You used your Second Amendment right as intended—to defend yourself in your own home, business, or car. Now your nightmare’s turned into a travesty of justice, because you’ve been arrested for it. How can this be? Is there any hope of righting this wrong?

In 2006, a new day dawned for South Carolina folks like you. That’s when our legislature passed the “Protection of Persons and Property Act.” Now on the law books at S.C. Code 16-11-410, it’s also called the “Castle Doctrine Act”—but its most popular name is the “Stand Your Ground Act.” Today, we’ll look at the basics of how it works.

The Purpose of Stand Your Ground

Here’s how the legislature put it at South Carolina Code Section 16-11-420:

  • “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.”
  • “The General Assembly finds that Section 20, Article I of the South Carolina Constitution guarantees the right of the people to bear arms, and this right shall not be infringed.”
  • “The General Assembly finds that persons residing in or visiting this State have a right to expect to remain unmolested and safe within their homes, businesses, and vehicles.”

The law qualifies certain people for immunity from prosecution. That means your case gets dismissed if you qualify. It exempts qualified people from establishing retreat as factor of self-defense. You can learn the factors of self-defense here.

Location, Location, Location

Before we get to who qualifies to Stand Your Ground, you need to know where qualifies. Generally, the law applies to a “dwelling, residence, or occupied vehicle.” A few key definitions:

  • “Dwelling” basically means a structure of any kind, including an attached porch, which has a roof over it and is designed to be occupied by people sleeping there at night. The structure can be temporary. It includes mobile homes and even tents.
  • “Residence” means a dwelling in which a person resides either temporarily or permanently, or is visiting as an invited guest.
  • “Vehicle” means a machine of any kind designed to transport people or property. It doesn’t have to be motorized.

To avoid being overly repetitious, we’ll call these “protected areas” below.

Who Qualifies for Stand Your Ground

The law provides two ways to qualify to seek dismissal.

The first way involves defending against:

  • An intruder in a protected area. “Intruder” means someone who’s unlawfully and forcibly entered, or is in the process of doing so.
  • Someone you’re removing or trying to remove against his will from a protected area.
  • Someone you know or have reason to believe is committing or did commit either an intrusion or unlawful, forcible act.

BEWARE—THERE ARE EXCEPTIONS TO THIS. You don’t qualify for immunity if the person you act against is a:

  • Lawful resident or a person who has the right to be there, like an owner or renter.
  • Parent, grandparent, or legal guardian of a child sought to be removed from the area. This seems to forbid parents or caretakers from extracting children from other parents or caretakers using deadly force. That’s what family court is for.

Also, if you are engaged in crime or using the home or vehicle to further a crime, you are not eligible for protection from the Stand Your Ground law. So drug dealers can’t use Stand Your Ground if it’s to defend a place they use to further their operations.

The second way you qualify requires passing a three-part test:

  1. You must be attacked in another place where you have the right to be, including your business; and
  2. You cannot be committing unlawful acts; and
  3. You must reasonably believe it’s necessary to prevent death or great bodily injury to yourself or another, or to prevent a violent crime as defined by state law.

By the way, anyone who enters or attempts to unlawfully, forcibly enter a protected area is presumed to do it with the intent to commit an unlawful act or violent crime as defined by state law. Thus, this part of the law can protect a social guest who defends someone else’s home against an intruder who breaks down the door to get in.

How To Make South Carolina's Stand Your Ground Law Work For You

First things first: You will need a criminal defense attorney who knows how the law works and how to present the facts. You may have rights, but you’ve got to earn them. You can bet the prosecutor won’t give up without a fight.

Either party can file a motion, but it’ll likely be the defense filing it. The State won’t move to dismiss its own case! If possible, your defense team should file it long before trial to spare you added expenses and strain if the motion is successful.

The judge decides if you’ve proven self-defense by a “preponderance of the evidence.” That means “a little more likely than not,” which is a whole lot less than “beyond a reasonable doubt.”

If the judge decides you proved it, the case is dismissed. If not, you go to trial.

Don’t Risk Your Rights by Being a Maverick

You may have powerful rights that can be the difference between freedom and a long stretch doing hard time. But that doesn’t mean your future’s bright. The government that gave you these rights now wants your freedom. You need a voice, a legal technician, and a storyteller to gather your evidence and present it in the most compelling way to convince a judge to protect you.

You need an experienced criminal defense attorney, because too much is at stake to risk going it alone. Call us at 888-230-1841 to start standing your ground.


Rob Usry
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Rob is a Spartanburg personal injury lawyer. Rob also practices as a workers' compensation attorney.