-defense. State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984). The four elements are:
First, the defendant must be without fault in bringing on the difficulty. Second, the defendant must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger. Third, if his defense is based upon his belief of imminent danger, a reasonably prudent man of ordinary firmness and courage would have entertained the same belief. If the defendant actually was in imminent danger, the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike the fatal blow in order to save himself from serious bodily harm or losing his own life. Fourth, the defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance. If, however, the defendant was on his own premises he had no duty to retreat before acting in self-defense.
Id.; State v. Hendrix, 270 S.C. 653, 657-58, 244 S.E.2d 503, 505-06 (1978).
Under the Castle Doctrine, "[o]ne attacked, without fault on his part, on his own premises, has the right, in establishing his plea of self-defense, to claim immunity from the law of retreat, which ordinarily is an essential element of that defense." State v. Gordon, 128 S.C. 422, 425, 122 S.E. 501, 502 (1924). Our appellate courts have recognized that the rule also applies to a person's place of business. Id.; State v. Brooks, 252 S.C. 504, 167 S.E.2d 307 (1969). The absence of a duty to retreat also extends to the curtilage of one's home or place of business. State v. Wiggins, 330 S.C. 538, 548 n.15, 500 S.E.2d 489, 494 n.15 (1998). Curtilage includes outbuildings, the yard around a dwelling, a garden of the dwelling, or the parking lot of a business. Id.
Applying the foregoing to the facts of the instant case, I find that all four elements of self-defense were not established as a matter of law to warrant a directed verdict. As to the first element of self-defense, a question of fact was created as to whether Dickey was without fault in bringing on the conflict. The State presented undisputed evidence that Dickey followed Boot and Stroud after they left the apartment building. Because Dickey could have remained inside behind the safety of the locked doors to wait for the police, there is evidence that Dickey could have avoided the fatal confrontation.
I disagree, however, with the Court of Appeals' finding that Dickey's actions were "reasonably calculated to provoke a new altercation with Boot, and that Dickey intended to engage in mutual combat." Dickey, 380 S.C. at 394, 669 S.E.2d at 923.
First, this ground was neither raised to the trial judge nor submitted to the jury. Secondly, the Court of Appeals appears to have found that mutual combat was established as a matter of law, which would have precluded Dickey's reliance on self-defense. See State v. Taylor, 356 S.C. 227, 232, 589 S.E.2d 1, 3 (2003) ("Whether or not mutual combat exists is significant because the plea of self-defense is not available to one who kills another in mutual combat." (citation omitted)); State v. Graham, 260 S.C. 449, 450, 196 S.E.2d 495, 495 (1973) ("To constitute mutual combat there must exist a mutual intent and willingness to fight and this intent may be manifested by the acts and conduct of the parties and the circumstances attending and leading up to the combat." (citation omitted)). In contrast to the Court of Appeals, I find there was a question of fact as to the requisite intent for the doctrine of mutual combat; thus, mutual combat could have been submitted to the jury. Accordingly, I believe the Court of Appeals' reference to this doctrine was harmless as it did not negate the court's correct finding regarding the first element of self-defense.
In terms of the second and third elements, i.e., Dickey's belief that he was in imminent danger of losing his life or sustaining serious bodily injury, the State presented evidence to create a question of fact as to the "reasonableness" of Dickey's belief that he needed to shoot Boot.
First, the evidence was disputed as to whether Boot was in possession of a deadly weapon and whether he was reaching for one prior to the shooting. Although there is case law to support Dickey's assertion that the glass bottle constituted a deadly weapon, I note that this issue was neither raised to nor ruled upon by the trial judge. Thus, it was not properly preserved for appellate review. See State v. Moore, 357 S.C. 458, 464, 593 S.E.2d 608, 612 (2004) (holding an issue must be raised to and ruled upon by the trial court to be preserved for review).
Even assuming the issue was preserved and the Court of Appeals erred in failing to rule on it, it is inconsequential whether the bottle constituted a deadly weapon as a matter of law. Moreover, the jury was specifically instructed that "a deadly weapon is any article, instrument or substance that is likely to cause death or great bodily harm." Furthermore, the State presented evidence that Dickey did not consider himself in imminent danger as Dickey readily exited the locked building and continued the confrontation outside of the apartment building.
As to the fourth element, the "duty to retreat," I find the State presented evidence that Dickey was not immune as a matter of law under the Castle Doctrine as Dickey was not within the curtilage of the apartment building at the time of the shooting. At the time of the shooting, Dickey was on the doormat outside the front door of Cornell Arms. According to the testimony, the doormat was placed near the front of the building on a public sidewalk. As recognized by the Court of Appeals, it is a novel issue in this state as to whether a public sidewalk in front of an apartment building is considered curtilage. Dickey, 380 S.C. at 395, 669 S.E.2d at 924. In ruling that the public sidewalk did not constitute curtilage, the Court of Appeals relied on our state's jurisprudence establishing that curtilage does not extend to a public street. The Court of Appeals also cited cases from other jurisdictions where appellate courts "refused to hold there is no duty to retreat from a sidewalk in front of a business or residence." Id. at 396-97, 669 S.E.2d at 924.
For several reasons, I agree with the decision of the Court of Appeals. Initially, I would note that the court properly relied on this state's case law discussing curtilage with respect to public streets. The underlying theory in these cases is that a defendant is not immune from the duty to retreat on property where he did not have the right to eject his adversary. A public sidewalk falls within this category as it constitutes public land from which a person could not eject another person. Furthermore, the out-of-state cases cited by the Court of Appeals as well as other secondary authority support this proposition. See Jeffrey F. Ghent, Annotation, Homicide: Duty to Retreat as Condition of Self-Defense When One is Attacked at His Office, or Place of Business or Employment, 41 A.L.R.3d 584 (1972 & Supp. 2011) (analyzing the doctrine of retreat within the general rules of self-defense and discussing state cases where courts have considered where a person attacked at his office or place of business is precluded from relying on his right to self-defense by a duty of retreat). Moreover, regardless of the position of the Cornell Arms doormat,[7] Dickey was on the public sidewalk at the time he shot Boot. Once Dickey left the building and walked onto the public sidewalk, he was under a duty to retreat as the sidewalk was not part of the curtilage of his residence or business.
Furthermore, there is undisputed, quantifiable evidence that Dickey could have easily retreated without incident. The circumstances just prior to the shooting establish that Dickey was aware of the potential threat and had sufficient time to retreat. Dickey testified that he watched Boot and Stroud walk to the corner of Pendleton and Sumter Street before they turned around. At that point, according to crime scene investigators, Boot and Stroud would have been approximately 68 feet from the Cornell Arms doormat on which Dickey stood. Dickey testified that as Boot and Stroud came back in his direction they continued their profane rant and threatened to "whip [his] a--." Once Dickey realized that Boot and Stroud were heading back in his direction in a menacing manner, it would have been reasonable for Dickey to retreat. Thus, without question, Dickey had a duty to retreat; however, the question is whether Dickey could do so safely. This question was one for the jury to resolve.
Additionally, I find disingenuous the majority's reliance on Dickey's claimed disability as support for its holding regarding self-defense. Although Dickey testified he could not run as a result of this disability, there is evidence to the contrary in that he was able to descend several flights of stairs to the lobby in the same time it took Boot and Stroud to ride the elevator.
In view of the foregoing, I agree with the Court of Appeals that Dickey was not entitled to a directed verdict based on his claim of self-defense.
B. Application of "Stand Your Ground" Law
In conjunction with his "duty to retreat" challenges, Dickey argues the Court of Appeals erred in finding the trial judge properly refused to retroactively apply the "Stand Your Ground" law to this case.
Although Dickey refers to the Act as the "Stand Your Ground" law, it is identified in the South Carolina Code as the "Protection of Persons and Property Act." S.C. Code Ann. § 16-11-410 (Supp. 2010). This Act states, "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 and to extend the doctrine to include an occupied vehicle and the person's place of business." Id. § 16-11-420(A). The Act became effective on June 9, 2006, and contained a "Savings Clause," which provides in pertinent part:
The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.
Act No. 379, 2006 S.C. Acts 2909.
Because this Act was promulgated prior to Dickey's September 2006 trial, defense counsel moved for the trial judge to dismiss Dickey's case based on the "immunity from criminal prosecution" created by the Act. The trial judge denied the motion, finding the Act did not apply as Dickey's case had been pending since April 2004 and, thus, was precluded from the Act's application.
The Court of Appeals held the trial judge properly refused to apply the Act retroactively. In so ruling, the court found the Act creates substantive rights for citizens and, therefore, the Act would only operate retroactively if there was a clear indication from the Legislature that this was intended. Dickey, 380 S.C. at 404-05, 669 S.E.2d at 928. Referencing the Act's savings clause, the court concluded that "the Legislature clearly manifested its intent that the Act be applied prospectively." Id. at 405, 669 S.E.2d at 928. Accordingly, the court held the Act should not have been applied to Dickey's case as the criminal prosecution was pending before the effective date of the Act. Id.
I find the Court of Appeals properly affirmed the trial judge's decision to preclude the application of the Act as the Legislature's intent is clear and unambiguous that the Act is to be applied prospectively. See State v. Varner, 310 S.C. 264, 266, 423 S.E.2d 133, 134 (1992) (recognizing that prospective application is presumed absent a specific provision or clear legislative intent to the contrary). In any event, the evidence presented clearly showed that Dickey was not in his home, business, or vehicle at the time of the shooting.
C. Sufficiency of Self-Defense Jury Instructions
Finding the trial judge properly submitted self-defense to the jury, I now assess the sufficiency of the judge's jury instructions.
(1) "Right to Act on Appearances"
In challenging the judge's instructions, Dickey argues the Court of Appeals erred in finding the instruction on the right to act on appearances was adequate "where the instruction did not explain the proper test, which is especially critical where Dickey could see Boot reaching under his shirt." Additionally, Dickey asserts the Court of Appeals "failed to recognize that the right to act on appearances is a separate issue from the second and third elements of self-defense regarding actual danger and reasonable belief of danger."
As an initial matter, I believe Dickey is barred from raising certain arguments to this Court as they were not presented to the trial judge or the Court of Appeals. See State v. Haselden, 353 S.C. 190, 196, 577 S.E.2d 445, 448 (2003) (holding a defendant may not argue one ground at trial and another on appeal).
At trial, Dickey's counsel submitted two requests to charge on the right to act on appearances. Although the trial judge instructed the jury on the right to act on appearances, he did not use the specific language requested by Dickey.[8] On appeal, Dickey generally argued that the trial judge "erred by refusing to adequately charge on appearances." Accordingly, I confine my review of this issue solely to a determination of whether the trial judge's instruction on the right to act on appearances adequately covered Dickey's requests to charge.
To warrant reversal, a trial judge's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant. Burkhart, 350 S.C. at 263, 565 S.E.2d at 304. "Failure to give requested jury instructions is not prejudicial error where the instructions given afford the proper test for determining the issues." Id. An appellate court will not reverse the trial judge's decision regarding a jury charge absent an abuse of discretion. State v. Pittman, 373 S.C. 527, 570, 647 S.E.2d 144, 166 (2007).
Turning to the facts of the instant case, I agree with the decision of the Court of Appeals that the trial judge sufficiently instructed the jury on the right to act on appearances as the instruction essentially "tracked" the language of this Court's opinion in State v. Jackson, 227 S.C. 271, 278, 87 S.E.2d 681, 684 (1955).[9] Notably, Dickey cited Jackson in support of his two requests. Given the judge's instruction covered the substance of Dickey's requests, the judge's failure to charge the requests did not constitute reversible error.
(2) "Curtilage/Duty to Retreat"
Dickey asserts the Court of Appeals erred in finding the trial judge correctly refused to instruct the jury on curtilage. In support of this assertion, Dickey claims the Court of Appeals erred in holding that "the duty to retreat was adequately charged based solely on its conclusion that the public sidewalk was not curtilage."
At trial, Dickey's counsel requested the following instruction on curtilage:
The absence of a duty to retreat extends to the curtilage of the dwelling or place of business. The curtilage is the area of land adjoining a dwelling or business, which includes porches, outbuildings, yards, gardens and parking lots.
Although the trial judge declined this instruction, he charged the jury on the duty to retreat:
I would charge you that if a defendant is on his own premises or if a defendant is on his own place of business that the defendant had no duty to retreat before acting in self-defense.
As previously discussed, I agree with the Court of Appeals' ruling that Dickey was not within the curtilage of the apartment building as he was on a public sidewalk at the time of the shooting. Even if curtilage should have been charged, I find Dickey's request to charge was an incorrect statement of law. The charge expanded this state's definition of curtilage by adding the phrase "the area of land adjoining a dwelling or business." See Wiggins, 330 S.C. at 548 n.15, 500 S.E.2d at 494 n.15 (defining curtilage to include outbuildings, the yard around a dwelling, a garden of the dwelling, or the parking lot of a business); cf. State v. Brooks, 79 S.C. 144, 149, 60 S.E. 518, 520 (1908) (stating that "one on his land, adjoining a public road, if assaulted by another who is on such road, is bound to retreat before taking the life of his adversary if there is probability of his being able to escape without losing his life or suffering grievous bodily harm" given "he would not have had the right to eject his adversary from the place where he had a right to be").
Accordingly, I believe the Court of Appeals correctly found that self-defense was properly submitted to the jury and the trial judge sufficiently charged the requisite elements.
II. Voluntary Manslaughter
In view of my conclusion that Dickey was not entitled to a directed verdict of acquittal based on self-defense and the instructions regarding self-defense do not warrant reversal, the question becomes whether the trial judge erred in submitting the lesser-included offense of voluntary manslaughter to the jury or committed error in the substance of the jury instructions.
A. Submission of Voluntary Manslaughter to the Jury
Dickey asserts the Court of Appeals erred in "failing to reconcile that fear can constitute heat of passion under Wiggins with self-defense as a matter of law under Hendrix." In support of this assertion, Dickey claims the fear required for voluntary manslaughter "must be considerably greater in degree or kind than the rational fear" required for self-defense. Specifically, Dickey bs or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.elieves that "it must be an irrational fear that causes a person to lose control of himself temporarily." He further contends the Court of Appeals erred in finding there was "ample evidence" of heat of passion to support a charge of voluntary manslaughter. Essentially, Dickey avers the evidence supports a finding that "he either shot with malice or in self-defense"; therefore, the jury should not have been instructed on voluntary manslaughter.
"Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation." Pittman, 373 S.C. at 572, 647 S.E.2d at 167 (citation omitted). "Heat of passion alone will not suffice to reduce murder to voluntary manslaughter." Id. "Both heat of passion and sufficient legal provocation must be present at the time of the killing." Id. "The sudden heat of passion, upon sufficient legal provocation, which mitigates a felonious killing to manslaughter, while it need not dethrone reason entirely, or shut out knowledge and volition, must be such as would naturally disturb the sway of reason, and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called an uncontrollable impulse to do violence." Id.
"To warrant the court in eliminating the offense of manslaughter it should very clearly appear that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter." Id. at 572, 647 S.E.2d at 168 (citation omitted). "In determining whether the act which caused death was impelled by heat of passion or by malice, all the surrounding circumstances and conditions are to be taken into consideration, including previous relations and conditions connected with the tragedy, as well as those existing at the time of the killing." State v. Norris, 253 S.C. 31, 35, 168 S.E.2d 564, 566 (1969).
After the Court of Appeals issued its decision as to Dickey's case, this Court clarified the law with respect to whether fear can constitute sudden heat of passion. State v. Starnes, 388 S.C. 590, 698 S.E.2d 604 (2010), cert. denied, 131 S. Ct. 1504 (2011).
In Starnes, the defendant appealed his two murder convictions arguing, in part, that the trial judge erred in failing to charge the jury on the law of voluntary manslaughter. Id. at 596, 698 S.E.2d at 607-08. Starnes claimed he was entitled to the charge as he testified that when one of the victims pointed a gun at him, he felt threatened and was in fear; thus, the threat of imminent deadly assault was sufficient to submit the charge of voluntary manslaughter to the jury. Id. at 596, 698 S.E.2d at 608.
Although the Court found the trial judge properly refused to charge voluntary manslaughter, it clarified the law concerning "how a defendant's fear following an attack or a threatening act relates to voluntary manslaughter." Id. at 597, 698 S.E.2d at 608. Specifically, the Court stated:
We reaffirm the principle that a person's fear immediately following an attack or threatening act may cause the person to act in a sudden heat of passion. However, the mere fact that a person is afraid is not sufficient, by itself, to entitle a defendant to a voluntary manslaughter charge. Consistent with our law on voluntary manslaughter, in order to constitute "sudden heat of passion upon sufficient legal provocation," the fear must be the result of sufficient legal provocation and cause the defendant to lose control and create an uncontrollable impulse to do violence. Succinctly stated, to warrant a voluntary manslaughter charge, the defendant's fear must manifest itself in an uncontrollable impulse to do violence.
A person may act in a deliberate, controlled manner, notwithstanding the fact that he is afraid or in fear. Conversely, a person can be acting under an uncontrollable impulse to do violence and be incapable of cool reflection as a result of fear. The latter situation constitutes sudden heat of passion, but the former does not. Evidence that fear caused a person to kill another person in a sudden heat of passion will mitigate a homicide from murder to manslaughter-it will not justify it. This is the distinction between voluntary manslaughter and self-defense. We reiterate that evidence of self-defense and voluntary manslaughter may coexist and that a charge on self-defense and voluntary manslaughter may be warranted.
Id. at 598-99, 698 S.E.2d at 609 (second emphasis added).
Applying Starnes to the facts of the instant case, I find the Court of Appeals correctly affirmed the trial judge's decision to submit voluntary manslaughter to the jury as a lesser-included offense of murder. Initially, I note that Dickey conceded the element of sufficient legal provocation; thus, I confine my analysis to the remaining element of heat of passion.
I find the State presented evidence from which the jury could have determined that Dickey's fear manifested itself in an uncontrollable impulse to do violence. Dickey testified that he was "afraid of being hurt or killed." In addition to evidence of Dickey's fear, West and McGarrigle claimed that Dickey looked "angry" and appeared "irritated" during the encounter outside of the apartment. Furthermore, over the course of a short time-period, Dickey endured Boot's profane verbal attack and threats of violence, thus, rendering Dickey incapable of cool reflection as a result of his anger and fear of Boot. In light of this evidence, I disagree with the majority's conclusion that Dickey "acted in a deliberate, controlled manner." It cannot be said that there was no evidence whatsoever tending to reduce the crime from murder to manslaughter.
B. Trial Judge's Use of an "Illustration" in Charge
In concluding that the trial judge properly submitted the charge of voluntary manslaughter to the jury, the analysis turns to the substance of the judge's instruction.
Dickey argues the Court of Appeals erred in finding the trial judge's illustration during the voluntary manslaughter portion of his charge was not an improper comment on the facts of the case. Specifically, Dickey challenged the following language in the judge's charge:
By way of illustration and I would point out this is by illustration alone, that if an unjustifiable assault is made with violence with the circumstances of indignity upon a man's person and the party so assaulted kills the aggressor the crime will be reduced to manslaughter.
Dickey claims the illustration was an unconstitutional[10] comment on the facts of the case given "the undisputed nature of the facts and the judge's directive that the exact facts of the case 'will be' manslaughter."
The Court of Appeals rejected Dickey's challenge. In so ruling, the court found the charge, taken as a whole, was not erroneous as it was "unlikely that a reasonable juror would have singled out the illustration portion of the charge and interpreted it as the court's opinion on the facts of this case or as an instruction on the weight to be given to the evidence." Dickey, 380 S.C. at 402-03, 669 S.E.2d at 927.
For several reasons, I agree with the Court of Appeals' finding that the judge's "illustration" did not constitute reversible error. First, the judge was extremely thorough in his instructions and emphasized to the jurors that they were the arbiters of the facts. Secondly, the judge clearly instructed the jury that his instruction was "by illustration alone." Finally, the judge did not impermissibly indicate his opinion as to the weight or sufficiency of the evidence, Dickey's guilt, or any fact in controversy. Significantly, the judge instructed the jury that he was not permitted to have any opinions regarding the facts of the case and that the jury should not construe anything he said during trial as an opinion regarding the facts. See State v. Jackson 297 S.C. 523, 526, 377 S.E.2d 570, 572 (1989) ("Under South Carolina law, it is a general rule that a trial judge should refrain from all comment which tends to indicate to the jury his opinion on the credibility of the witnesses, the weight of the evidence, or the guilt of the accused.").
Based on the foregoing, I would affirm the decision of the Court of Appeals.
[1] Stroud did not witness or hear any commotion concerning the water balloon because he was in West's bedroom at the time.
[2] Stroud did not see Boot pick up a bottle, but noticed a fifth of vodka on the coffee table earlier in the night.
[3] Boot was six feet, one inch tall and weighed between 200 and 210 pounds. Petitioner was five feet, eleven inches tall, and weighed 275 pounds. In 2001, the Veteran's Affairs Administration classified Petitioner as thirty percent disabled after he was diagnosed with patella syndrome and underwent several corrective operations, leaving his right foot partially paralyzed. Due to this disability, Petitioner testified he was unable to run. Furthermore, two sets of double doors blocked his entry into Cornell Arms. The first set of doors open into a breezeway and were not locked. However, the second set of doors could only be opened with a key because they locked at 5:00 p.m. each night for security reasons. At the time of death, Boot had a blood alcohol level of .203, over twice the legal limit.
[4] Stroud testified he did not see anything in Boot's hands when he fell. However, Stroud was behind Boot as Boot advanced. Murphy, who at this point was hurrying to the door, fearful of an ensuing fight, stated she may have seen Boot reach under his shirt for something, but was unsure.
[5] Brandish is defined as "1. to shake or wave (as a weapon) menacingly 2. to exhibit in an ostentatious, shameless, or aggressive manner." Webster's Third New International Dictionary 268 (2002).
[6] Stroud's testimony that he did not notice Boot pick up a bottle when he left the apartment and did not see anything in Boot's hand after he fell did not affirmatively refute the claims of West and Dickey.
[7] Dickey has asserted the Cornell Arms mat was flush with the front of the building and, therefore, not on the sidewalk. The position of the doormat or the overhang is not dispositive on the issue of curtilage. If this argument were taken to its logical extreme, curtilage would not be determined by the underlying property but rather the position of a business's accoutrements.
[8] The trial judge instructed the jury on the right to act on appearances as follows:
In deciding whether the defendant was or believed that he was in imminent danger of death or serious bodily injury you should consider all of the facts and circumstances surrounding the offense including the physical condition and the characteristics of the defendant and the victim. . . . [I]t does not have to appear that the defendant was actually in danger. It is enough if the defendant believed that he was in imminent danger and a reasonably prudent person of ordinary firmness and courage would [have] had the same belief. A defendant has the right to act on appearances even though the defendant's beliefs may have been mistaken.
[9] In Jackson, this Court held:
The test is not whether there was testimony of an intended attack but whether or not the appellant believed he was in imminent danger of death or serious bodily harm, and he is not required to show that such danger actually existed because he had a right to act upon such appearances as would cause a reasonable and prudent man of ordinary firmness and courage to entertain the same belief.
Jackson, 227 S.C. at 278, 87 S.E.2d at 684.
[10] See S.C. Const. art. V, § 21 ("Judges shall not charge juries in respect to matters of fact, but shall declare the law.").
UPDATE: February 10, 2010
Guns in all Units of the National Park and National Wildlife Reserve System
On February 22, a new law goes into effect regarding guns in units of the national park and national wildlife refuge systems. The new law repeals Department of Interior rules that have long prohibited Americans from possessing readily available firearms for self-defense in these units. Units include national parks, wildlife refuges, battlefields, military parks, historic sites, trails, monuments and any other area under either national system. Keep in mind that this article primarily focuses on carrying handguns for personal defense.
People who are otherwise without a legal disability will now be able to possess, carry and transport firearms in all units, in accordance with state law. If you have a South Carolina CWP (or one from a state with reciprocity), you can carry a concealable weapon, concealed, according to South Carolina CWP law. Generally, this means that you can carry a concealable weapon, concealed on or about your person.
Alternatively, if you do not have a valid CWP (or if you chose not to carry according to your CWP), you can possess firearms in accordance with applicable S.C. Law for non-CWP holders. Generally, non-CWP holders can have a handgun in their vehicle if it is stored in a closed glove compartment, closed console, or in the trunk (luggage area for SUVs and station wagons) in a closed container with an integral fastener. S.C. Law also allows a hunter or fisherman to carry a handgun (concealed or openly) while traveling to and from hunting or fishing. However, that law only protects the possessor if he has a valid license and is either hunting or fishing or going directly to or from that activity (unlikely in units).
Our book, South Carolina Gun Law explains how to carry with or without a CWP while in the state. However, if you want to visit a unit in another state, you must follow the law for that state.
While it is now clearly legal to carry on the grounds of a unit, carrying inside the buildings of the units is less clear. Debate exists about the definition of federal facilities (where firearms remain prohibited under a conflicting federal law). Without further definition, you are in a legal gray area if you carry inside the buildings. On one extreme, it’s probably unlikely that a port-a-potty located in a remote area would ever be ruled a federal facility. However, what about a staffed information center? Currently, you simply must weigh the benefit of carrying your firearm against the risk of getting caught in a building that is someday ruled a federal facility.
Before you visit a unit, check the unit’s website (see nps.gov) or call its headquarters for its policy on firearms inside buildings. National Park System units in South Carolina include: Fort Sumter National Monument, Charles Pinckney National Historic Site, Congaree National Park, Ninety-Six National Historic Site, Overmountain Victory National Historic Trail, Kings Mountain National Military Park, and Cowpens National Battlefield. National Wildlife Refuge System units in South Carolina include: Savannah National Wildlife Refuge, Tybee National Wildlife Refuge, Pinckney Island National Wildlife Refuge, Ace Basin National Wildlife Refuge, Cape Romain National Wildlife Refuge, Waccamaw National Wildlife Refuge, Santee National Wildlife Refuge, and Carolina Sandhills National Wildlife Refuge.
UPDATE: August 23, 2009
KANSAS now recognizes South Carolina NON-RESIDENT CWPs.
This update to the SC Gun Law book is only directed at those who are non-South Carolina residents and hold a South Carolina qualified non-resident CWP.
Kansas has been a reciprocity state with South Carolina. However, Kansas only gave reciprocity to those South Carolina residents who held a Resident CWP. In other words, those non-South Carolina residents who held a South Carolina qualified non-resident CWP were not given reciprocity under that CWP.
However, as the result of Kansas Attorney General Steve Six’s analysis and formal opinion of Kansas law, Kansas now recognizes those South Carolina non-residents who hold a qualified non-resident South Carolina CWP.
If you have any questions, please feel free to contact us.
UPDATE July 18, 2009.
SOME NEW RULES FOR SCHOOLS
In the spring of 2009, the South Carolina Legislature passed, and Governor Sanford signed, Senate Bill 593. The new law decriminalizes bringing guns onto school grounds for Concealed Weapons Permit holders under certain circumstances. You should still read the Rules for Schools in South Carolina Gun Law but also use the following as a supplement to the book. This supplement and the book complement each other and both should be understood together.
The context of Senate Bill 593.
Prior to the passage of S. 593, many parents dropping-off kids for school, students at colleges, teachers going to work and anybody else required to be on school property had a problem. The problem was that the South Carolina Code of Laws made it illegal to have a firearm on any grounds owned, operated or controlled by a school (except if you had permission from the authorities in charge of the premises or property). So, while parents might have otherwise been legal possessing a firearm either on their person with a Concealed Weapons Permit or in the glove compartment or console while driving the children to school, the same firearm became illegal if the parent drove onto a drop off area on school premises. Further complicating the process was that it is often difficult to determine where school premises begin and end. This situation left the parents in the unfortunate position of having to choose between breaking the law by entering school property with a firearm or forfeiting ts or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.heir natural right to arms as protected by the Second Amendment and the South Carolina Constitution. Similarly, teachers and college students who could otherwise lawfully carry a firearm off campus were required to forfeit their right to keep and bear arms the instant that they crossed onto school premises.
What does S. 593 do?
S. 593 amends South Carolina criminal law to provide an exception to the prohibition against certain weapons on school grounds under certain circumstances. Specifically, S. 593 amends Sections 16-23-420 and 16-23-430 of the S. C. Code of Laws. In a nutshell, S. 593 decriminalizes firearms on school grounds if the possessor has a valid Concealed Weapons Permit (CWP) and keeps the firearm in a closed glove compartment, console, or trunk or in the luggage area of the vehicle so long as the firearm is inside of a closed container that has an integral fastener. Also, the vehicle must be attended or locked. Following, we’ll take a look at each element of the law as well as potential questions and problems that may arise.
S. 593 first amends Section 16-23-430 of the S.C. Code of Laws. Section 16-23-430 prohibits “weapons” on elementary and secondary school premises (elementary, middle and high schools). The Section specifically defines a firearm as a weapon. Violations are a felony carrying a potential penalty of $1,000 fine and five (5) years in jail, or both, as well as confiscation of the weapon and a lifetime federal firearms disability. S. 593 amends the Section by adding the following:
(B) This section does not apply to a person who is authorized to carry a concealed weapon pursuant to Article 4, Chapter 31, Title 23 when the weapon remains inside an attended or locked motor vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle.
So, on its face, S. 593 eliminates criminal liability for CWP holders possessing a weapon on elementary or secondary schools so long as the weapon remains inside the closed glove compartment, closed console, closed trunk (or in the luggage area so long as the weapon is in a closed container secured by an integral fastener) and the vehicle itself is locked or attended. Before getting too deep into the specifics of this first half of S. 593 though, let’s look at the second half of S. 593 because many of the analyses will be the same for both halves.
S. 593 also amends Section 16-23-420 of the S.C. Code of laws. Section 16-23-420 is different from Section 16-23-430 because it prohibits firearms specifically and extends the prohibition to all schools as opposed to only elementary and secondary schools. S. 593 amends Section 16-23-420 as follows:
The provisions of this subsection related to any premises or property owned, operated, or controlled by a private or public school, college, university, technical college, or other post-secondary institution, do not apply to a person who is authorized to carry a concealed weapon pursuant to Article 4, Chapter 31, Title 23 when the weapon remains inside an attended or locked motor vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle.
As before, on its face, S. 593 eliminates criminal liability for CWP holders possessing a weapon on elementary and secondary schools, as well as colleges, so long as the weapon remains inside the closed glove compartment, closed console, closed trunk (or in the luggage area so long as the weapon is in a closed container secured by an integral fastener) and the vehicle itself is locked or attended.
How does S. 593 apply to Me?
You can only enjoy the provisions of S. 593 if you have a valid South Carolina issued CWP. If you do not have a South Carolina issued CWP (either resident or qualified non-resident), this new law does not apply to you. If you do not have any CWP, you are prohibited from bringing a firearm of any kind onto school premises (S.C. Code of Laws Section 16-23-420 (A)) (unless you fall under an exemption like police officers or you have permission from the authorities in charge of the school).
If S. 593 stood alone, a person with an out-of-state CWP asserting reciprocity would benefit the same under S. 593 as would someone with a South Carolina issued CWP. But, S. 593 does not stand alone and out-of-state CWP holders are burdened by the federal Gun Free School Zones Act.
What if I do not have a South Carolina issued CWP?
Without a South Carolina issued CWP, under the federal Gun Free Schools Act of 1996, you are prohibited from knowingly possessing a firearm in a “school zone” (basically within 1,000 feet of an elementary, middle or high school with some exceptions). The Gun Free Schools Act has been interpreted by the Bureau of Alcohol Tobacco and Firearms to require that the individual carrying the firearm must have a CWP issued by the state that the school is in. This distinction is important because there are many instances where out of state parents might have to travel to a South Carolina school for student competitions or events. To insure compliance with the Gun Free Schools Act, holders of out-of-state CWPs (with S.C. reciprocity) should park off elementary, middle or high school premises with any firearms stored in the closed glove box, closed console, closed trunk, or in a closed container with an integral fastener in the luggage area of the vehicle.
Before we move on, let me mention that you should consider the federal Gun Free School Zone Act to apply within 1,000 of an elementary, middle or high school boundaries or within 1,000 feet of an off-site event sponsored by one of these schools. The Act defines a school zone as:
[I]n, or on the grounds of, a public, parochial or private school; or within a distance of 1,000 feet from the grounds of a public, parochial or private school (18 U.S.C. 921(a)(25)).
The Act goes on to define a school as:
[A] school which provides elementary or secondary education, as determined under State law (18 U.S.C. 921(a)(26)).
So, to fully define school under the Act, we have to look at South Carolina law. With respect to firearms, the South Carolina Code of Laws defines schools as:
[P]roperty owned, operated or controlled by a public or private school (S.C. Code of laws 16-23-420(a)).
Therefore, you should consider the federal Gun Free School Zones Act not only applicable to within 1,000 feet of all public and private schools but also within 1,000 feet of all premises where any school sponsored or controlled activity is occurring. If this law seems burdensome, it is, and it should be struck down for a number of reasons. However, at this point, it is the law and you can incur criminal liability if you are found in violation of it.
What if I do have a South Carolina CWP?
If you have a valid South Carolina CWP, the new law provides an exception to the prohibition against firearms on all school premises or areas controlled by schools without getting special permission from the authorities in control of the school. The firearm can be loaded and chambered. To fall within the exception, the CWP holder must have the firearm in a closed glove box or console, closed trunk, or in the luggage area of vehicle so long as the firearm is in a closed container with an integral fastener. In our book South Carolina Gun Law, we go into detail explaining the terms used in this section of the Code. For the purposes of this article, I will try to give brief definitions or descriptions:
Schools – Public and private preschools through Colleges including technical schools.
School Premises – Inside the real estate boundaries of the school property and any other premises that the school is controlling (i.e. off campus ball games or competitions).
Console – There exists reasonable debate amongst gun owners as to the definition of console. There is no case defining console so I can only give my reasoned opinion. A factory installed console between the front seats is clearly a console. Aftermarket consoles that attach to the floor between the front seats or the front seat itself might likely be ruled a console also. It is also reasonable to think that consoles between the rear seats would be included in the definition but you can’t be sure. However, the more that the console gets away from a factory installed or permanently attached aftermarket console between the two front seats, the more wiggle-room a court has to find that the console is not a console under the Section.
Luggage Area - The luggage area of a vehicle is that area designed for storage of luggage. In a typical SUV, the luggage area is behind the last row of seats.
Closed Container - A container that is capable of fully closing so that items inside the container cannot be seen (i.e. a gun case, tackle box, or gun rug).
Integral Fastener - A device, designed as part of the container, that is capable of positively keeping the container closed (i.e. a metal or plastic clasp on a gun case or tackle box or the zipper on a gun rug).
The above definitions are important because, even though CWP holders will now be legal carrying onto school premises and events, the CWP holder cannot carry as typically allowed under the permit. In general, the CWP allows the holder to carry a concealable weapon, concealed in many places. That generally means carrying a handgun in a concealed holster on the person, in a pocket, around an ankle or in a purse or briefcase. Under S. 593, the CWP holder cannot carry a concealable weapon, concealed on school premises. Alternatively, the CWP holder can only possess a firearm on school premises if the firearm is in the vehicle’s closed glove box, closed console or closed trunk or in the luggage area in a closed container with an integral fastener. So, if the CWP chooses to carry his or her concealable weapon, concealed, on or about his person on the way to a school, the CWP holder must remove the handgun from its concealed location and place it into one of the listed areas of the vehicle before entering the school premises or event. While it seems illogical to move a safely holstered firearm to one of the areas of the vehicle listed, that is the law and a violation will subject you to criminal prosecution. (I will later discuss the legality of transitioning from concealed carry to one of the vehicle areas).
Another requirement is that the vehicle must be locked or attended. So, if you simply drop children off at school, you remain in the vehicle and the vehicle remains attended. Also, if you stand alongside of your vehicle or nearby the vehicle, you could probably successfully argue that the vehicle is attended under the meaning of the law. If, however, you leave the car in the school parking lot and walk the child to the first class or assembly, you must lock the vehicle before leaving it in the parking lot. Since there is no court case defining the term “attended vehicle” under this Section, the best practice is to lock your vehicle if you are not in it or standing very nearby to it.
The South Carolina CWP holder should pay special mind to the concepts of attended vehicle and person in possession of the firearm if leaving the vehicle on school premises. For instance, what if the husband has a South Carolina issued CWP and leaves his handgun in the glove box to walk his child to first period class after locking the vehicle. In that instance, he is in compliance because the firearm is in a legal place and the vehicle is locked when he walks away. However, say that wife is also in the vehicle on the school premises but she does not have a South Carolina issued CWP. The firearm is now in the possession of the wife who does not have a South Carolina issued CWP so she is not legal under S. 593. But, what if the husband locked his wife in the car before leaving the car? Has the husband complied with the law because he left the firearm in a legal place in the locked vehicle? This issue might eventually require court interpretation or a modification of the law. For now, the best practice is to ensure that anyone left in the vehicle with a firearm has a valid South Carolina issued CWP.
Once the South Carolina issued CWP holder is off of the school or school event premises, the weapon can be retrieved from its storage in the vehicle and returned to the place of concealment on or about the person. Or, if the CWP holder wants to leave the handgun in the glove box, console, trunk or luggage area, he or she can because those areas fall within an existing exception to the general prohibition against handguns (Section 16-23-20(9)(a)).
Transitioning from concealed carry to one of the vehicle areas is protected by a different Section. South Carolina Code of Law Section 16-23-20(12) makes it legal for a CWP holder to transition between his person and a closed glove compartment, console or trunk or in a closed container with an integral fastener in the glove compartment. Notice the Section says between the CWP holder’s person and those specified areas of the vehicle so it is legal to transition both to and from concealment on your person.
Employer Liability vs. Criminal Liability for Teachers, Administrators & School Staff
Teachers, administrators, professors and staff with CWPs can keep firearms in their attended or locked vehicles, in the specified areas of the vehicle on school premises, without criminal liability. Undoubtedly, some authorities in charge of the school or school premises might try to institute a policy of “no guns on the premises” as a condition of employment. This issue has already been addressed in a South Carolina Attorney General’s Opinion dated March 1, 2000. The Attorney General concluded that a Department of Corrections policy could not prohibit that which state law allows. Therefore, the Department of Corrections could not prevent employees from having guns in their vehicles. Before going on, it is important to note that the Attorney General Opinion is applicable to state-run school facilities and possibly not private facilities.
In his opinion, the Attorney General discussed a Department of Corrections policy that prohibited employees, including guards, from having a firearm in their vehicles. The policy provided that any employee violating the rule would be fired. Citing caselaw from as far back as 1928, the Attorney General opined the long-established precedent that a state agency is powerless to prohibit that which the State authorizes, directs, requires, licenses, or expressly permits. He then went on to note that, because the General Assembly specifically granted, through Section 16-23-20, the right to carry a firearm in the closed glove compartment, closed console, or closed trunk of an automobile, the Department of Correction's prohibition against an employee's having a weapon in his locked motor vehicle would be without authority and inconsistent with state law. The same analysis applies to S. 593. The new law expressly permits a CWP holder to have firearms on school premises in his vehicle in the specified vehicle areas and either attended or locked. So, CWP holders are not prohibited for having a firearm in the vehicle nothwithstanding any state-run school’s policy against firearms on school premises.
Private schools and colleges are not agencies of the state so the same analysis above cannot be strictly applied to those institutions. Private schools are private organizations operating on private property and are not state agencies. So, teachers, staff and administrators might face employment sanctions if the particular institution has a policy against employees having firearms on the premises. Likewise, visitors and students of private universities are subject to the rules and regulations of each private institution. While violators of such institutional policies would not face criminal liability, they are none-the-less subject to any penalties applicable for rule violations.
Students and S. 593
S. 593 will allow some students to possess firearms on campus. The first thing that a student must do is determine whether it is legal for them to possess a firearm in general. Under South Carolina law, with some exceptions, the minimum age for possessing a handgun is 18 years of age. Remember, though, that the new law is not applicable to a person on college campuses unless that person has a valid South Carolina CWP or reciprocity from another state (the federal Gun Free School Zones Act is only applicable to elementary, middle and high schools). The minimum age to get a South Carolina CWP is 21 years of age.
States other than South Carolina might issue CWPs to persons under age 21 (18 to 20 year olds). If the student is relying upon a CWP from a reciprocal state, the student should be aware that South Carolina Code of Laws Section 23-31-215(N) requires a CWP holder from a reciprocal state to abide by SC law. Thus, it would appear that an 18 to 20 year old CWP holder from a reciprocal state would not be legal in SC. However, this issue has not been determined by a court. To ensure compliance with the law, holders of out-of-state CWPs, relying upon reciprocity, must be 21 years of age when bringing firearms onto campus according to S. 593.
If the student has a CWP, the student must remember to leave the handgun in an attended or locked vehicle in the specified areas as discussed previously. As a final note, the federal Gun Free School Zones Act is not applicable to colleges, community colleges, technical schools or any similar educational institution that is not an elementary or secondary school.
Students should be aware of differences between public and private universities. As stated earlier in the section regarding employee liability, private universities and colleges are not agencies of the state. Private universities and colleges are private organizations operating on private property and are not state agencies. So, students and visitors on private university premises might face non-criminal sanctions if the particular institution has a policy against having firearms on the premises.
Can I now have a Rifle or Shotgun on School Premises?
Some have suggested that the language of the new law allows CWP holders to have not only concealable weapons (most handguns) in vehicles on school grounds, but any type of weapon. This interpretation is based upon language in S. 593 never referring to “firearms” or ‘handguns” but only weapons. Under this interpretation, a CWP holder is allowed to have any type of weapon on school grounds so long as it is stored in a closed glove compartment, console, or trunk, or in the luggage area in a closed container with an integral fastener.
The benefit under this interpretation is that weapons larger than those that qualify as concealable weapons under the CWP Section would qualify as weapons. The CWP Section defines concealable weapons as a firearm having a length of less than twelve inches measured along its greatest dimension. Because legal rifles must have a barrel length of at least 16 inches and shotguns must have a barrel length of 18 inches, rifles and shotguns do not fall within the definition of a concealable weapon. So, if the new law is interpreted to mean weapons and not concealable weapons, CWP holders would not be prevented from having rifles and shotguns so long as they are stored in the allowed areas of an attended or occupied vehicle. Obviously most glove compartments and consoles are not able to contain a rifle or shot gun. However, most trunks and luggage areas are.
There are not yet any court cases interpreting the meaning of weapon under this new law. If a CWP holder chooses to carry a rifle or shotgun under this interpretation and is later arrested for possession of firearms on school grounds, that individual might well be the “test case” for the issue. Because the new law specifically cites carrying pursuant to the CWP Section, the most conservative way to approach interpreting weapon is to define it the same way the CWP does. To carry a weapon pursuant to the CWP Section, the weapon must be a concealable weapon. Therefore, the best practice is to only store concealable weapons in the allowed areas of attended or locked vehicles. In general, concealable weapons are handguns less than 12 inches long.
Can I have a firearm in my motorcycle saddlebag on school premises?
Section 16-23-20 of the S.C. Code of Laws spells out the general handgun prohibition and the exceptions. That Section of the Code of Laws differentiates motorcycles from vehicles. Subsection (9)(a) provides the exact language upon which the new law (S. 593) gets its language (i.e. [there is an exception to the handgun prohibition if] the person has the handgun in a vehicle and the handgun is in the closed glove compartment, console, etc.) Later Section 16-23-20, Subsection (16) grants a separate and distinct exception for a pes or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.rson on a motorcycle if the firearm is secured in a saddlebag. So, it can safely be said that the legislative intent of Section 16-23-20 is to view vehicles separately from motorcycles. It is also significant that the Subsections refer to an exception of the person is in a vehicle or on a motorcycle.
So, when we look at the new law, S. 593, you should assume that the legislature had the same intent. The new law tracks the language of 16-23-20(9)(a) which provides for an exception if the gun is in the vehicle in one of the legal areas. The new law makes no provision for a person on a motorcycle. You should assume that if the legislature wanted to include an exception for motorcycles, it would have included an exception for them as it has in section 16-23-20. Therefore, the best practice is to not assume that the new law applies to motorcycles.
Conclusion
In summary, with some conditions, South Carolina issued CWP holders can now possess firearms on all school premises and events without incurring criminal liability. The firearm must remain inside an attended or locked vehicle in the closed glove compartment, console, or trunk, or in the luggage area in a closed container with an integral fastener. The firearm should be a concealable weapon as defined in the CWP Section of the South Carolina Code of Laws.
While S. 593 has some conditions that require you to think through a trip to schools, the new law is important progress toward implementing the full protection of gun rights under the Second Amendment and the South Carolina Constitution. GrassRoots GunRights South Carolina has been vital to the effort in getting S. 593 passed.
Update: June 5, 2009
S. 593 – New Rules for Schools
South Carolina law regarding carrying firearms on school premises has been changed for concealed weapons permit holders. Stephen Fulton Shaw, Esq., has completed a new written analysis for your benefit. However, the analysis is currently under review for completeness and accuracy by other attorneys. The plain English analysis will appear on the website in the near future.
Update: May 19, 2009
Carrying Near Schools
The Federal Gun Free Schools Act of 1996:
Because there is great current interest in proposed changes to South Carolina Law regarding the ability to carry a firearm on school grounds, the issue of the Federal Gun-Free Zones Act of 1990 has emerged as a point of discussion.
The Gun-Free School Zones Act of 1990 is a federal law that was enacted as part of the “Crime Bill’ of 1990. The law basically made it illegal to possess or discharge a firearm on elementary or secondary school grounds or within 1,000 feet from the school grounds (what the law defines as a school zone).
After its passage, it was later declared unconstitutional by the United States Supreme Court. The case upon which the US Supreme Court reviewed the law was U.S. v. Lopez (1995). While it is interesting to discuss the technical grounds upon which the Court found the law unconstitutional, that discussion is beyond the scope of this update.
Determined to interfere with your right to keep and bear arms, Congress re-enacted the law as the Gun-Free School Zone Act of 1996. This “new and improved” law “corrected” the technical defects in the 1990 law as identified by the Supreme Court in its U.S. v. Lopez decision.
So, as it stands now, the Gun-Free School Zone Act of 1996 (18 USC 922(q)) has not been struck down as unconstitutional, therefore, it is valid and enforceable. Two federal appeals courts have held that the new amended statute is constitutional, Danks in the 8th Circuit and Pierson in the 5th Circuit. However, the U.S. Supreme Court did seem to reiterate the invalidity of the law in U.S. v. Morrison (a case that reviewed a similar law). But, until the Supreme Court actually decides to review the law head-on, the only controlling legal authority comes from the appellate decisions so the law should be considered upheld at this point.
So, what does the law say or prohibit? The law makes it a crime, punishable by 5 years in jail and $5,000, to knowingly possess a firearm in a school zone unless the possessor meets one of the exceptions. In general, school zone is defined as the grounds (or within 1,000 feet of the grounds) of any public, private or parochial elementary or secondary school. Exceptions to that general rule are as follows:
a. the possessor has a valid concealed weapons permit
b. the possessor is on private property, not part of the school,
c. the gun is not loaded, and is in a locked container, or in a locked firearm rack in a motor vehicle,
d. the firearm is used in a program (that has been approved by the school) somewhere within the school zone,
e. the possessor is a security guard under contract with the school,
f. the possessor is a law enforcement officer performing official duties, or
g. the gun is unloaded and the possessor is going across the school zone for legal access to hunting land (with the school’s permission).
In summary, those without a concealed weapons permit should consider this valid law and abide by it. Those with a concealed weapons permit are exempt from the restrictions of the law. Keep in mind though, that South Carolina Law regarding carrying at schools still applies whether you have a concealed weapons permit or not so refer to your South Carolina Gun Law book for the “Rules for Schools.”
If you want to read the law straight from the federal statutes, here it is:
(18 USC 922(q)(20)(A) et seq.)
"(2)(A) It shall be unlawful for any individual knowingly to
possess a firearm that has moved in or that otherwise affects
interstate or foreign commerce at a place that the individual
knows, or has reasonable cause to believe, is a school zone.
"(B) Subparagraph (A) does not apply to the possession of a
firearm--
"(i) on private property not part of school grounds;
"(ii) if the individual possessing the firearm is licensed to
do so by the State in which the school zone is located or a
political subdivision of the State, and the law of the State or
political subdivision requires that, before an individual obtains
such a license, the law enforcement authorities of the State or
political subdivision verify that the individual is qualified under
law to receive the license;
"(iii) that is--
"(I) not loaded; and
"(II) in a locked container, or a locked firearms rack that is
on a motor vehicle;
"(iv) by an individual for use in a program approved by a
school in the school zone;
"(v) by an individual in accordance with a contract entered
into between a school in the school zone and the individual or an
employer of the individual;
"(vi) by a law enforcement officer acting in his or her
official capacity; or
"(vii) that is unloaded and is possessed by an individual
while traversing school premises for the purpose of gaining access
to public or private lands open to hunting, if the entry on school
premises is authorized by school authorities.
Update: April 22, 2009
SLED’s new application for Concealed Weapons Permit:
Our book went into some detail describing the SLED application for obtaining a new or duplicate CWP. As a result of a 100% increase in CWP applications over last year and a 30% cut in funding for SLED, SLED has developed new procedures for the application. The procedures and forms described in our book will remain current and effective until June 30, 2009. However, applicants can alternatively use the new streamlined application and procedure as noted below. As before, we still recommend that a person desiring to obtain a CWP contact a full-service instructor as described in the book.
The SLED has drafted a new CWP Application (Form R-078 (Revised 3/27/09)). As of this date, SLED would like applicants to complete the form ONLINE and then print it from their computer. This will insure legibility and streamline SLED’s workload.
Instructors will no longer place the training results on the application but will provide a separate certificate of completion that has been provided by SLED. The certificate is on SLED’s website.
You are almost assured that your application will take the full 90 days to process. SLED asks that applicants DO NOT CALL SLED regarding the status of applications until after the 90 day period. Calling earlier will cause SLED to divert valuable time and resources from processing applications.
The new form does not require that you include information about any prior arrests or convictions. Because SLED, will find that information anyway on the background check, they do not need an applicant to include the information on the form. That being the case, if you have prior convictions that will prevent you from obtaining the license (see Chapter 4, the Concealed Weapons Permit) DO NOT BOTHER WASTING YOUR TIME AND MONEY APPLYING because the convictions will appear on your record. If you are unsure of how your past will affect your application after reading our book, consult an attorney before applying.
You are now NOT required to indicate any minor (non criminal) traffic incidences on your application.
Resident applicants are not required to send photographs because the computer image from your SC drivers license or ID card will be retrieved by SLED and used. If you are applying for a qualified non-resident CWP, you will need to send a photo in compliance with the size specifications discussed in the book.
Applicants for a renewal are asked to use SLED’s online process and to apply about 90 days prior to the expiration of the CWP.
SLED has asked that you remind your fingerprint technician to take care to properly take the prints because nearly 15% of fingerprint cards are being returned by FBI as illegible. This will delay an application considerably.
Fingerprint cards are no longer mailed by SLED upon request. Instead, applicants are asked to call their regional SLED office to arrange for a pickup of cards:
Columbia Area: (803) 896-7015
Piedmont Area: 301 E North St., Greenville (864) 467-8111
PeeDee Area: Effingham Office (843) 662-6245
Low Country: 6435 Fair Street Suite A, N. Charleston (843) 569-7593
Update: April 19, 2009
A federal judge has suspended carry in National Parks
and National Wildlife Refuges:
On page 107 of South Carolina Gun Law, the book indicates that a Bush Administration amended national park and wildlife refuge rules to allow carry of concealed weapons on these public lands.
On Thursday, March 19, 2009, a federal district judge in Washington, D.C. granted anti-gun plaintiffs a preliminary injunction against implementation of the new rule.
As it now stands and until further notice, individuals cannot legally carry loaded, concealed firearms for personal protection in national parks and wildlife refuges.
At this time, the “old” rules are in effect. Basically, the old rule requires that all firearms be unloaded, broken-down (field stripped) or packed and stored in a manner that will prevent ready use. Ammunition must also be stored separately.
If you want the old rule in its entirety, here it is:
Codes of Federal Regulations, Title 36, Volume 1, Parts 1 to 199 [revised as of 07-01-98].
Chapter 1-National Park Service, Dept. of the Interior. Part 2-Resource Protection, Public Use and Recreation:
Section 2.4 Weapons, Traps, and Nets:
(a)(1) Except as otherwise provided in this section and parts 7 (special regulations), and 13 (Alaska regulations), the following are prohibited: (i) Possessing a weapon, trap or net (ii) Carrying a weapon, trap or net (iii) Using a weapon, trap or net (2) Weapons, traps or nets may be carried, possessed or used: (i) At designated times and locations in park areas where: (A) The taking of wildlife is authorized by law in accordance with Sec. 2.2 of this chapter: (B) The taking of fish is authorized by law in accordance with Sec. 2.3 of this part. (ii) When used for target practice at designated times and at facilities or locations designed and constructed specifically for this purpose and designated pursuant to special regulations. (iii) Within a residential dwelling. For purposes of this subparagraph only, the term "residential dwelling" means a fixed housing structure which is either the principal residence of its occupants, or is occupied on a regular and recurring basis by its occupants as an alternate residence or vacation home. (3) Traps, nets and unloaded weapons may be possessed within a temporary lodging or mechanical mode of conveyance when such implements are rendered temporarily inoperable or are packed, cased or stored in a manner that will prevent their ready use. (b) Carrying or possessing a loaded weapon in a motor vehicle, vessel or other mode of transportation is prohibited, except that carrying or possessing a loaded weapon in a vessel is allowed when such vessel is not being propelled by machinery and is used as a shooting platform in accordance with Federal and State law. (c) The use of a weapon, trap or net in a manner that endangers persons or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.
South Carolina Focuses on NICS Background Reporting
Update: July 30, 2012
Minor Improvements in the South Carolina Gun Law for 2012
Update: May 10, 2011
South Carolina Supreme Court Affirms Castle Doctrine Immunity from Criminal Prosecution for Lawful use of Gun in Self-Defense
Update: October 10, 2011
South Carolina Supreme Court Reverses Conviction for Self-Defense Shooting
Update: February 10, 2010
Guns in all Units of the National Park and National Wildlife Reserve System
Update: July 18, 2009.
SOME NEW RULES FOR SCHOOLS
Update: June 5, 2009
S. 593 – New Rules for Schools
Update: May 19, 2009
Carrying Near Schools
The Federal Gun Free Schools Act of 1996:
Update: April 22, 2009
SLED’s new application for Concealed Weapons Permit:
Update: April 19, 2009
A federal judge has suspended carry in National Parks
and National Wildlife Refuges:
UPDATE: August 23, 2009
KANSAS now recognizes South Carolina
NON-RESIDENT CWPs.
UPDATE - June 25, 2013
South Carolina Focuses on NICS Background Reporting
On May 3rd, South Carolina Governor Nikki Haley signed House Bill 3560 into law. The law does not immediately go into effect. Instead, it will become effective August 1, 2013. HB 3560 creates a requirement that individuals who have been placed under certain types of mental health-related orders by a court have their commitment order reported to the National Instant Criminal Background Check System (NICS).
Taking a step back, the NICS was mandated by the Clinton Era “Brady Act” in 1994. The law provided that the FBI and states coordinate to provide a working system of gin purchaser’s intake, cross-reference with existing criminal record data bases, and the a relatively fast return of the applicant’s eligibility to purchase a firearm to the dealer processing the sale. States could have their own operational arm of the system or they could defer to the FBI’s national system. It was not until late 1998 that the NICS system became operational.
Almost ten years after the NICS became operational, the massacre at Virginia Tech occurred. Following the investigation that ensued, it was discovered that the gunman was a person prohibited from possessing or purchasing a firearm. He was prohibited because he was adjudicated mentally defective by a court. However, when he went to purchase a firearm soon before the massacre, his application did not produce a “hit” when run through the NICS. The information about his adjudication never made it from the courthouse to the NICS databases.
In reaction to this failure, Congress passed, and President Bush signed, the NICS Improvements Amendments Act of 2007. That Act provided for grants to support local and state governments and courts’ reporting of adjudications to NICS. The Improvements Act was a “carrot” program as opposed to a “stick.” What I mean is that there were no mandates but, rather, incentives and guidelines. Local and state government agencies were encouraged to voluntarily comply. For whichever reason, whether political, fiscal or just not knowing about the grants, some state and local governments have been slow to participate.
Even before this law, the South Carolina Judicial Department had already made efforts to improve reporting prior to this bill. The Department in 2011 sent a representative to the regional NIAA meeting in Nashville to learn about grants and implementation of the Act. Similarly, in January 2013, the President, in reaction to the Sandy Hook massacre, issued an “Executive Action” in the form of a Memorandum. The Memorandum directed relevant federal agencies to review its practices and procedures and implement a plan to improve reporting to NICS.
So, what does this new South Carolina law do? First, no new firearms prohibitions have been created. If you were not prohibited from possessing or purchasing a firearm before, you are not prohibited now by any element of this law. This law does not expand or create new categories of prohibited persons.
In plain English, the law is South Carolina mandating upon itself the voluntary standards set forth in the NICS Improvement Amendments Act. Therefore, South Carolina agencies and courts must now, under state law, comply with the standards that were previously merely encouraged under the federal NIAA.
Is there relief for those with an adjudication that is required to be reported to NICS? The new law, following drafting guidelines set forth in the NIAA, allows a court to grant relief from a federal firearms prohibition and restore a person’s gun rights upon a finding that the petitioner will not be likely to act in a manner dangerous to public safety, and that the granting of the relief would not be contrary to the public interest.
UPDATE - July 30, 2012
Minor Improvements in the South Carolina Gun Law for 2012
While any improvement in gun law is very welcome news, the 2012 South Carolina Legislative session brought two relatively minor improvements for gun owners and possessors. The reason we consider them minor is that they do nothing to push back restrictions upon carry of firearms, whether with a Concealed Weapons Permit or not, by law abiding people.
The two amendments are as follows:
I. Firearms, purchase of rifles or shotguns, removal of contiguous state requirement
Section 23-31-10 is amended to read:
"Section 23-31-10. A resident of this State including a corporation or other business entity maintaining a place of business in this State, who may lawfully purchase and receive delivery of a rifle or shotgun in this State, may purchase a rifle or shotgun in another state and transport or receive it in this State; provided, that the sale meets the lawful requirements of each state, meets all lawful requirements of any federal statute, and is made by a licensed importer, licensed manufacturer, licensed dealer, or licensed collector."
Note that this applies to folks licensed to deal in firearms. The South Carolina law now mirrors federal law for this subject.
II. Repeal of Section 31-23-Article 3
Dealers can sell handguns made of previously prohibited metals
Among other things like wiping out some definitions, House Bill 4494 repeals the prohibition on selling certain handguns that do not meet the arbitrary 800 degree melting-point standard that we discussed in Chapter 2 of our book. That provision used to be in Section 23-31-180 of the South Carolina Code of Laws and made it unlawful for “dealers” in firearms to sell firearms made of certain metals.
s or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.
Further, the repeal eliminates the requirement for Federal Firearms License holders (FFLs) to be licensed with the state in order to sell handguns. Again, this amendment applies to dealers in firearms as opposed to private sellers. Be aware, however, that a private seller, even though not a dealer, still must comply with federal law when selling firearms.
UPDATE: May 10, 2011
South Carolina Supreme Court Affirms Castle Doctrine Immunity from Criminal Prosecution for Lawful use of Gun in Self-Defense
Yesterday, the South Carolina Supreme Court issued its first opinion on South Carolina’s Protection of Persons and Property Act. This act is discussed in our South Carolina Gun Law book under the self-Defense Chapter. Please read that chapter first to get a good grasp of the legal concepts of self-defense and “presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person.”
Because the actual Supreme Court decision is short, I am not going to write much of a synopsis here. The opinion is in plain English and pretty self-explanatory. The only “tricky” part might be towards the end where it talks about the trial Court’s standard of proof. In general, however, the non-lawyer should be able to read and understand the decision – especially after reading our chapter on self-defense.
In a nutshell though, the opinion follows the plain language of the Act. The Act says that South Carolina “recognizes that a person's home is his castle . . . ." Further, “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.”
According to the opinion, four people were in the home of the person who shot in self-defense: the shooter (Duncan), his girlfriend (Templeton), and another couple who did not reside on the premises. They were all in the home together for whatever reason and the shooter’s girlfriend Templeton displayed a picture of the shooter’s daughter in a cheerleading outfit. The man from the non-resident couple (Spicer), made inappropriate comments about the cheerleader/daughter and Duncan asked Spicer to leave.
Spicer did leave but came back several minutes later. Spicer was opening the screened porch door when Duncan exited the front door of the house onto the porch with a gun. Spicer then began advancing across the porch and Templeton was between Spicer and Duncan and was trying to get Spicer off the steps and leave. Spicer continued to force his way onto the porch. Templeton claimed Duncan pointed the gun at Spicer and fired. Spicer died from the gunshot wound.
The Greenville County Prosecutor filed criminal charges (presumably murder or manslaughter) against Duncan. Duncan’s attorney immediately filed a motion to dismiss the charges based upon the Act. The trial Court granted the motion to dismiss (meaning the prosecutor could not further prosecute the charges against Duncan) and the prosecutor appealed. The Supreme Court ruled that it was proper for the trial Court to dismiss the case immediately without any further proceedings.
While this is a very good opinion and true to the intention of the Defense of Persons and Property act, it should not be construed as a license to shoot people in your home absent a justifiable threat. The key facts here are that Templeton testified that Spicer continued to force his way onto the porch. Because Spicer continued to force his way onto the porch, Duncan was given the legal presumption of a “reasonable fear of imminent peril of death or great bodily injury to himself or another person.” Remember that the Spicer was not a resident of the premises and was not a law enforcement officer acting in the performance of his official duties.
Please re-read out chapter on self-defense and the opinion below for a good legal grounding on the law of self-defense in South Carolina. It is important for you to know self-defense law to protect you, your family, and law enforcement officers who identify themselves as such and are carrying out official duties.
As always, if you have any questions, feel free to email us using the “Contact Us” button on this website.
s or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.
Thank you, Steve Shaw
_________________________________________________________________________
Official S.C. Supreme Court Opinion Below: ↓
_________________________________________________________________________
- State v. Duncan
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Appellant,
v.
Gregory Kirk Duncan, Respondent.
Appeal from Greenville County
Edward W. Miller, Circuit Court Judge
Opinion No. 26974
Heard January 18, 2011 – Filed May 9, 2011
AFFIRMED
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka and Senior Assistant Attorney General S. Creighton Waters, of Columbia, and Solicitor Robert Mills Ariail, of Greenville, for Appellant.
Chief Appellate Defender Robert M. Dudek and Senior Appellate Defender Joseph L. Savitz, III, of South Carolina Commission on Indigent Defense, of Columbia, for Respondent.
JUSTICE PLEICONES: The State appeals the circuit court's grant of respondent's pre-trial motion to dismiss on the ground that respondent was entitled to immunity under the Protection of Persons and Property Act[1] (the Act). We affirm.
FACTS
Respondent was indicted for murder after he shot and killed Christopher Spicer (the victim) at respondent's home. Prior to trial, respondent moved to dismiss the indictment, arguing he was entitled to immunity under the Act. At a hearing on respondent's motion, the State introduced numerous pieces of evidence, including witness statements and testimony, photographs and video of the crime scene, 911 tapes, and the victim's autopsy report.
According to the statement and testimony of respondent's girlfriend, Jean Templeton, she, the victim, and the victim's girlfriend, Amanda Grubbs, were guests in respondent's house on the night of the shooting. At some point, Grubbs handed the victim a picture of respondent's daughter in a cheerleading outfit and the victim began making inappropriate comments about the picture. Respondent asked the victim and Grubbs to leave.
According to Templeton, the victim left but returned a few minutes later. The victim was opening the screened porch door when respondent exited the front door of the house onto the porch with the gun. At one point, the victim began advancing across the porch and Templeton was "between [the victim] and [respondent]" and was "trying to get [the victim] off the steps and leave." The victim continued to force his way onto the porch. Templeton claimed respondent pointed the gun at the victim and fired. The victim died as a result of the gunshot wound to the face.
After considering the evidence, the circuit court dismissed the indictment finding respondent was immune, under the Act, from prosecution.
ISSUES
I. Did the circuit court err in making a pre-trial determination of immunity?
II. Did the circuit court err in finding respondent was entitled to immunity under the Act?
ANALYSIS
I. Pre-trial determination of immunity
The State argues the circuit court erred in making a pre-trial determination of immunity.[2] We disagree.
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 . . . ." S.C. Code Ann. § 16-11-420(A) (Supp. 2010). The Act also states, "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." S.C. Code Ann. § 16-11-420(B) (Supp. 2010).
The Act further provides:
(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 immunity provision at issue provides:
(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).
The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). Unless there is something in the statute requiring a different interpretation, the words used in a statute must be given their ordinary meaning. Id. When a statute's terms are clear and unambiguous on their face, there is no room for statutory construction and a court must apply the statute according to its literal meaning. Sloan v. Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007).
Black's Law Dictionary defines "immune" as "having immunity" or being "exempt from a duty or liability." Black's Law Dictionary (9th ed. 2009). "Prosecution" is defined as "a criminal proceeding in which an accused person is tried." Id.
The trial court found the plain meaning of the immunity provision was to shield a person from a "full blown criminal trial." Accordingly, the trial court found the only way this statutorily granted right could be meaningfully enforced was for the defendant to be able to raise immunity in a pre-trial motion.
Whether immunity under the Act should be determined prior to trial is an issue of first impression in this state. Further, the Act does not explicitly provide a procedure for determining immunity. In deciding this matter, we find guidance from several other states that have addressed similar statutory immunity provisions.
In Fair v. State, the Supreme Court of Georgia held the trial court erred in refusing to rule on the defendants' immunity[3] prior to trial. Fair v. State, 284 Ga. 165, 166, 664 S.E.2d 227, 230 (Ga. 2008). Particularly, the Fair court found that by the plain meaning of "immune from prosecution," the statute must be construed to bar criminal proceedings against persons who used force under the circumstances set forth in the statute, and that this determination must be made before the trial commences. Id.
In the recent decision of Dennis v. State, 51 So.3d 456 (Fla. 2010), the Supreme Court of Florida approved the reasoning of Peterson v. Florida, 983 So.2d 27 (Fla.1st D.C.A. 2008), where the First District Court of Appeal found that by enacting a statute[4] similar to the Act at issue here, the legislature intended to establish a true immunity and not merely an affirmative defense. The Dennis court therefore found the plain language of the statute grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to a trial. Dennis, 51 So.3d at 462. The Dennis court concluded that, where a defendant files a motion to dismiss on the basis of Florida's "Stand Your Ground" statute, the trial court should conduct a pre-trial evidentiary hearing to decide the factual question of the applicability of the statutory immunity. Id.
Likewise, we find that, by using the words "immune from criminal prosecution," the legislature intended to create a true immunity, and not simply an affirmative defense. We also look to the language of the statute that 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." We agree with the circuit court that the legislature intended defendants be shielded from trial if they use deadly force as outlined under the Act. Immunity under the Act is therefore a bar to prosecution and, upon motion of either party, must be decided prior to trial. Accordingly, we find the trial court properly made a pre-trial determination of respondent's immunity.
II. Respondent's immunity under the Act
The State argues the circuit court erred in finding respondent was entitled to immunity under the Act. We disagree.
The circuit court found that, applying any standard of proof, respondent would be entitled to immunity under the Act.
The proper standard of proof in determining immunity under the Act is also a novel issue in this state. Other states have addressed this matter. In Dennis, the Florida Supreme Court rejected the State's argument that the pre-trial hearing on immunity should test merely whether the State has probable cause to believe the defendant's use of force was not legally justified. Dennis, 51 So.3d at 463. Specifically, the Dennis court found the grant of immunity from "criminal prosecution" under the statute "must be interpreted in a manner that provides the defendant with more protection from prosecution for a justified use of force than the probable cause determination previously provided to the defendant by rule." Id. Accordingly, the court found the procedure set out in Peterson, supra, best effectuated the intent of the legislature. The Peterson court held that when a defendant raises the question of statutory immunity pre-trial, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. Peterson, 983 So.2d at 29.
Likewise, we hold that when a party raises the question of statutory immunity prior to trial, the proper standard for the circuit court to use in determining immunity under the Act is a preponderance of the evidence.
Turning to the facts of this case, we find there is evidence to support the circuit court's finding that respondent was entitled to immunity. Templeton's testimony and statements showed that, at the time the victim was shot, she was between the victim and respondent, trying to remove the victim from the dwelling. The victim, however, continued to force his way onto the porch. We find respondent showed by a preponderance of the evidence that the victim was in the process of unlawfully and forcefully entering respondent's home in accordance with § 16-11-440. Accordingly, the circuit court properly found respondent was entitled to immunity under the Act.
We further find the circuit court's order of dismissal was proper because it found respondent was entitled to immunity under the Act under any standard of proof. In other words, had the circuit court held respondent to a stricter standard of proof, such as clear and convincing evidence or even proof beyond a reasonable doubt, the circuit court would have nonetheless found respondent was entitled to immunity.
CONCLUSION
We conclude a pre-trial determination of immunity under the Act using a preponderance of the evidence standard is proper and that respondent was entitled to immunity under the Act. Accordingly, the findings of the circuit court are
AFFIRMED.
TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.
[1] S.C. Code Ann. §§ 16-11-410 to 450 (Supp. 2010).
[2] We find an order granting or denying a motion to dismiss under the Act is immediately appealable, as it is in the nature of an injunction. See S.C. Code Ann. § 14-3-330(4) (Supp. 2010) ("The Supreme Court . . . shall review upon appeal . . . an interlocutory order or decree . . . granting, continuing, modifying, or refusing an injunction . . . .").
[3] The defendants argued they were immune from prosecution under OCGA § 16-3-24.2, which provides in relevant part that "[a] person who uses threat or force in accordance with Code Section . . . 16-3-23 or . . . 16-3-24 shall be immune from criminal prosecution . . . ."
[4] See F.S.A. § 776.032 (Supp. 2010).
UPDATE: October 10, 2011
South Carolina Supreme Court Reverses Conviction for Self-Defense Shooting
NOTE: Members of, and contributors to, Grassroots GunRights South Carolina played a vital role in funding the defense of Jason Dickey. Grassroots of SC, Inc. is currently under a court injunction as a result of the case (currently under appeal):
Clarence Edward Looney and Grover E, Lown, Jr. v. GrassRoots of SC, Inc., Ed Kelleher, Robert Butler and Robert Holliday. Lexington County Court of Common Pleas at CASE No. 2011-CP-32-1393
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The SC Supreme Court has thrown-out the voluntary manslaughter conviction of Jason Dickey, a Columbia apartment building security guard who shot and killed an attacker in 2004.
The Court opined that Dickey acted in self-defense in the shooting of 24-year-old Joshua Boot of West Columbia. Dickey has served five years of a 16-year sentence. The opinion indicates that Dickey was confronted by two younger and larger drunk men who were advancing toward him. Dickey said Boot didn't reside in the complex, refused Dickey’s order to leave, and then came back after him with a bottle. The full opinion from the SC Supreme Court Website is provided below.
This case and the Duncan case will be explained in much greater detail in the next edition of our book.
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THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Jason Michael Dickey, Petitioner.
ON WRIT OF CERTIORARI
Appeal from Richland County
James W. Johnson Jr., Circuit Court Judge
Opinion No. 27047
Heard March 2, 2011 – Filed September 26, 2011
REVERSED
Lourie A. Salley III, of Lexington, for Petitioner.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina J. Catoe, and Daniel E. Johnson, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: Jason Michael Dickey (Petitioner) appeals the court of appeals' decision affirming his conviction of voluntary manslaughter. State v. Dickey, 380 S.C. 384, 669 S.E.2d 917 (Ct. App. 2008). We find Petitioner was entitled to a directed verdict on the issue of self-defense. Therefore, we reverse.
FACTUAL/PROCEDURAL BACKGROUND
In April 2004, Petitioner was employed as a security guard at Cornell Arms apartments in Columbia, where he also resided. Although not required by his employer for his duties, Petitioner carried a loaded pistol, for which he held a valid concealed weapons permit.
On April 29, 2004, Joshua Boot and his friend, Alex Stroud, met Amanda McGarrigle and Tara West while tailgating at a Jimmy Buffet concert. After several hours of heavy drinking, Boot and Stroud accompanied McGarrigle and West, who were roommates, back to their apartment at Cornell Arms. Stroud testified Boot was "pretty intoxicated" and had consumed up to twenty beers and several shots of tequila throughout the day. As McGarrigle and Boot sat on the couch in her apartment, a neighbor threw a water balloon through an open window, splashing Boot. The water balloon tossing was part of an ongoing joke between neighbors. However, the prank so angered Boot that he threatened to physically assault the person who splashed him.[1] Fearful of trouble, McGarrigle asked Boot to leave the apartment, and Boot refused. He instead went to find the culprit, in what McGarrigle described as an aggressive, angry manner. Boot began banging on neighbors' doors, which prompted McGarrigle to go to the security desk, where Petitioner was on duty, and ask Petitioner to evict her guest. McGarrigle, Petitioner, and McGarrigle's friend, Morteza Safaie, whom she met along the way, searched for Boot on several floors and eventually found him back in her apartment. Boot stepped outside into the hall and Petitioner identified himself as the security guard on duty and asked Boot to leave. According to Safaie and McGarrigle, who were standing in the hallway, Boot responded by shouting expletives at Petitioner and telling him "he couldn't make him do anything," then re-entering the apartment and slamming the door. Petitioner knocked on the door and again asked Boot to leave, without making any threatening comments or gestures or raising his voice. Boot again slammed the door in Petitioner's face. According to Stroud, who, at this point, had come out of West's bedroom, stated that Boot was "awfully" angry and Petitioner seemed "pretty unhappy." While standing outside the door to the apartment, Petitioner called the Columbia police to report the disturbance, and then asked McGarrigle and Safaie to go downstairs to let the officers inside the building. Meanwhile, inside the apartment, Stroud attempted to calm Boot and eventually convinced him they should leave. West witnessed Boot tuck a liquor bottle in his shorts before he exited the apartment.[2]
As Boot and Stroud walked toward the elevator, Petitioner kept his distance and the parties did not exchange words. However, Stroud testified Boot and Petitioner were "staring each other down." Petitioner chose not to ride with Stroud and Boot in the elevator, instead opting to take the stairs. The silence continued in the lobby as Petitioner followed several feet behind the men while they walked toward the exit. Petitioner testified that he noticed a Crown Victoria pass by the lobby windows and thought the police had arrived. He stated he followed Boot and Stroud outside so he could inform the police of the direction they were walking. According to Stroud, Petitioner stood in the vicinity of the Cornell Arms doormat watching them silently as they walked toward Sumter Street. Kristy Ann Murphy witnessed the scene from a bench located in front of the Cornell Arms doorway. She testified that Petitioner asked the men to leave in an unthreatening manner, while Boot shouted obscenities at Petitioner. Stroud testified that the derogatory comments Boot made about Petitioner were directed to Stroud only. After walking halfway down the block, Stroud turned around first and asked Petitioner, "[W]hy the f--- [are you] following [us]." Stroud testified that Petitioner just stood there, making no gestures or comments. Boot and Stroud then turned and started walking towards Petitioner quickly. Petitioner testified Boot threatened to "whip [his] a--." Stroud testified he made at most two steps, while Boot took two or three big steps, placing Boot nearer to Petitioner than Stroud. Stroud testified further that as Boot advanced toward Petitioner, he was in the mood to fight and planned to harm Petitioner. Petitioner, in turn, testified the two men were covering ground very quickly and if he turned his back he was afraid of being attacked from behind with no way to defend himself.[3] When Boot was approximately fifteen feet away, Petitioner pulled a gun from his pocket. Petitioner testified he pulled the gun to discourage the two men from attacking him. Stroud took a few steps back at the sight of the gun, but Boot continued to advance toward Petitioner in an aggressive manner. Petitioner testified he saw Boot reach under his shirt as he continued forward, and Petitioner feared he was reaching for a weapon.[4] Without warning, Petitioner fired a shot, striking Boot. After the first shot, Boot took another step toward Petitioner. Petitioner's second shot stopped Boot. Petitioner then fired a third shot as Boot dropped to his knees. Petitioner immediately put the gun back in his pocket and called 911.
The first officer to arrive at the scene heard the three shots. As soon as the officer exited his vehicle, Petitioner stated, "I shot him, I am security for the building. I have a concealed weapons permit, and the gun is in my right front pants pocket. I didn't have a choice. He came at me with a bottle." Investigators found a broken liquor bottle at the scene with a blood smear on the neck of the bottle matching Boot's DNA. According to the State's expert witness, smearing can occur when someone picks up an object or brushes against something.
Subsequently, a Richland County grand jury indicted Petitioner for murder. At the beginning of Petitioner's September 2006 trial, his counsel moved for the dismissal of Petitioner's murder charge pursuant to the recent enactment of the "Protection of Persons and Property Act," which codified the common law Castle Doctrine. S.C. Code Ann. § 16-11-410 (Supp. 2010). The circuit judge denied the motion, finding the Act did not apply to pending criminal cases. Petitioner's counsel twice moved for a directed verdict of acquittal on the ground that Petitioner was acting in self-defense when he shot Boot. The circuit judge denied both motions.
The circuit judge charged the jury on the crimes of murder and voluntary manslaughter, and on the affirmative defense of self-defense. Petitioner's counsel objected to the voluntary manslaughter charge, arguing there was no evidence to support this charge. Petitioner's counsel additionally challenged that the judge's self-defense instructions were inadequate. The circuit judge denied these motions, and the jury convicted Petitioner of committing voluntary manslaughter. The circuit judge sentenced Petitioner to sixteen years' imprisonment. The court of appeals affirmed. Dickey, 380 S.C. at 384, 669 S.E.2d at 917. Specifically, the court held the circuit judge: (1) properly denied Petitioner's motion for acquittal on the ground of self-defense; (2) sufficiently instructed the jury on the law of self-defense; (3) correctly submitted the charge of voluntary manslaughter to the jury; (4) adequately instructed the jury regarding the charge of voluntary manslaughter; and (5) properly refused to retroactively apply the "Protection of Persons and Property Act" to Petitioner's case. This Court granted Petitioner's petition for a writ of certiorari. Petitioner appeals all of the grounds upon which the court of appeals affirmed his conviction. Finding Petitioner was entitled to a directed verdict of acquittal on the ground of self-defense, we reach that issue only. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (appellate court need not address remaining issues when disposition of prior issue is dispositive).
STANDARD OF REVIEW
In criminal cases, the appellate court only reviews errors of law and is clearly bound by the trial court's factual findings unless the findings are clearly erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006).
ANALYSIS
"A defendant is entitled to a directed verdict when the state fails to produce evidence of the offense charged." State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). If there is any direct or substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the appellate court must find the case was properly submitted to the jury." Id. at 292–93, 25 S.E.2d at 648. However, when a defendant claims self-defense, the State is required to disprove the elements of self-defense beyond a reasonable doubt. Wiggins, 330 S.C. at 544–45, 500 S.E.2d at 492–93. We find the State did not carry that burden.
A person is justified in using deadly force in self-defense when:
(1) The defendant was without fault in bringing on the difficulty;
(2) The defendant . . . actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger;
(3) If the defense is based upon the defendant's actual belief of imminent danger, a reasonable prudent man of ordinary firmness and courage would have entertained the same belief . . . ; and
(4) The defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance.
Id. at 330 S.C. at 545, 500 S.E.2d at 493 (citing State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984)).
A. Fault in Bringing about the Harm
South Carolina recognizes a business proprietor's right to eject a trespasser from his premises. State v. Brooks, 252 S.C. 504, 510, 167 S.E.2d 307, 310 (1969) (citing State v. Rogers, 130 S.C. 426, 126 S.E. 329 (1925)). If the proprietor is "engaged in the legitimate exercise in good faith of his right to eject, he would in such case be without fault in bringing on the difficulty, and would not be bound to retreat." Id. (citing Rogers, 130 S.C. at 426, 126 S.E. at 329)). Therefore, to withstand a motion for directed verdict as to whether Petitioner, an agent of Cornell Arms, was at fault in bringing about the harm, the State had to disprove Petitioner's claim that he was ejecting Boot in good faith. Even viewing the facts in a light most favorable to the State, the State did not carry this burden.
The court of appeals stated that a jury could have reasonably found Petitioner's decision to exit the building "and brandish his loaded gun . . . was an act reasonably calculated to provoke a new altercation with Boot . . . ." However, the testimony is consistent that Petitioner was not brandishing[5] his gun when they were outside, but rather, he pulled the gun from its holster when Boot and Stroud turned and began advancing toward him in an aggressive manner. The State did not produce any evidence to contradict Petitioner's testimony he routinely carried the concealed weapon, and did not deliberately arm himself in anticipation of a conflict that evening. The record establishes Petitioner did not know Boot prior to his attempt to eject him and only did so in his capacity as a security guard, and upon request of a tenant. It is undisputed that Petitioner called the police before ejecting Boot and Stroud, and then immediately called 911 after firing the shots. Petitioner's stated reason for walking outside was to inform the police, whom he thought had arrived, of the direction Boot and Stroud were walking. The State did not rebut Petitioner's stated reason for his exit and, in fact, the only evidence the State offered to prove Petitioner's fault in bringing about the harm was the act of following Boot and Stroud outside. As Petitioner had the right to eject the trespassers from the premises, his decision to exit the building and stand on the doormat to ensure their departure cannot, in and of itself, be construed as acting in bad faith. Had Petitioner accompanied the ejection with threatening words or posture, a jury question may have arisen. See State v. Wiggins, 330 S.C. at 547, 500 S.E.2d at 494 (testimony that appellant threatened to "kick both [victim's and sister's] a--es" raised a jury question as to whether appellant was exercising good faith in ejecting victim). However, under these facts, we find Petitioner was exercising his right to eject trespassers in good faith and, as a matter of law, he was without fault in bringing about the difficulty.
B. Subjective and Objective Belief of Imminent Danger
We find that even the testimony most adverse to the defense, Stroud's testimony, established as a matter of law that Petitioner actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, and that a reasonable person of ordinary firmness would have entertained the same belief. "[W]ords accompanied by hostile acts may, depending on the circumstances, establish a plea of self-defense." State v. Fuller, 297 S.C. 440, 444, 377 S.E.2d 328, 331 (1989) (quoting State v. Harvey, 220 S.C. 506, 68 S.E.2d 409 (1951)). We believe such circumstances were present in this case. It is uncontroverted that Boot was highly intoxicated, acted aggressively over the course of the conflict, that he began advancing toward Petitioner quickly with the purpose of assaulting him, that he continued advancing toward Petitioner after Petitioner pulled the gun, and there was great disparity in the physical stature and capabilities of Boot and Petitioner. Furthermore, the State did not rebut Petitioner's testimony that he saw Boot reach under his shirt as he advanced. To the contrary, West testified she saw Boot place a bottle in his shorts as he left the apartment, and a broken bottle was found on the scene with Boot's blood smear on the neck.[6] Petitioner testified he did not see what Boot was reaching for when he fired the shots, but because Boot continued advancing after seeing the gun, Petitioner believed he was reaching for a deadly weapon. A person has the right to act on appearances, even if the person's belief is ultimately mistaken. State v. Fuller, 297 S.C. 440, 443–44, 377 S.E.2d 328, 331 (1989). "Once the right to fire in self-defense arises, a defendant is not required to wait until his adversary is on equal terms or until he has fired or aimed his weapon in order to act." State v. Starnes, 340 S.C. 312, 322, 531 S.E.2d 907, 913 (2000) (citing State v. Hendrix, 270 S.C. 653, 244 S.E.2d 503 (1978)). There is uncontroverted testimony that Petitioner acted upon the appearance that Boot had a deadly weapon.
Petitioner testified that, under the circumstances and appearances, he believed he was in actual danger of death or serious bodily harm. We find it reasonable that Petitioner made such an assumption and that a person of Petitioner's stature and limited agility would entertain the same fear when faced with an attack by a belligerent, intoxicated, more agile, and younger male, who appeared to be reaching for a weapon. The State certainly did not rebut these elements of self-defense beyond a reasonable doubt, as the law requires. Therefore, we find that as a matter of law, Petitioner actually believed he was in imminent danger of losing his life, or sustaining serious bodily injury, and that a reasonable person would have entertained the same belief.
C. Duty to Retreat
A defendant is not required to retreat if he has "no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in [the] particular instance." Wiggins, 330 S.C. at 545, 500 S.E.2d at 493 The court of appeals found "the State provided evidence that, if believed, tended to show Petitioner had other probable means of avoiding the danger than acting as he did." However, the court never specified what evidence it relied on to support that finding. Instead, it focused on whether or not Petitioner was absolved of his duty to retreat under the Castle Doctrine. We do not think it necessary to determine whether curtilage can extend to a public sidewalk, because we find the State failed to disprove beyond a reasonable doubt that Petitioner had no other probable means of avoiding the danger.
As discussed previously, Petitioner was not at fault in bringing about the harm by exiting the building. Once outside, Petitioner was faced with a situation where two younger, intoxicated, and physically superior men were advancing toward him, one with the clear intent to assault him and who was undeterred at the sight of Petitioner's gun. Moreover, the State did not disprove Petitioner's testimony that Boot reached for something under his shirt as he continued toward Petitioner. The testimony is consistent that Boot moved toward Petitioner at a fast pace. Had Petitioner turned his back, he would have likely been attacked from behind as he tried to get through the first set of glass doors. Even if he were able to pass through the first set of doors unscathed, he would likely have been trapped in the breezeway behind the second set of locked doors. Petitioner was classified as permanently disabled and testified that he could not run. Therefore, the uncontroverted facts establish as a matter of law that Petitioner had no other probable means of avoiding the danger other than to act as he did.
CONCLUSION
For the reasons set forth above, we find the State failed to disprove the elements of self-defense beyond a reasonable doubt. Even viewing the facts in a light most favorable to the State, the evidence establishes that Petitioner shot and killed Boot in self-defense. Therefore, we reverse the court of appeals and overturn Petitioner's conviction.
REVERSED.
KITTREDGE and HEARN, JJ., concur. PLEICONES, J., concurring in a separate opinion. BEATTY, J., dissenting in a separate opinion.
JUSTICE PLEICONES: I concur, but would reverse on the ground the Court of Appeals erred in upholding the trial judge's decision to charge voluntary manslaughter. Moreover, were I to reach the issues, I would find reversible error in the unconstitutional jury charge on the facts, and I would find that while the evidence established the first three elements of self-defense as a matter of law, there was a jury issue whether petitioner was in the building's curtilage such that he had no duty to retreat. See e.g., State v. Brooks, 252 S.C. 504, 167 S.E.2d 307 (1969).
In my opinion, the dispositive issue here is that of the voluntary manslaughter charge. Taking the evidence in the light most favorable to the State, it shows that at the request of a tenant, petitioner located the combative, intoxicated victim and asked him to leave. Petitioner endured the victim's obscenities, insults, and threats of physical violence calmly, and called the local police to report the incident. As the man began to leave the building, petitioner chose not to enter the elevator with him but instead took the stairway. Petitioner then followed the victim and his companion as they exited the building. As one would expect from a security guard who had just escorted such an individual off the premises, petitioner stood outside the building to make sure the men actually left the area. Compare State v. Brooks, supra (right to eject patron from business includes following patron outside).
When the victim and his friend turned and approached petitioner, petitioner felt "afraid" and "outnumbered," then shot the victim.
In my view, there is no evidence that petitioner was so angry and fearful that he lost control, and was rendered incapable of cool reflection. Instead, the evidence reflects that petitioner retained his composure despite the threats and language directed at him by the victim, and only shot when the victim and his friend turned back and approached petitioner outside the building whose occupants he was paid to guard. After the shooting, petitioner again called 911, and reported the events. I simply see no evidence of fear manifesting itself in an uncontrollable impulse to do violence. In my view, the only evidence is that petitioner, admittedly acting out of fear, nonetheless acted in a deliberate, controlled manner. As such, he could not, as a matter of law, be guilty of voluntary manslaughter. State v. Starnes, 388 S.C. 590, 698 S.E.2d 604 (2010).
I concur in the decision to reverse.
JUSTICE BEATTY: For reasons that will be discussed, I dissent as I would affirm the decision of the Court of Appeals and, in turn, Dickey's conviction for voluntary manslaughter.
In challenging the decision of the Court of Appeals, Dickey raises seven issues. In response to the divergent views of this Court, I have consolidated the issues under the following two headings: (1) self-defense, which, if found as matter of law, would be dispositive as to the charge of murder; and (2) voluntary manslaughter, a lesser-included offense of murder.
I. Self-Defense
A. Motion for a Directed Verdict of Acquittal
Dickey contends the Court of Appeals erred in finding the trial judge properly refused to direct a verdict of acquittal based on self-defense. In conjunction with his self-defense arguments, Dickey claims the Court of Appeals erred in failing to address whether a glass bottle should be considered a deadly weapon under South Carolina law as Dickey believed Boot was armed with a large glass bottle that could have been used to inflict serious bodily harm or death.
"A defendant is entitled to a directed verdict when the [S]tate fails to produce evidence of the offense charged." State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the appellate court must find the case was properly submitted to the jury. Id. at 292-93, 625 S.E.2d at 648. "When reviewing a denial of a directed verdict, this Court views the evidence and all reasonable inferences in the light most favorable to the [S]tate." Id. at 292, 625 S.E.2d at 648.
Once raised by the defense, the State must disprove self-defense beyond a reasonable doubt. State v. Burkhart, 350 S.C. 252, 261, 565 S.E.2d 298, 303 (2002). There are four elements required by law to establish a case of self-defense. State v. Davis, 282 S.C. 45, 46, 317 S.E.2d 452, 453 (1984). The four elements are:
First, the defendant must be without fault in bringing on the difficulty. Second, the defendant must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger. Third, if his defense is based upon his belief of imminent danger, a reasonably prudent man of ordinary firmness and courage would have entertained the same belief. If the defendant actually was in imminent danger, the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike the fatal blow in order to save himself from serious bodily harm or losing his own life. Fourth, the defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance. If, however, the defendant was on his own premises he had no duty to retreat before acting in self-defense.
Id.; State v. Hendrix, 270 S.C. 653, 657-58, 244 S.E.2d 503, 505-06 (1978).
Under the Castle Doctrine, "[o]ne attacked, without fault on his part, on his own premises, has the right, in establishing his plea of self-defense, to claim immunity from the law of retreat, which ordinarily is an essential element of that defense." State v. Gordon, 128 S.C. 422, 425, 122 S.E. 501, 502 (1924). Our appellate courts have recognized that the rule also applies to a person's place of business. Id.; State v. Brooks, 252 S.C. 504, 167 S.E.2d 307 (1969). The absence of a duty to retreat also extends to the curtilage of one's home or place of business. State v. Wiggins, 330 S.C. 538, 548 n.15, 500 S.E.2d 489, 494 n.15 (1998). Curtilage includes outbuildings, the yard around a dwelling, a garden of the dwelling, or the parking lot of a business. Id.
Applying the foregoing to the facts of the instant case, I find that all four elements of self-defense were not established as a matter of law to warrant a directed verdict. As to the first element of self-defense, a question of fact was created as to whether Dickey was without fault in bringing on the conflict. The State presented undisputed evidence that Dickey followed Boot and Stroud after they left the apartment building. Because Dickey could have remained inside behind the safety of the locked doors to wait for the police, there is evidence that Dickey could have avoided the fatal confrontation.
I disagree, however, with the Court of Appeals' finding that Dickey's actions were "reasonably calculated to provoke a new altercation with Boot, and that Dickey intended to engage in mutual combat." Dickey, 380 S.C. at 394, 669 S.E.2d at 923.
First, this ground was neither raised to the trial judge nor submitted to the jury. Secondly, the Court of Appeals appears to have found that mutual combat was established as a matter of law, which would have precluded Dickey's reliance on self-defense. See State v. Taylor, 356 S.C. 227, 232, 589 S.E.2d 1, 3 (2003) ("Whether or not mutual combat exists is significant because the plea of self-defense is not available to one who kills another in mutual combat." (citation omitted)); State v. Graham, 260 S.C. 449, 450, 196 S.E.2d 495, 495 (1973) ("To constitute mutual combat there must exist a mutual intent and willingness to fight and this intent may be manifested by the acts and conduct of the parties and the circumstances attending and leading up to the combat." (citation omitted)). In contrast to the Court of Appeals, I find there was a question of fact as to the requisite intent for the doctrine of mutual combat; thus, mutual combat could have been submitted to the jury. Accordingly, I believe the Court of Appeals' reference to this doctrine was harmless as it did not negate the court's correct finding regarding the first element of self-defense.
In terms of the second and third elements, i.e., Dickey's belief that he was in imminent danger of losing his life or sustaining serious bodily injury, the State presented evidence to create a question of fact as to the "reasonableness" of Dickey's belief that he needed to shoot Boot.
First, the evidence was disputed as to whether Boot was in possession of a deadly weapon and whether he was reaching for one prior to the shooting. Although there is case law to support Dickey's assertion that the glass bottle constituted a deadly weapon, I note that this issue was neither raised to nor ruled upon by the trial judge. Thus, it was not properly preserved for appellate review. See State v. Moore, 357 S.C. 458, 464, 593 S.E.2d 608, 612 (2004) (holding an issue must be raised to and ruled upon by the trial court to be preserved for review).
Even assuming the issue was preserved and the Court of Appeals erred in failing to rule on it, it is inconsequential whether the bottle constituted a deadly weapon as a matter of law. Moreover, the jury was specifically instructed that "a deadly weapon is any article, instrument or substance that is likely to cause death or great bodily harm." Furthermore, the State presented evidence that Dickey did not consider himself in imminent danger as Dickey readily exited the locked building and continued the confrontation outside of the apartment building.
As to the fourth element, the "duty to retreat," I find the State presented evidence that Dickey was not immune as a matter of law under the Castle Doctrine as Dickey was not within the curtilage of the apartment building at the time of the shooting. At the time of the shooting, Dickey was on the doormat outside the front door of Cornell Arms. According to the testimony, the doormat was placed near the front of the building on a public sidewalk. As recognized by the Court of Appeals, it is a novel issue in this state as to whether a public sidewalk in front of an apartment building is considered curtilage. Dickey, 380 S.C. at 395, 669 S.E.2d at 924. In ruling that the public sidewalk did not constitute curtilage, the Court of Appeals relied on our state's jurisprudence establishing that curtilage does not extend to a public street. The Court of Appeals also cited cases from other jurisdictions where appellate courts "refused to hold there is no duty to retreat from a sidewalk in front of a business or residence." Id. at 396-97, 669 S.E.2d at 924.
For several reasons, I agree with the decision of the Court of Appeals. Initially, I would note that the court properly relied on this state's case law discussing curtilage with respect to public streets. The underlying theory in these cases is that a defendant is not immune from the duty to retreat on property where he did not have the right to eject his adversary. A public sidewalk falls within this category as it constitutes public land from which a person could not eject another person. Furthermore, the out-of-state cases cited by the Court of Appeals as well as other secondary authority support this proposition. See Jeffrey F. Ghent, Annotation, Homicide: Duty to Retreat as Condition of Self-Defense When One is Attacked at His Office, or Place of Business or Employment, 41 A.L.R.3d 584 (1972 & Supp. 2011) (analyzing the doctrine of retreat within the general rules of self-defense and discussing state cases where courts have considered where a person attacked at his office or place of business is precluded from relying on his right to self-defense by a duty of retreat). Moreover, regardless of the position of the Cornell Arms doormat,[7] Dickey was on the public sidewalk at the time he shot Boot. Once Dickey left the building and walked onto the public sidewalk, he was under a duty to retreat as the sidewalk was not part of the curtilage of his residence or business.
Furthermore, there is undisputed, quantifiable evidence that Dickey could have easily retreated without incident. The circumstances just prior to the shooting establish that Dickey was aware of the potential threat and had sufficient time to retreat. Dickey testified that he watched Boot and Stroud walk to the corner of Pendleton and Sumter Street before they turned around. At that point, according to crime scene investigators, Boot and Stroud would have been approximately 68 feet from the Cornell Arms doormat on which Dickey stood. Dickey testified that as Boot and Stroud came back in his direction they continued their profane rant and threatened to "whip [his] a--." Once Dickey realized that Boot and Stroud were heading back in his direction in a menacing manner, it would have been reasonable for Dickey to retreat. Thus, without question, Dickey had a duty to retreat; however, the question is whether Dickey could do so safely. This question was one for the jury to resolve.
Additionally, I find disingenuous the majority's reliance on Dickey's claimed disability as support for its holding regarding self-defense. Although Dickey testified he could not run as a result of this disability, there is evidence to the contrary in that he was able to descend several flights of stairs to the lobby in the same time it took Boot and Stroud to ride the elevator.
In view of the foregoing, I agree with the Court of Appeals that Dickey was not entitled to a directed verdict based on his claim of self-defense.
B. Application of "Stand Your Ground" Law
In conjunction with his "duty to retreat" challenges, Dickey argues the Court of Appeals erred in finding the trial judge properly refused to retroactively apply the "Stand Your Ground" law to this case.
Although Dickey refers to the Act as the "Stand Your Ground" law, it is identified in the South Carolina Code as the "Protection of Persons and Property Act." S.C. Code Ann. § 16-11-410 (Supp. 2010). This Act states, "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 and to extend the doctrine to include an occupied vehicle and the person's place of business." Id. § 16-11-420(A). The Act became effective on June 9, 2006, and contained a "Savings Clause," which provides in pertinent part:
The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide.
Act No. 379, 2006 S.C. Acts 2909.
Because this Act was promulgated prior to Dickey's September 2006 trial, defense counsel moved for the trial judge to dismiss Dickey's case based on the "immunity from criminal prosecution" created by the Act. The trial judge denied the motion, finding the Act did not apply as Dickey's case had been pending since April 2004 and, thus, was precluded from the Act's application.
The Court of Appeals held the trial judge properly refused to apply the Act retroactively. In so ruling, the court found the Act creates substantive rights for citizens and, therefore, the Act would only operate retroactively if there was a clear indication from the Legislature that this was intended. Dickey, 380 S.C. at 404-05, 669 S.E.2d at 928. Referencing the Act's savings clause, the court concluded that "the Legislature clearly manifested its intent that the Act be applied prospectively." Id. at 405, 669 S.E.2d at 928. Accordingly, the court held the Act should not have been applied to Dickey's case as the criminal prosecution was pending before the effective date of the Act. Id.
I find the Court of Appeals properly affirmed the trial judge's decision to preclude the application of the Act as the Legislature's intent is clear and unambiguous that the Act is to be applied prospectively. See State v. Varner, 310 S.C. 264, 266, 423 S.E.2d 133, 134 (1992) (recognizing that prospective application is presumed absent a specific provision or clear legislative intent to the contrary). In any event, the evidence presented clearly showed that Dickey was not in his home, business, or vehicle at the time of the shooting.
C. Sufficiency of Self-Defense Jury Instructions
Finding the trial judge properly submitted self-defense to the jury, I now assess the sufficiency of the judge's jury instructions.
(1) "Right to Act on Appearances"
In challenging the judge's instructions, Dickey argues the Court of Appeals erred in finding the instruction on the right to act on appearances was adequate "where the instruction did not explain the proper test, which is especially critical where Dickey could see Boot reaching under his shirt." Additionally, Dickey asserts the Court of Appeals "failed to recognize that the right to act on appearances is a separate issue from the second and third elements of self-defense regarding actual danger and reasonable belief of danger."
As an initial matter, I believe Dickey is barred from raising certain arguments to this Court as they were not presented to the trial judge or the Court of Appeals. See State v. Haselden, 353 S.C. 190, 196, 577 S.E.2d 445, 448 (2003) (holding a defendant may not argue one ground at trial and another on appeal).
At trial, Dickey's counsel submitted two requests to charge on the right to act on appearances. Although the trial judge instructed the jury on the right to act on appearances, he did not use the specific language requested by Dickey.[8] On appeal, Dickey generally argued that the trial judge "erred by refusing to adequately charge on appearances." Accordingly, I confine my review of this issue solely to a determination of whether the trial judge's instruction on the right to act on appearances adequately covered Dickey's requests to charge.
To warrant reversal, a trial judge's refusal to give a requested jury charge must be both erroneous and prejudicial to the defendant. Burkhart, 350 S.C. at 263, 565 S.E.2d at 304. "Failure to give requested jury instructions is not prejudicial error where the instructions given afford the proper test for determining the issues." Id. An appellate court will not reverse the trial judge's decision regarding a jury charge absent an abuse of discretion. State v. Pittman, 373 S.C. 527, 570, 647 S.E.2d 144, 166 (2007).
Turning to the facts of the instant case, I agree with the decision of the Court of Appeals that the trial judge sufficiently instructed the jury on the right to act on appearances as the instruction essentially "tracked" the language of this Court's opinion in State v. Jackson, 227 S.C. 271, 278, 87 S.E.2d 681, 684 (1955).[9] Notably, Dickey cited Jackson in support of his two requests. Given the judge's instruction covered the substance of Dickey's requests, the judge's failure to charge the requests did not constitute reversible error.
(2) "Curtilage/Duty to Retreat"
Dickey asserts the Court of Appeals erred in finding the trial judge correctly refused to instruct the jury on curtilage. In support of this assertion, Dickey claims the Court of Appeals erred in holding that "the duty to retreat was adequately charged based solely on its conclusion that the public sidewalk was not curtilage."
At trial, Dickey's counsel requested the following instruction on curtilage:
The absence of a duty to retreat extends to the curtilage of the dwelling or place of business. The curtilage is the area of land adjoining a dwelling or business, which includes porches, outbuildings, yards, gardens and parking lots.
Although the trial judge declined this instruction, he charged the jury on the duty to retreat:
I would charge you that if a defendant is on his own premises or if a defendant is on his own place of business that the defendant had no duty to retreat before acting in self-defense.
As previously discussed, I agree with the Court of Appeals' ruling that Dickey was not within the curtilage of the apartment building as he was on a public sidewalk at the time of the shooting. Even if curtilage should have been charged, I find Dickey's request to charge was an incorrect statement of law. The charge expanded this state's definition of curtilage by adding the phrase "the area of land adjoining a dwelling or business." See Wiggins, 330 S.C. at 548 n.15, 500 S.E.2d at 494 n.15 (defining curtilage to include outbuildings, the yard around a dwelling, a garden of the dwelling, or the parking lot of a business); cf. State v. Brooks, 79 S.C. 144, 149, 60 S.E. 518, 520 (1908) (stating that "one on his land, adjoining a public road, if assaulted by another who is on such road, is bound to retreat before taking the life of his adversary if there is probability of his being able to escape without losing his life or suffering grievous bodily harm" given "he would not have had the right to eject his adversary from the place where he had a right to be").
Accordingly, I believe the Court of Appeals correctly found that self-defense was properly submitted to the jury and the trial judge sufficiently charged the requisite elements.
II. Voluntary Manslaughter
In view of my conclusion that Dickey was not entitled to a directed verdict of acquittal based on self-defense and the instructions regarding self-defense do not warrant reversal, the question becomes whether the trial judge erred in submitting the lesser-included offense of voluntary manslaughter to the jury or committed error in the substance of the jury instructions.
A. Submission of Voluntary Manslaughter to the Jury
Dickey asserts the Court of Appeals erred in "failing to reconcile that fear can constitute heat of passion under Wiggins with self-defense as a matter of law under Hendrix." In support of this assertion, Dickey claims the fear required for voluntary manslaughter "must be considerably greater in degree or kind than the rational fear" required for self-defense. Specifically, Dickey bs or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.elieves that "it must be an irrational fear that causes a person to lose control of himself temporarily." He further contends the Court of Appeals erred in finding there was "ample evidence" of heat of passion to support a charge of voluntary manslaughter. Essentially, Dickey avers the evidence supports a finding that "he either shot with malice or in self-defense"; therefore, the jury should not have been instructed on voluntary manslaughter.
"Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation." Pittman, 373 S.C. at 572, 647 S.E.2d at 167 (citation omitted). "Heat of passion alone will not suffice to reduce murder to voluntary manslaughter." Id. "Both heat of passion and sufficient legal provocation must be present at the time of the killing." Id. "The sudden heat of passion, upon sufficient legal provocation, which mitigates a felonious killing to manslaughter, while it need not dethrone reason entirely, or shut out knowledge and volition, must be such as would naturally disturb the sway of reason, and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called an uncontrollable impulse to do violence." Id.
"To warrant the court in eliminating the offense of manslaughter it should very clearly appear that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter." Id. at 572, 647 S.E.2d at 168 (citation omitted). "In determining whether the act which caused death was impelled by heat of passion or by malice, all the surrounding circumstances and conditions are to be taken into consideration, including previous relations and conditions connected with the tragedy, as well as those existing at the time of the killing." State v. Norris, 253 S.C. 31, 35, 168 S.E.2d 564, 566 (1969).
After the Court of Appeals issued its decision as to Dickey's case, this Court clarified the law with respect to whether fear can constitute sudden heat of passion. State v. Starnes, 388 S.C. 590, 698 S.E.2d 604 (2010), cert. denied, 131 S. Ct. 1504 (2011).
In Starnes, the defendant appealed his two murder convictions arguing, in part, that the trial judge erred in failing to charge the jury on the law of voluntary manslaughter. Id. at 596, 698 S.E.2d at 607-08. Starnes claimed he was entitled to the charge as he testified that when one of the victims pointed a gun at him, he felt threatened and was in fear; thus, the threat of imminent deadly assault was sufficient to submit the charge of voluntary manslaughter to the jury. Id. at 596, 698 S.E.2d at 608.
Although the Court found the trial judge properly refused to charge voluntary manslaughter, it clarified the law concerning "how a defendant's fear following an attack or a threatening act relates to voluntary manslaughter." Id. at 597, 698 S.E.2d at 608. Specifically, the Court stated:
We reaffirm the principle that a person's fear immediately following an attack or threatening act may cause the person to act in a sudden heat of passion. However, the mere fact that a person is afraid is not sufficient, by itself, to entitle a defendant to a voluntary manslaughter charge. Consistent with our law on voluntary manslaughter, in order to constitute "sudden heat of passion upon sufficient legal provocation," the fear must be the result of sufficient legal provocation and cause the defendant to lose control and create an uncontrollable impulse to do violence. Succinctly stated, to warrant a voluntary manslaughter charge, the defendant's fear must manifest itself in an uncontrollable impulse to do violence.
A person may act in a deliberate, controlled manner, notwithstanding the fact that he is afraid or in fear. Conversely, a person can be acting under an uncontrollable impulse to do violence and be incapable of cool reflection as a result of fear. The latter situation constitutes sudden heat of passion, but the former does not. Evidence that fear caused a person to kill another person in a sudden heat of passion will mitigate a homicide from murder to manslaughter-it will not justify it. This is the distinction between voluntary manslaughter and self-defense. We reiterate that evidence of self-defense and voluntary manslaughter may coexist and that a charge on self-defense and voluntary manslaughter may be warranted.
Id. at 598-99, 698 S.E.2d at 609 (second emphasis added).
Applying Starnes to the facts of the instant case, I find the Court of Appeals correctly affirmed the trial judge's decision to submit voluntary manslaughter to the jury as a lesser-included offense of murder. Initially, I note that Dickey conceded the element of sufficient legal provocation; thus, I confine my analysis to the remaining element of heat of passion.
I find the State presented evidence from which the jury could have determined that Dickey's fear manifested itself in an uncontrollable impulse to do violence. Dickey testified that he was "afraid of being hurt or killed." In addition to evidence of Dickey's fear, West and McGarrigle claimed that Dickey looked "angry" and appeared "irritated" during the encounter outside of the apartment. Furthermore, over the course of a short time-period, Dickey endured Boot's profane verbal attack and threats of violence, thus, rendering Dickey incapable of cool reflection as a result of his anger and fear of Boot. In light of this evidence, I disagree with the majority's conclusion that Dickey "acted in a deliberate, controlled manner." It cannot be said that there was no evidence whatsoever tending to reduce the crime from murder to manslaughter.
B. Trial Judge's Use of an "Illustration" in Charge
In concluding that the trial judge properly submitted the charge of voluntary manslaughter to the jury, the analysis turns to the substance of the judge's instruction.
Dickey argues the Court of Appeals erred in finding the trial judge's illustration during the voluntary manslaughter portion of his charge was not an improper comment on the facts of the case. Specifically, Dickey challenged the following language in the judge's charge:
By way of illustration and I would point out this is by illustration alone, that if an unjustifiable assault is made with violence with the circumstances of indignity upon a man's person and the party so assaulted kills the aggressor the crime will be reduced to manslaughter.
Dickey claims the illustration was an unconstitutional[10] comment on the facts of the case given "the undisputed nature of the facts and the judge's directive that the exact facts of the case 'will be' manslaughter."
The Court of Appeals rejected Dickey's challenge. In so ruling, the court found the charge, taken as a whole, was not erroneous as it was "unlikely that a reasonable juror would have singled out the illustration portion of the charge and interpreted it as the court's opinion on the facts of this case or as an instruction on the weight to be given to the evidence." Dickey, 380 S.C. at 402-03, 669 S.E.2d at 927.
For several reasons, I agree with the Court of Appeals' finding that the judge's "illustration" did not constitute reversible error. First, the judge was extremely thorough in his instructions and emphasized to the jurors that they were the arbiters of the facts. Secondly, the judge clearly instructed the jury that his instruction was "by illustration alone." Finally, the judge did not impermissibly indicate his opinion as to the weight or sufficiency of the evidence, Dickey's guilt, or any fact in controversy. Significantly, the judge instructed the jury that he was not permitted to have any opinions regarding the facts of the case and that the jury should not construe anything he said during trial as an opinion regarding the facts. See State v. Jackson 297 S.C. 523, 526, 377 S.E.2d 570, 572 (1989) ("Under South Carolina law, it is a general rule that a trial judge should refrain from all comment which tends to indicate to the jury his opinion on the credibility of the witnesses, the weight of the evidence, or the guilt of the accused.").
Based on the foregoing, I would affirm the decision of the Court of Appeals.
[1] Stroud did not witness or hear any commotion concerning the water balloon because he was in West's bedroom at the time.
[2] Stroud did not see Boot pick up a bottle, but noticed a fifth of vodka on the coffee table earlier in the night.
[3] Boot was six feet, one inch tall and weighed between 200 and 210 pounds. Petitioner was five feet, eleven inches tall, and weighed 275 pounds. In 2001, the Veteran's Affairs Administration classified Petitioner as thirty percent disabled after he was diagnosed with patella syndrome and underwent several corrective operations, leaving his right foot partially paralyzed. Due to this disability, Petitioner testified he was unable to run. Furthermore, two sets of double doors blocked his entry into Cornell Arms. The first set of doors open into a breezeway and were not locked. However, the second set of doors could only be opened with a key because they locked at 5:00 p.m. each night for security reasons. At the time of death, Boot had a blood alcohol level of .203, over twice the legal limit.
[4] Stroud testified he did not see anything in Boot's hands when he fell. However, Stroud was behind Boot as Boot advanced. Murphy, who at this point was hurrying to the door, fearful of an ensuing fight, stated she may have seen Boot reach under his shirt for something, but was unsure.
[5] Brandish is defined as "1. to shake or wave (as a weapon) menacingly 2. to exhibit in an ostentatious, shameless, or aggressive manner." Webster's Third New International Dictionary 268 (2002).
[6] Stroud's testimony that he did not notice Boot pick up a bottle when he left the apartment and did not see anything in Boot's hand after he fell did not affirmatively refute the claims of West and Dickey.
[7] Dickey has asserted the Cornell Arms mat was flush with the front of the building and, therefore, not on the sidewalk. The position of the doormat or the overhang is not dispositive on the issue of curtilage. If this argument were taken to its logical extreme, curtilage would not be determined by the underlying property but rather the position of a business's accoutrements.
[8] The trial judge instructed the jury on the right to act on appearances as follows:
In deciding whether the defendant was or believed that he was in imminent danger of death or serious bodily injury you should consider all of the facts and circumstances surrounding the offense including the physical condition and the characteristics of the defendant and the victim. . . . [I]t does not have to appear that the defendant was actually in danger. It is enough if the defendant believed that he was in imminent danger and a reasonably prudent person of ordinary firmness and courage would [have] had the same belief. A defendant has the right to act on appearances even though the defendant's beliefs may have been mistaken.
[9] In Jackson, this Court held:
The test is not whether there was testimony of an intended attack but whether or not the appellant believed he was in imminent danger of death or serious bodily harm, and he is not required to show that such danger actually existed because he had a right to act upon such appearances as would cause a reasonable and prudent man of ordinary firmness and courage to entertain the same belief.
Jackson, 227 S.C. at 278, 87 S.E.2d at 684.
[10] See S.C. Const. art. V, § 21 ("Judges shall not charge juries in respect to matters of fact, but shall declare the law.").
UPDATE: February 10, 2010
Guns in all Units of the National Park and National Wildlife Reserve System
On February 22, a new law goes into effect regarding guns in units of the national park and national wildlife refuge systems. The new law repeals Department of Interior rules that have long prohibited Americans from possessing readily available firearms for self-defense in these units. Units include national parks, wildlife refuges, battlefields, military parks, historic sites, trails, monuments and any other area under either national system. Keep in mind that this article primarily focuses on carrying handguns for personal defense.
People who are otherwise without a legal disability will now be able to possess, carry and transport firearms in all units, in accordance with state law. If you have a South Carolina CWP (or one from a state with reciprocity), you can carry a concealable weapon, concealed, according to South Carolina CWP law. Generally, this means that you can carry a concealable weapon, concealed on or about your person.
Alternatively, if you do not have a valid CWP (or if you chose not to carry according to your CWP), you can possess firearms in accordance with applicable S.C. Law for non-CWP holders. Generally, non-CWP holders can have a handgun in their vehicle if it is stored in a closed glove compartment, closed console, or in the trunk (luggage area for SUVs and station wagons) in a closed container with an integral fastener. S.C. Law also allows a hunter or fisherman to carry a handgun (concealed or openly) while traveling to and from hunting or fishing. However, that law only protects the possessor if he has a valid license and is either hunting or fishing or going directly to or from that activity (unlikely in units).
Our book, South Carolina Gun Law explains how to carry with or without a CWP while in the state. However, if you want to visit a unit in another state, you must follow the law for that state.
While it is now clearly legal to carry on the grounds of a unit, carrying inside the buildings of the units is less clear. Debate exists about the definition of federal facilities (where firearms remain prohibited under a conflicting federal law). Without further definition, you are in a legal gray area if you carry inside the buildings. On one extreme, it’s probably unlikely that a port-a-potty located in a remote area would ever be ruled a federal facility. However, what about a staffed information center? Currently, you simply must weigh the benefit of carrying your firearm against the risk of getting caught in a building that is someday ruled a federal facility.
Before you visit a unit, check the unit’s website (see nps.gov) or call its headquarters for its policy on firearms inside buildings. National Park System units in South Carolina include: Fort Sumter National Monument, Charles Pinckney National Historic Site, Congaree National Park, Ninety-Six National Historic Site, Overmountain Victory National Historic Trail, Kings Mountain National Military Park, and Cowpens National Battlefield. National Wildlife Refuge System units in South Carolina include: Savannah National Wildlife Refuge, Tybee National Wildlife Refuge, Pinckney Island National Wildlife Refuge, Ace Basin National Wildlife Refuge, Cape Romain National Wildlife Refuge, Waccamaw National Wildlife Refuge, Santee National Wildlife Refuge, and Carolina Sandhills National Wildlife Refuge.
UPDATE: August 23, 2009
KANSAS now recognizes South Carolina NON-RESIDENT CWPs.
This update to the SC Gun Law book is only directed at those who are non-South Carolina residents and hold a South Carolina qualified non-resident CWP.
Kansas has been a reciprocity state with South Carolina. However, Kansas only gave reciprocity to those South Carolina residents who held a Resident CWP. In other words, those non-South Carolina residents who held a South Carolina qualified non-resident CWP were not given reciprocity under that CWP.
However, as the result of Kansas Attorney General Steve Six’s analysis and formal opinion of Kansas law, Kansas now recognizes those South Carolina non-residents who hold a qualified non-resident South Carolina CWP.
If you have any questions, please feel free to contact us.
UPDATE July 18, 2009.
SOME NEW RULES FOR SCHOOLS
In the spring of 2009, the South Carolina Legislature passed, and Governor Sanford signed, Senate Bill 593. The new law decriminalizes bringing guns onto school grounds for Concealed Weapons Permit holders under certain circumstances. You should still read the Rules for Schools in South Carolina Gun Law but also use the following as a supplement to the book. This supplement and the book complement each other and both should be understood together.
The context of Senate Bill 593.
Prior to the passage of S. 593, many parents dropping-off kids for school, students at colleges, teachers going to work and anybody else required to be on school property had a problem. The problem was that the South Carolina Code of Laws made it illegal to have a firearm on any grounds owned, operated or controlled by a school (except if you had permission from the authorities in charge of the premises or property). So, while parents might have otherwise been legal possessing a firearm either on their person with a Concealed Weapons Permit or in the glove compartment or console while driving the children to school, the same firearm became illegal if the parent drove onto a drop off area on school premises. Further complicating the process was that it is often difficult to determine where school premises begin and end. This situation left the parents in the unfortunate position of having to choose between breaking the law by entering school property with a firearm or forfeiting ts or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.heir natural right to arms as protected by the Second Amendment and the South Carolina Constitution. Similarly, teachers and college students who could otherwise lawfully carry a firearm off campus were required to forfeit their right to keep and bear arms the instant that they crossed onto school premises.
What does S. 593 do?
S. 593 amends South Carolina criminal law to provide an exception to the prohibition against certain weapons on school grounds under certain circumstances. Specifically, S. 593 amends Sections 16-23-420 and 16-23-430 of the S. C. Code of Laws. In a nutshell, S. 593 decriminalizes firearms on school grounds if the possessor has a valid Concealed Weapons Permit (CWP) and keeps the firearm in a closed glove compartment, console, or trunk or in the luggage area of the vehicle so long as the firearm is inside of a closed container that has an integral fastener. Also, the vehicle must be attended or locked. Following, we’ll take a look at each element of the law as well as potential questions and problems that may arise.
S. 593 first amends Section 16-23-430 of the S.C. Code of Laws. Section 16-23-430 prohibits “weapons” on elementary and secondary school premises (elementary, middle and high schools). The Section specifically defines a firearm as a weapon. Violations are a felony carrying a potential penalty of $1,000 fine and five (5) years in jail, or both, as well as confiscation of the weapon and a lifetime federal firearms disability. S. 593 amends the Section by adding the following:
(B) This section does not apply to a person who is authorized to carry a concealed weapon pursuant to Article 4, Chapter 31, Title 23 when the weapon remains inside an attended or locked motor vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle.
So, on its face, S. 593 eliminates criminal liability for CWP holders possessing a weapon on elementary or secondary schools so long as the weapon remains inside the closed glove compartment, closed console, closed trunk (or in the luggage area so long as the weapon is in a closed container secured by an integral fastener) and the vehicle itself is locked or attended. Before getting too deep into the specifics of this first half of S. 593 though, let’s look at the second half of S. 593 because many of the analyses will be the same for both halves.
S. 593 also amends Section 16-23-420 of the S.C. Code of laws. Section 16-23-420 is different from Section 16-23-430 because it prohibits firearms specifically and extends the prohibition to all schools as opposed to only elementary and secondary schools. S. 593 amends Section 16-23-420 as follows:
The provisions of this subsection related to any premises or property owned, operated, or controlled by a private or public school, college, university, technical college, or other post-secondary institution, do not apply to a person who is authorized to carry a concealed weapon pursuant to Article 4, Chapter 31, Title 23 when the weapon remains inside an attended or locked motor vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle.
As before, on its face, S. 593 eliminates criminal liability for CWP holders possessing a weapon on elementary and secondary schools, as well as colleges, so long as the weapon remains inside the closed glove compartment, closed console, closed trunk (or in the luggage area so long as the weapon is in a closed container secured by an integral fastener) and the vehicle itself is locked or attended.
How does S. 593 apply to Me?
You can only enjoy the provisions of S. 593 if you have a valid South Carolina issued CWP. If you do not have a South Carolina issued CWP (either resident or qualified non-resident), this new law does not apply to you. If you do not have any CWP, you are prohibited from bringing a firearm of any kind onto school premises (S.C. Code of Laws Section 16-23-420 (A)) (unless you fall under an exemption like police officers or you have permission from the authorities in charge of the school).
If S. 593 stood alone, a person with an out-of-state CWP asserting reciprocity would benefit the same under S. 593 as would someone with a South Carolina issued CWP. But, S. 593 does not stand alone and out-of-state CWP holders are burdened by the federal Gun Free School Zones Act.
What if I do not have a South Carolina issued CWP?
Without a South Carolina issued CWP, under the federal Gun Free Schools Act of 1996, you are prohibited from knowingly possessing a firearm in a “school zone” (basically within 1,000 feet of an elementary, middle or high school with some exceptions). The Gun Free Schools Act has been interpreted by the Bureau of Alcohol Tobacco and Firearms to require that the individual carrying the firearm must have a CWP issued by the state that the school is in. This distinction is important because there are many instances where out of state parents might have to travel to a South Carolina school for student competitions or events. To insure compliance with the Gun Free Schools Act, holders of out-of-state CWPs (with S.C. reciprocity) should park off elementary, middle or high school premises with any firearms stored in the closed glove box, closed console, closed trunk, or in a closed container with an integral fastener in the luggage area of the vehicle.
Before we move on, let me mention that you should consider the federal Gun Free School Zone Act to apply within 1,000 of an elementary, middle or high school boundaries or within 1,000 feet of an off-site event sponsored by one of these schools. The Act defines a school zone as:
[I]n, or on the grounds of, a public, parochial or private school; or within a distance of 1,000 feet from the grounds of a public, parochial or private school (18 U.S.C. 921(a)(25)).
The Act goes on to define a school as:
[A] school which provides elementary or secondary education, as determined under State law (18 U.S.C. 921(a)(26)).
So, to fully define school under the Act, we have to look at South Carolina law. With respect to firearms, the South Carolina Code of Laws defines schools as:
[P]roperty owned, operated or controlled by a public or private school (S.C. Code of laws 16-23-420(a)).
Therefore, you should consider the federal Gun Free School Zones Act not only applicable to within 1,000 feet of all public and private schools but also within 1,000 feet of all premises where any school sponsored or controlled activity is occurring. If this law seems burdensome, it is, and it should be struck down for a number of reasons. However, at this point, it is the law and you can incur criminal liability if you are found in violation of it.
What if I do have a South Carolina CWP?
If you have a valid South Carolina CWP, the new law provides an exception to the prohibition against firearms on all school premises or areas controlled by schools without getting special permission from the authorities in control of the school. The firearm can be loaded and chambered. To fall within the exception, the CWP holder must have the firearm in a closed glove box or console, closed trunk, or in the luggage area of vehicle so long as the firearm is in a closed container with an integral fastener. In our book South Carolina Gun Law, we go into detail explaining the terms used in this section of the Code. For the purposes of this article, I will try to give brief definitions or descriptions:
Schools – Public and private preschools through Colleges including technical schools.
School Premises – Inside the real estate boundaries of the school property and any other premises that the school is controlling (i.e. off campus ball games or competitions).
Console – There exists reasonable debate amongst gun owners as to the definition of console. There is no case defining console so I can only give my reasoned opinion. A factory installed console between the front seats is clearly a console. Aftermarket consoles that attach to the floor between the front seats or the front seat itself might likely be ruled a console also. It is also reasonable to think that consoles between the rear seats would be included in the definition but you can’t be sure. However, the more that the console gets away from a factory installed or permanently attached aftermarket console between the two front seats, the more wiggle-room a court has to find that the console is not a console under the Section.
Luggage Area - The luggage area of a vehicle is that area designed for storage of luggage. In a typical SUV, the luggage area is behind the last row of seats.
Closed Container - A container that is capable of fully closing so that items inside the container cannot be seen (i.e. a gun case, tackle box, or gun rug).
Integral Fastener - A device, designed as part of the container, that is capable of positively keeping the container closed (i.e. a metal or plastic clasp on a gun case or tackle box or the zipper on a gun rug).
The above definitions are important because, even though CWP holders will now be legal carrying onto school premises and events, the CWP holder cannot carry as typically allowed under the permit. In general, the CWP allows the holder to carry a concealable weapon, concealed in many places. That generally means carrying a handgun in a concealed holster on the person, in a pocket, around an ankle or in a purse or briefcase. Under S. 593, the CWP holder cannot carry a concealable weapon, concealed on school premises. Alternatively, the CWP holder can only possess a firearm on school premises if the firearm is in the vehicle’s closed glove box, closed console or closed trunk or in the luggage area in a closed container with an integral fastener. So, if the CWP chooses to carry his or her concealable weapon, concealed, on or about his person on the way to a school, the CWP holder must remove the handgun from its concealed location and place it into one of the listed areas of the vehicle before entering the school premises or event. While it seems illogical to move a safely holstered firearm to one of the areas of the vehicle listed, that is the law and a violation will subject you to criminal prosecution. (I will later discuss the legality of transitioning from concealed carry to one of the vehicle areas).
Another requirement is that the vehicle must be locked or attended. So, if you simply drop children off at school, you remain in the vehicle and the vehicle remains attended. Also, if you stand alongside of your vehicle or nearby the vehicle, you could probably successfully argue that the vehicle is attended under the meaning of the law. If, however, you leave the car in the school parking lot and walk the child to the first class or assembly, you must lock the vehicle before leaving it in the parking lot. Since there is no court case defining the term “attended vehicle” under this Section, the best practice is to lock your vehicle if you are not in it or standing very nearby to it.
The South Carolina CWP holder should pay special mind to the concepts of attended vehicle and person in possession of the firearm if leaving the vehicle on school premises. For instance, what if the husband has a South Carolina issued CWP and leaves his handgun in the glove box to walk his child to first period class after locking the vehicle. In that instance, he is in compliance because the firearm is in a legal place and the vehicle is locked when he walks away. However, say that wife is also in the vehicle on the school premises but she does not have a South Carolina issued CWP. The firearm is now in the possession of the wife who does not have a South Carolina issued CWP so she is not legal under S. 593. But, what if the husband locked his wife in the car before leaving the car? Has the husband complied with the law because he left the firearm in a legal place in the locked vehicle? This issue might eventually require court interpretation or a modification of the law. For now, the best practice is to ensure that anyone left in the vehicle with a firearm has a valid South Carolina issued CWP.
Once the South Carolina issued CWP holder is off of the school or school event premises, the weapon can be retrieved from its storage in the vehicle and returned to the place of concealment on or about the person. Or, if the CWP holder wants to leave the handgun in the glove box, console, trunk or luggage area, he or she can because those areas fall within an existing exception to the general prohibition against handguns (Section 16-23-20(9)(a)).
Transitioning from concealed carry to one of the vehicle areas is protected by a different Section. South Carolina Code of Law Section 16-23-20(12) makes it legal for a CWP holder to transition between his person and a closed glove compartment, console or trunk or in a closed container with an integral fastener in the glove compartment. Notice the Section says between the CWP holder’s person and those specified areas of the vehicle so it is legal to transition both to and from concealment on your person.
Employer Liability vs. Criminal Liability for Teachers, Administrators & School Staff
Teachers, administrators, professors and staff with CWPs can keep firearms in their attended or locked vehicles, in the specified areas of the vehicle on school premises, without criminal liability. Undoubtedly, some authorities in charge of the school or school premises might try to institute a policy of “no guns on the premises” as a condition of employment. This issue has already been addressed in a South Carolina Attorney General’s Opinion dated March 1, 2000. The Attorney General concluded that a Department of Corrections policy could not prohibit that which state law allows. Therefore, the Department of Corrections could not prevent employees from having guns in their vehicles. Before going on, it is important to note that the Attorney General Opinion is applicable to state-run school facilities and possibly not private facilities.
In his opinion, the Attorney General discussed a Department of Corrections policy that prohibited employees, including guards, from having a firearm in their vehicles. The policy provided that any employee violating the rule would be fired. Citing caselaw from as far back as 1928, the Attorney General opined the long-established precedent that a state agency is powerless to prohibit that which the State authorizes, directs, requires, licenses, or expressly permits. He then went on to note that, because the General Assembly specifically granted, through Section 16-23-20, the right to carry a firearm in the closed glove compartment, closed console, or closed trunk of an automobile, the Department of Correction's prohibition against an employee's having a weapon in his locked motor vehicle would be without authority and inconsistent with state law. The same analysis applies to S. 593. The new law expressly permits a CWP holder to have firearms on school premises in his vehicle in the specified vehicle areas and either attended or locked. So, CWP holders are not prohibited for having a firearm in the vehicle nothwithstanding any state-run school’s policy against firearms on school premises.
Private schools and colleges are not agencies of the state so the same analysis above cannot be strictly applied to those institutions. Private schools are private organizations operating on private property and are not state agencies. So, teachers, staff and administrators might face employment sanctions if the particular institution has a policy against employees having firearms on the premises. Likewise, visitors and students of private universities are subject to the rules and regulations of each private institution. While violators of such institutional policies would not face criminal liability, they are none-the-less subject to any penalties applicable for rule violations.
Students and S. 593
S. 593 will allow some students to possess firearms on campus. The first thing that a student must do is determine whether it is legal for them to possess a firearm in general. Under South Carolina law, with some exceptions, the minimum age for possessing a handgun is 18 years of age. Remember, though, that the new law is not applicable to a person on college campuses unless that person has a valid South Carolina CWP or reciprocity from another state (the federal Gun Free School Zones Act is only applicable to elementary, middle and high schools). The minimum age to get a South Carolina CWP is 21 years of age.
States other than South Carolina might issue CWPs to persons under age 21 (18 to 20 year olds). If the student is relying upon a CWP from a reciprocal state, the student should be aware that South Carolina Code of Laws Section 23-31-215(N) requires a CWP holder from a reciprocal state to abide by SC law. Thus, it would appear that an 18 to 20 year old CWP holder from a reciprocal state would not be legal in SC. However, this issue has not been determined by a court. To ensure compliance with the law, holders of out-of-state CWPs, relying upon reciprocity, must be 21 years of age when bringing firearms onto campus according to S. 593.
If the student has a CWP, the student must remember to leave the handgun in an attended or locked vehicle in the specified areas as discussed previously. As a final note, the federal Gun Free School Zones Act is not applicable to colleges, community colleges, technical schools or any similar educational institution that is not an elementary or secondary school.
Students should be aware of differences between public and private universities. As stated earlier in the section regarding employee liability, private universities and colleges are not agencies of the state. Private universities and colleges are private organizations operating on private property and are not state agencies. So, students and visitors on private university premises might face non-criminal sanctions if the particular institution has a policy against having firearms on the premises.
Can I now have a Rifle or Shotgun on School Premises?
Some have suggested that the language of the new law allows CWP holders to have not only concealable weapons (most handguns) in vehicles on school grounds, but any type of weapon. This interpretation is based upon language in S. 593 never referring to “firearms” or ‘handguns” but only weapons. Under this interpretation, a CWP holder is allowed to have any type of weapon on school grounds so long as it is stored in a closed glove compartment, console, or trunk, or in the luggage area in a closed container with an integral fastener.
The benefit under this interpretation is that weapons larger than those that qualify as concealable weapons under the CWP Section would qualify as weapons. The CWP Section defines concealable weapons as a firearm having a length of less than twelve inches measured along its greatest dimension. Because legal rifles must have a barrel length of at least 16 inches and shotguns must have a barrel length of 18 inches, rifles and shotguns do not fall within the definition of a concealable weapon. So, if the new law is interpreted to mean weapons and not concealable weapons, CWP holders would not be prevented from having rifles and shotguns so long as they are stored in the allowed areas of an attended or occupied vehicle. Obviously most glove compartments and consoles are not able to contain a rifle or shot gun. However, most trunks and luggage areas are.
There are not yet any court cases interpreting the meaning of weapon under this new law. If a CWP holder chooses to carry a rifle or shotgun under this interpretation and is later arrested for possession of firearms on school grounds, that individual might well be the “test case” for the issue. Because the new law specifically cites carrying pursuant to the CWP Section, the most conservative way to approach interpreting weapon is to define it the same way the CWP does. To carry a weapon pursuant to the CWP Section, the weapon must be a concealable weapon. Therefore, the best practice is to only store concealable weapons in the allowed areas of attended or locked vehicles. In general, concealable weapons are handguns less than 12 inches long.
Can I have a firearm in my motorcycle saddlebag on school premises?
Section 16-23-20 of the S.C. Code of Laws spells out the general handgun prohibition and the exceptions. That Section of the Code of Laws differentiates motorcycles from vehicles. Subsection (9)(a) provides the exact language upon which the new law (S. 593) gets its language (i.e. [there is an exception to the handgun prohibition if] the person has the handgun in a vehicle and the handgun is in the closed glove compartment, console, etc.) Later Section 16-23-20, Subsection (16) grants a separate and distinct exception for a pes or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.rson on a motorcycle if the firearm is secured in a saddlebag. So, it can safely be said that the legislative intent of Section 16-23-20 is to view vehicles separately from motorcycles. It is also significant that the Subsections refer to an exception of the person is in a vehicle or on a motorcycle.
So, when we look at the new law, S. 593, you should assume that the legislature had the same intent. The new law tracks the language of 16-23-20(9)(a) which provides for an exception if the gun is in the vehicle in one of the legal areas. The new law makes no provision for a person on a motorcycle. You should assume that if the legislature wanted to include an exception for motorcycles, it would have included an exception for them as it has in section 16-23-20. Therefore, the best practice is to not assume that the new law applies to motorcycles.
Conclusion
In summary, with some conditions, South Carolina issued CWP holders can now possess firearms on all school premises and events without incurring criminal liability. The firearm must remain inside an attended or locked vehicle in the closed glove compartment, console, or trunk, or in the luggage area in a closed container with an integral fastener. The firearm should be a concealable weapon as defined in the CWP Section of the South Carolina Code of Laws.
While S. 593 has some conditions that require you to think through a trip to schools, the new law is important progress toward implementing the full protection of gun rights under the Second Amendment and the South Carolina Constitution. GrassRoots GunRights South Carolina has been vital to the effort in getting S. 593 passed.
Update: June 5, 2009
S. 593 – New Rules for Schools
South Carolina law regarding carrying firearms on school premises has been changed for concealed weapons permit holders. Stephen Fulton Shaw, Esq., has completed a new written analysis for your benefit. However, the analysis is currently under review for completeness and accuracy by other attorneys. The plain English analysis will appear on the website in the near future.
Update: May 19, 2009
Carrying Near Schools
The Federal Gun Free Schools Act of 1996:
Because there is great current interest in proposed changes to South Carolina Law regarding the ability to carry a firearm on school grounds, the issue of the Federal Gun-Free Zones Act of 1990 has emerged as a point of discussion.
The Gun-Free School Zones Act of 1990 is a federal law that was enacted as part of the “Crime Bill’ of 1990. The law basically made it illegal to possess or discharge a firearm on elementary or secondary school grounds or within 1,000 feet from the school grounds (what the law defines as a school zone).
After its passage, it was later declared unconstitutional by the United States Supreme Court. The case upon which the US Supreme Court reviewed the law was U.S. v. Lopez (1995). While it is interesting to discuss the technical grounds upon which the Court found the law unconstitutional, that discussion is beyond the scope of this update.
Determined to interfere with your right to keep and bear arms, Congress re-enacted the law as the Gun-Free School Zone Act of 1996. This “new and improved” law “corrected” the technical defects in the 1990 law as identified by the Supreme Court in its U.S. v. Lopez decision.
So, as it stands now, the Gun-Free School Zone Act of 1996 (18 USC 922(q)) has not been struck down as unconstitutional, therefore, it is valid and enforceable. Two federal appeals courts have held that the new amended statute is constitutional, Danks in the 8th Circuit and Pierson in the 5th Circuit. However, the U.S. Supreme Court did seem to reiterate the invalidity of the law in U.S. v. Morrison (a case that reviewed a similar law). But, until the Supreme Court actually decides to review the law head-on, the only controlling legal authority comes from the appellate decisions so the law should be considered upheld at this point.
So, what does the law say or prohibit? The law makes it a crime, punishable by 5 years in jail and $5,000, to knowingly possess a firearm in a school zone unless the possessor meets one of the exceptions. In general, school zone is defined as the grounds (or within 1,000 feet of the grounds) of any public, private or parochial elementary or secondary school. Exceptions to that general rule are as follows:
a. the possessor has a valid concealed weapons permit
b. the possessor is on private property, not part of the school,
c. the gun is not loaded, and is in a locked container, or in a locked firearm rack in a motor vehicle,
d. the firearm is used in a program (that has been approved by the school) somewhere within the school zone,
e. the possessor is a security guard under contract with the school,
f. the possessor is a law enforcement officer performing official duties, or
g. the gun is unloaded and the possessor is going across the school zone for legal access to hunting land (with the school’s permission).
In summary, those without a concealed weapons permit should consider this valid law and abide by it. Those with a concealed weapons permit are exempt from the restrictions of the law. Keep in mind though, that South Carolina Law regarding carrying at schools still applies whether you have a concealed weapons permit or not so refer to your South Carolina Gun Law book for the “Rules for Schools.”
If you want to read the law straight from the federal statutes, here it is:
(18 USC 922(q)(20)(A) et seq.)
"(2)(A) It shall be unlawful for any individual knowingly to
possess a firearm that has moved in or that otherwise affects
interstate or foreign commerce at a place that the individual
knows, or has reasonable cause to believe, is a school zone.
"(B) Subparagraph (A) does not apply to the possession of a
firearm--
"(i) on private property not part of school grounds;
"(ii) if the individual possessing the firearm is licensed to
do so by the State in which the school zone is located or a
political subdivision of the State, and the law of the State or
political subdivision requires that, before an individual obtains
such a license, the law enforcement authorities of the State or
political subdivision verify that the individual is qualified under
law to receive the license;
"(iii) that is--
"(I) not loaded; and
"(II) in a locked container, or a locked firearms rack that is
on a motor vehicle;
"(iv) by an individual for use in a program approved by a
school in the school zone;
"(v) by an individual in accordance with a contract entered
into between a school in the school zone and the individual or an
employer of the individual;
"(vi) by a law enforcement officer acting in his or her
official capacity; or
"(vii) that is unloaded and is possessed by an individual
while traversing school premises for the purpose of gaining access
to public or private lands open to hunting, if the entry on school
premises is authorized by school authorities.
Update: April 22, 2009
SLED’s new application for Concealed Weapons Permit:
Our book went into some detail describing the SLED application for obtaining a new or duplicate CWP. As a result of a 100% increase in CWP applications over last year and a 30% cut in funding for SLED, SLED has developed new procedures for the application. The procedures and forms described in our book will remain current and effective until June 30, 2009. However, applicants can alternatively use the new streamlined application and procedure as noted below. As before, we still recommend that a person desiring to obtain a CWP contact a full-service instructor as described in the book.
The SLED has drafted a new CWP Application (Form R-078 (Revised 3/27/09)). As of this date, SLED would like applicants to complete the form ONLINE and then print it from their computer. This will insure legibility and streamline SLED’s workload.
Instructors will no longer place the training results on the application but will provide a separate certificate of completion that has been provided by SLED. The certificate is on SLED’s website.
You are almost assured that your application will take the full 90 days to process. SLED asks that applicants DO NOT CALL SLED regarding the status of applications until after the 90 day period. Calling earlier will cause SLED to divert valuable time and resources from processing applications.
The new form does not require that you include information about any prior arrests or convictions. Because SLED, will find that information anyway on the background check, they do not need an applicant to include the information on the form. That being the case, if you have prior convictions that will prevent you from obtaining the license (see Chapter 4, the Concealed Weapons Permit) DO NOT BOTHER WASTING YOUR TIME AND MONEY APPLYING because the convictions will appear on your record. If you are unsure of how your past will affect your application after reading our book, consult an attorney before applying.
You are now NOT required to indicate any minor (non criminal) traffic incidences on your application.
Resident applicants are not required to send photographs because the computer image from your SC drivers license or ID card will be retrieved by SLED and used. If you are applying for a qualified non-resident CWP, you will need to send a photo in compliance with the size specifications discussed in the book.
Applicants for a renewal are asked to use SLED’s online process and to apply about 90 days prior to the expiration of the CWP.
SLED has asked that you remind your fingerprint technician to take care to properly take the prints because nearly 15% of fingerprint cards are being returned by FBI as illegible. This will delay an application considerably.
Fingerprint cards are no longer mailed by SLED upon request. Instead, applicants are asked to call their regional SLED office to arrange for a pickup of cards:
Columbia Area: (803) 896-7015
Piedmont Area: 301 E North St., Greenville (864) 467-8111
PeeDee Area: Effingham Office (843) 662-6245
Low Country: 6435 Fair Street Suite A, N. Charleston (843) 569-7593
Update: April 19, 2009
A federal judge has suspended carry in National Parks
and National Wildlife Refuges:
On page 107 of South Carolina Gun Law, the book indicates that a Bush Administration amended national park and wildlife refuge rules to allow carry of concealed weapons on these public lands.
On Thursday, March 19, 2009, a federal district judge in Washington, D.C. granted anti-gun plaintiffs a preliminary injunction against implementation of the new rule.
As it now stands and until further notice, individuals cannot legally carry loaded, concealed firearms for personal protection in national parks and wildlife refuges.
At this time, the “old” rules are in effect. Basically, the old rule requires that all firearms be unloaded, broken-down (field stripped) or packed and stored in a manner that will prevent ready use. Ammunition must also be stored separately.
If you want the old rule in its entirety, here it is:
Codes of Federal Regulations, Title 36, Volume 1, Parts 1 to 199 [revised as of 07-01-98].
Chapter 1-National Park Service, Dept. of the Interior. Part 2-Resource Protection, Public Use and Recreation:
Section 2.4 Weapons, Traps, and Nets:
(a)(1) Except as otherwise provided in this section and parts 7 (special regulations), and 13 (Alaska regulations), the following are prohibited: (i) Possessing a weapon, trap or net (ii) Carrying a weapon, trap or net (iii) Using a weapon, trap or net (2) Weapons, traps or nets may be carried, possessed or used: (i) At designated times and locations in park areas where: (A) The taking of wildlife is authorized by law in accordance with Sec. 2.2 of this chapter: (B) The taking of fish is authorized by law in accordance with Sec. 2.3 of this part. (ii) When used for target practice at designated times and at facilities or locations designed and constructed specifically for this purpose and designated pursuant to special regulations. (iii) Within a residential dwelling. For purposes of this subparagraph only, the term "residential dwelling" means a fixed housing structure which is either the principal residence of its occupants, or is occupied on a regular and recurring basis by its occupants as an alternate residence or vacation home. (3) Traps, nets and unloaded weapons may be possessed within a temporary lodging or mechanical mode of conveyance when such implements are rendered temporarily inoperable or are packed, cased or stored in a manner that will prevent their ready use. (b) Carrying or possessing a loaded weapon in a motor vehicle, vessel or other mode of transportation is prohibited, except that carrying or possessing a loaded weapon in a vessel is allowed when such vessel is not being propelled by machinery and is used as a shooting platform in accordance with Federal and State law. (c) The use of a weapon, trap or net in a manner that endangers persons or property is prohibited. (d) The superintendent may issue a permit to carry or possess a weapon, trap or net under the following circumstances: (1) When necessary to support research activities conducted in accordance with Sec. 2.5 (2) To carry firearms for persons in charge of pack trains or saddle horses for emergency use. (3) For employees, agents or cooperating officials in the performance of their official duties. (4) To provide access to otherwise inaccessible lands or waters contiguous to a park area when other means of access are otherwise impracticable or impossible. Violation of the terms and conditions of a permit issued pursuant to this paragraph is prohibited and may result in the suspension or revocation of the permit. (e) Authorized Federal, State and local law enforcement officer may carry firearms in the performance of their official duties. (f) The carrying or possession of a weapon, trap or net in violation of applicable Federal and State laws is prohibited. (g) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within a park area that are under the legislative jurisdiction of the United States. {48 FR 30282, June 30, 1983, as amended at 49 FR 18450, April 30, 1984; 52 FR 35240, September 18, 1987).
© 2009-2013 Shaw, Kelley & Moore All Rights Reserved.