D. Defense of Property

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

D. Defense of Property

1. Statutory Defense of Property Under Citizen's Arrest Statute

The law relating to defense of property, and especially defense of habitation, may have been substantially altered, as a practical matter, by a 1995 amendment to one of the citizen's arrest statutes, S.C. Code Ann. § 17-13-20 (2003). That statute, as amended, appears to authorize the use of deadly force to arrest one making a trespassory entry of a dwelling at night. The right to make a citizen's arrest, therefore, may afford a defense in situations in which a traditional defense of property is unavailable. See Section F. Citizen's Arrest, infra.

2. Common Law Defense of Property

Defense of property is often referred to as defense of habitation, probably because most reported cases in South Carolina involving defense of property seem to have taken place in the home. Still, it must be recognized that there is a right to defend even personal property, regardless of where that property is located, although the right to defend personal property, standing alone, does not authorize the use of force or violence, e.g., State v. Davis, 50 S.C. 405, 427-28, 27 S.E. 905 (1897). (The Davis court's statements concerning the law of citizen arrest have been questioned, State v. McAteer, 340 S.C. 644, 532 S.E.2d 865 (2000), but not its observation about defense of property.)

As will be developed below, the defense of habitation is a separate and distinct defense from self-defense. Nonetheless, as a practical matter, cases involving defense of habitation also often involve self-defense. E.g., State v. Sullivan, 345 S.C. 169, 547 S.E.2d 183 (2001), and State v. Rogers, 130 S.C. 426, 126 S.E. 329 (1925).

In defending habitation, the fourth element of self-defense, which imposes a duty of retreat before using deadly force, would not be applicable. There is no duty to retreat from one's own home. In such a self-defense situation, the defendant may act upon the reasonable belief that there is the danger and the necessity to use such force; the danger need not be real. State v. Jackson, 227 S.C. 271, 87 S.E.2d 681 (1955) (a self-defense case).

The belief in the necessity of using deadly force in the defense of habitation, and in defense of self, must be reasonable. This was emphasized in State v. Lee, 293 S.C. 536, 362 S.E.2d 24 (1987), in which the Court apparently concluded on the facts of the case that any belief in the necessity of using deadly force was unreasonable as a matter of law. Consequently, the Court upheld the trial court's refusal to instruct the jury on defense of habitation.

A defendant may not claim the defense of property unless he is not at fault in bringing about the difficulty. In State v. Moultrie, 273 S.C. 532, 257 S.E.2d 730 (1979), the defendant, who resisted lawful arrest by barricading himself in his house and shooting a deputy sheriff, could not justify his actions under defense of property because his actions that brought about the difficulty were unlawful.

As stated previously, the defense of habitation is a separate defense from that of self-defense. The landmark case of State v. Bradley, 126 S.C. 528, 120 S.E. 240 (1923), attempted to impose some order on the law of defense of habitation by explicating its applicability in four different situations, including that in which it overlaps with the law of self-defense.

The most controversial aspect of the Bradley opinion is its assertion in dictum that one has a right to use deadly force to eject a trespasser from the dwelling, even when self-defense is not involved. This statement appears in the first of Bradley's four situations.

First situation. The occupant is the slayer and stands upon the right to protect his habitation, apart from the plea of self-defense. "[T]he law permits the owner to use as much force, even to the taking of his life [of a trespasser in a dwelling], as may be reasonably necessary to...