Why We Need to Re-Write the Law of Self-Defense:

The law of self-defense in South Carolina is common law. Judges write common law, not the elected legislature. But, in some states, the legislature has written the law of self-defense. We need the South Carolina General Assembly to rewrite the law of self-defense in South Carolina because the common law is prone to abuse. Here’s why.

The common law of self-defense in South Carolina is set forth in State v. Fuller, 297 S.C. 440, 377 S.E.2d 328 (1989). The elements (conditions that a person must meet in order to successfully claim self-defense) of self-defense in South Carolina are:

you must be without fault in bringing on the difficulty;
you must actually believe you are in imminent danger of loss of life or serious bodily injury or actually be in such danger;
if you believe you are in such danger, you must use deadly force only if a reasonable or prudent man of ordinary firmness and courage would have believed himself to be in such danger, or, if you actually were in such 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 yourself from serious bodily harm or losing your own life; and
you had no other probable means of avoiding the danger of losing your own life or sustaining serious bodily injury than to act as you did in the particular instance.
(Source: http://www.sled.state.sc.us/sled/default.asp?Category=sccwp&Service=Reciprocity)

      Lets look closely at the Jason Dickey case to see why the law of self-defense must be changed to ensure the law protects the victims of crime instead of the predators. You might want to read the full account of what happened leading up to the fatal shooting in Jason Dickey’s case to verify the following analysis is factually accurate.
      Before reading the following analysis of the fatal shooting and how the law of self-defense was abused, you must understand two important issues regarding criminal law: 1) who needs to prove what, and 2) how strong that proof needs to be.
      In any criminal trial, the government must prove the defendant is guilty. It is not the responsibility of the defendant to prove he is innocent. This gets to the heart of our legal system, i.e., a man is presumed innocent until proven guilty.
      In a trial where the defendant claims self-defense, South Carolina law requires the government to prove self-defense was not applicable. The defendant does not have to prove he acted in self-defense. If the government can not prove self-defense was not applicable, then the claim of self-defense must stand and the defendant must go free.
      How strong does the proof of guilt have to be? In a civil trial such as a contract dispute or auto accident injury claims, all it takes to win is for the jury to think one side is more deserving than the other side. So, if the jury thinks it is a close call on the facts, but none the less thinks one side is just a little more right than the other side, then the side that is just a little more right wins. This standard of proof is called “preponderance of the evidence”, which just means something more likely than not.
      In a criminal trial, the standard of proof needed to convict a person of a crime is “beyond a reasonable doubt.” This standard requires the jury to not just think the defendant is guilty, but to think there are absolutely no reasonable doubts as to the defendant’s guilt. This standard of proof is the toughest standard of proof in the American legal system. It is based on the principle that no innocent man should ever be imprisoned or punished for something he did not do.
      How does this play out in real life? Think about the OJ murder trial. The standard of proof necessary to criminally convict someone is guilty beyond a reasonable doubt. On the witness stand, Mark Furman - the investigating officer - was asked if he had planted the bloody evidence used against OJ. Furman did not deny planting the evidence. Instead, Furman invoked his 5th Amendment right not to say anything that might tend to incriminate himself. The jury obviously felt if the investigating officer refused to testify he had not planted the evidence, then a reasonable doubt existed as to whether OJ was guilty. That is why OJ walked out a free man.
      In a civil trial for wrongful death brought by the families of the people OJ allegedly killed, the standard of proof necessary to win was a preponderance of the evidence - a much lower standard than beyond a reasonable doubt. In the civil trial, the jury felt OJ was more likely than not guilty of having wrongfully killed two people. The jury found in favor of the plaintiffs and OJ lost a lot of money.
      In Jason Dickey’s case, Jason claimed self-defense. Once the issue of self-defense was raised, the government had the responsibility to disprove self-defense beyond a reasonable doubt. If the government failed to prove beyond a reasonable doubt that Jason had not satisfied at least one element of self-defense, then Jason should have been set free.
      The analysis below will show Jason proved he had indeed satisfied every element of self-defense beyond a reasonable doubt even though Jason had no duty to prove anything. The government had the duty to prove beyond a reasonable doubt that Jason had failed to satisfy at least one element of self-defense. Yet somehow, the jury found that the government had proven their case beyond a reasonable doubt. This case illustrates why we need to change the law of self-defense in South Carolina.
      Once you finish reading the facts about this case, you will understand how the old adage “never trust your fate to 12 people too stupid to get out of jury duty” came into being.

Element 1: You must be without fault in bringing on the difficulty.
      Jason was employed as a night watchman at the apartment building where Jason also lived. Two female residents of the apartment building had gone out partying earlier that evening and brought home a couple of drunk guys they had just met. One of the female residents became concerned because one of the drunks had gotten “out of control.” This drunk had left her apartment seeking to fight with other residents of the building. This drunk was causing trouble by knocking on doors on other floors of the apartment building looking for a person to beat up. The female resident of the apartment went to the front desk and requested that Jason ask the drunks to leave. Jason did as his job required him to do and politely asked the drunks to leave the apartment building.
      When the out of control drunk refused to leave when politely asked to do so by Jason, Jason called 911 and requested that the police come to evict the drunks. Jason was told the police were en route. This enraged the “out of control” drunk. But, the other drunk convinced the “out of control” drunk that it was in their best interests to leave, and they did.
      As the drunks were leaving the apartment building and turning right out the front door, Jason saw the taillights of a Crown Victoria go past the front door of the apartment building to the left. Since the police drive Crown Victorias, Jason thought it was the police responding to his 911 call. Jason stepped outside and turned left to go talk with the police. But, it turned out the Crown Victoria Jason saw was not a police car. This left Jason standing outside on the welcome mat under the awning of his apartment building.
      So, what did Jason do wrong that put him at fault in bringing about this difficulty? Jason was polite and never raised his voice or used abusive language. Jason did nothing wrong to bring on the difficulty that evening.

Element 2: You must actually believe you are in imminent danger of loss of life or serious bodily injury or actually be in such danger.
      To keep things in proper perspective, certain facts need to be pointed out. The FBI provides detailed reports on crime. In both 2003 and 2004, the FBI reports more people were murdered using hands, feet, elbows, and knees as deadly weapons - the very weapons the two mean drunks were going to use against Jason - than were murdered by rifles, shotguns, poison, explosives, and drowning COMBINED! What starts out as a “simple” fistfight can turn deadly.
      And, lets not forget about the vodka bottle that was under the shirt of the lead attacking drunk - the bottle the drunk was reaching for when he told Jason that he “had something for you, too” as he charged at Jason. A vodka bottle is a deadly weapon, too. It can be used as a blunt instrument to bludgeon people with, or if broken, it can be used as a cutting instrument. According to the FBI, almost three times as many people are killed by blunt instruments and cutting instruments as are killed by hands, feet, elbows, and knees - which only increased the dangers Jason was unwillingly being forced to face.
      These FBI numbers only report on people who actually got killed. There were even more people who “only” suffered serious bodily injury. The law of self-defense is supposed to allow you to protect yourself against both death and serious bodily injury.
      Jason rightfully believed he was in imminent danger of loss of life or serious bodily injury, and testified to such on the witness stand. A female witness sitting outside on a bench near the entrance of the apartment was so afraid for her own safety when the drunken predators started to charge Jason that she tried to escape into the apartment building. She didn’t make it all the way inside before Jason was forced to shoot to stop the attack. If the girl was so afraid for her own safety that she tried to run inside the apartment building, imagine how afraid Jason must have been since the two mean drunks were coming to harm Jason, not the girl. Jason testified that he was more afraid of the two attacking drunks than he had ever been before in his entire life.
      The surviving drunk testified they intended to beat up Jason when they charged him. So, what reasonable person could possibly believe Jason was not in imminent danger of loss of life or serious bodily injury, and rightly feared for his safety under these circumstances?
      Not only was Jason actually in imminent danger of loss of life or serious bodily injury, Jason was quite reasonable in believing he was in such danger. Therefore, Jason satisfied both alternatives of the second element of self-defense.

Element 4: You had no other probable means of avoiding the danger of losing your own life or sustaining serious bodily injury than to act as you did in the particular instance.
      What alternatives - short of using lethal force - are available to you to avoid the danger when two predators are determined to do you harm? You could try to escape by running away. You could try to overpower them by fighting with them. You could try to talk and reason with the predators and get them to change their minds. Lets look at each of these alternatives.
      Escape: Jason has a 30% disability from the U.S. Army due to nerve damage in his right leg which causes foot drop. Jason has a difficult time walking, and can not run. The healthy young lady near the front door couldn’t run to safety inside the building before Jason was forced to shoot. So, how could any person reasonably expect the disabled Jason to have run faster to escape than a healthy person could run to escape? Just as Jason could not outrun the healthy young lady, Jason was not physically able to outrun the two mean attacking drunks, either. So, the try to escape by running away option was not an option that reasonably could have worked for Jason.
      Fighting: In one corner, we have Jason who is morbidly obese and wears glasses, in addition to suffering from foot drop as described above. Jason is not well suited to be a fighter. In the other corner, we have TWO healthy young men who are itching for an unfair fight of two against one, and one of them (6'1" tall and 210#) is carrying a deadly weapon - a vodka bottle that he tried to use as a weapon in his attack upon Jason. So, how could any person reasonably expect the disabled Jason to win a fight against these two healthy young predators? So, the overpower them by fighting option was not an option that reasonably could have worked for Jason, either.
      Talking: Have you ever tried to reason with a drunk? The only thing harder than trying to reason with a drunk is trying to reason with two drunks. These two drunks were not willing to be reasonable. They felt they were “justified” in beating up a disabled veteran who had done nothing to provoke them. How can you possibly reason with that mentality? Well, you might be able to if you had the time to do so. But, these two drunks did not give Jason time to reason with them. Their attack lasted only a few seconds, which is not enough time to reason with two drunks. Jason exposed his gun in an effort to stop the attack and let reason prevail. Yet, even after seeing the gun, the most aggressive drunk - the “out of control” drunk - still continued his attack upon Jason, and reached for his vodka bottle to use as a weapon. So, how could any person reasonably expect Jason to continue trying to talk with these two drunks. These two drunks were intent upon beating Jason up - there was no stopping them short of using lethal force. So, the talking and reasoning option was not an option that Jason was allowed to use because the two drunks would not allow it.

Element 3: If you believe you are in such danger, you must use deadly force only if a reasonable or prudent man of ordinary firmness and courage would have believed himself to be in such danger, or, if you actually were in such 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 yourself from serious bodily harm or losing your own life.
      This is the only element that Jason could have failed to satisfy in the jury’s opinion. And, this is why the law of self-defense must be changed to protect the victims of violent crime instead of the predators.
      Our society has been raised on television, and what people see on TV is their reality for way too many people. Television teaches people a single shot from a 9mm handgun will lift a person off his feet, throw him 5 feet backwards through the air, and through a plate glass window. People know this to be true because they see it everyday on TV. But, the truth is that this can not happen.
      TV also shows a person getting into a fight against four attackers and somehow coming out of that fight with no bruises, no cuts, no black eyes, no missing teeth, no broken ribs, no damages at all. In fact, the lone fighter frequently even wins the fight against four attackers. People know that fighting is harmless because TV teaches them that no one really gets hurt from a fistfight. The truth is that people get seriously hurt or killed when attacked by multiple attackers.
      The problem is too many people think TV is an accurate representation of real life. Well, it is not.
      Unfortunately, these deluded people are the same people who serve on juries. Are these the people you want sitting on your jury - the ones who think you can successfully fight multiple attackers without getting hurt, or that a 9mm handgun is so powerful that it throws people through the air and plate glass windows? Are these the people you want deciding whether what you did was reasonable? Unfortunately, it was exactly these same delusional people who served on Jason’s jury, and felt Jason should not have used lethal force against two aggressive mean drunks who were attacking Jason with a vodka bottle.
      If Jason failed to win his freedom on a claim of self-defense under these facts and circumstances, then the rest of us are also at extreme risk of going to prison if we are ever forced to use lethal force to defend our lives. That is why the law of self-defense must be changed.
      Life is full of risks. We drive cars even though people die in auto accidents every day. We have surgeries even though people die on the operating table. Life is all about managing risks, and who should bear the risks.
      Our current common law of self-defense puts all the risk on the victims and protects the predators. This needs to be changed.
      Lets look at Jason’s case again. We have shown that Jason had no alternative to using lethal force other than to fight with the two mean aggressive drunks and hope for the best. Jason was not the one who demanded that this dangerous situation exist - the predators are the ones who insisted that there be a fight.
      Jason was forced to choose between fighting two mean aggressive drunks and risking serious bodily injury or death, or using lethal force and risking going to prison for murder if the jury was as stupid as the one he was judged by. As can be seen from Jason’s choices - choices he was forced to make by the predators, not choices he voluntarily chose to make, Jason was the one who had to bear all of the risks in this life and death situation created by the predators. Why should Jason be the one to be forced to bear all the risks of serious bodily injury or death - or going to prison - when it was the predators who started the trouble and forced Jason to use lethal force to defend himself? Jason was the innocent party. Yet, Jason was forced to bear all of the risks. That is wrong.

There is a better way!

      The law of self-defense should be written to put the risk where it belongs. The law of self-defense should state that when predators start preying upon innocent people, then the predators assume the risks that come from their violent ways. The risks of starting and forcing a life threatening situation should be placed upon the predators, not the victims of violent crime!
      Putting the risks where they belong can be accomplished by passing a law that states that lethal force is presumed to be reasonable and necessary whenever one is preventing an imminent aggravated assault or stopping an ongoing aggravated assault. But, such a law would not allow the use of lethal force after an aggravated assault has stopped because that would be revenge.
      If such a law was in force when Jason was attacked, the jury would not have been able to decide that Jason should have taken his chances with the beating that was sure to come from the two mean drunks. The jury would not have been able to convict Jason for doing what each and every one of us would have done in the same situation - defend ourselves against an imminent threat of serious bodily injury or death.
      The South Carolina General Assembly passed a law to override part of the common law of self-defense in 2006 when they passed a law repealing the duty to retreat. It is now time for the General Assembly to go the rest of the way and pass a self-defense law that puts the risk of harm on the violent predators, not the victims of violent crime.
      GrassRoots GunRights will draft a proposed law of self-defense for South Carolina modeled on the Model Penal Code and print it in the next issue of The Defender. Then, GrassRoots GunRights will find legislators to sponsor a bill with these proposed changes.
      If you agree the law of self-defense should be rewritten by the General Assembly to protect the victims of violent crime instead of the violent predators, then join GrassRoots GunRights and help us get the law changed. Together we can get it done. But, if you decide to sit on the sidelines and only watch others, then you better pray that you are not the next victim of violent crime to go to prison for defending yourself simply because a jury watches too much TV and can not distinguish reality from fantasy.

THE LAW OF SELF-DEFENSE MUST BE CHANGED TO PROTECT THE INNOCENT VICTIMS OF VIOLENT CRIME, NOT THE VIOLENT PREDATORS!

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