So say two statutes enacted by the General Assembly in 2011 as part of its revision of North Carolina’s self-defense law. G.S. 14-51.2(e) and G.S. 14-51.3(b) both state that a person who uses force as permitted by those statutes—in defense of home, workplace, and vehicle under the first statute and in defense of self or others under the second statute—“is justified in using such force and is immune from civil or criminal liability for the use of such force . . . .” What does this protection mean in criminal cases? No North Carolina appellate cases have addressed the self-defense immunity provision. This blog post addresses possible implications.
Does North Carolina’s immunity provision merely confirm that a person may rely on self-defense as an affirmative defense at trial and, if successful, not be convicted? Or, does it do more?
The immunity provision may do more. It may create a mechanism for a defendant to obtain a determination by the court, before trial, that he or she lawfully used defensive force and is entitled to dismissal of the charges.
Several states now have self-defense immunity provisions. The exact wording varies. Some have explicit procedures for determining immunity (see Ala. Code § 13A-3-23), but most are silent. In interpreting these statutes, the courts agree that the immunity provision does “not merely provide that a defendant cannot be convicted as a result of legally justified force.” See Dennis v. State, 51 So.3d 456, 462 (Fla. 2010). Surveying the various states with immunity provisions, one commentator has observed: “There is consensus that “Stand Your Ground” statutory immunity is not an affirmative defense, but rather a true immunity to be raised pretrial.” See Benjamin M. Boylston, Immune Disorder: Uncertainty Regarding the Application of “Stand Your Ground” Laws, 20 Barry Law Review 25, 34 (Fall 2014).
North Carolina’s immunity statute is in the silent camp. It does not describe procedures for determining immunity or elaborate on the meaning of the term. The statute appears to distinguish between defensive force as an affirmative defense and defensive force as the basis for immunity, providing that a person who meets the statutory requirements for defensive force is “justified” in using such force and is “immune” from liability. The first term appears to afford the defendant an affirmative defense—a justification—against criminal charges, while the second term appears to afford the defendant something more. See also G.S. 15A-954(a)(9) (providing that on motion of defendant court must dismiss charges if defendant has been granted immunity by law from prosecution).
North Carolina’s self-defense immunity provisions may differ in that they protect a person from criminal “liability” while other states’ provisions protect a person from criminal “prosecution.” See, e.g., Fla. Stat. § § 776.032(a) (protecting person from criminal prosecution and civil action and defining criminal prosecution as including arresting, detaining in custody, and charging or prosecuting); Colo. Rev. Stat. § 18-1-704.5 (protecting person from criminal prosecution and civil liability but not defining terms). Whether the difference is legally significant is unclear.
Have other state courts interpreted their self-defense immunity statutes as giving the defendant a right to a pretrial hearing on immunity?
Yes. Although the courts differ on the requirements for such hearings, discussed below, they have found that their self-defense immunity statutes give defendants the right to a pretrial hearing to determine immunity. See, e.g., People v. Guenther, 740 P.2d 971, 975 (Colo. 1987).
In what kinds of cases involving defensive force have courts found a right to a pretrial immunity determination?
The answer depends on the particular statute. For example, the Alabama Court of Criminal Appeals held that its immunity provision applies to all claims of self-defense, not just those involving a “stand-your-ground” defense. Malone v. State, 2016 WL 3136212 (Ala. Crim. App., June 3, 2016). The Colorado Supreme Court held that its immunity statute applies to occupants of dwellings who use force against an unlawful entry as provided in its statute. Guenther, 740 P.2d at 979.
North Carolina’s immunity provision is included in both G.S. 14-51.2 and G.S. 14-51.3, which together cover defense of home, workplace, vehicle, and person. Therefore, regardless of its exact meaning, the immunity provision applies to the use of defensive force in compliance with either statute.
What is the standard of proof at a pretrial immunity determination?
Most courts have held that the defendant has the burden to establish immunity by a preponderance of the evidence. See State v. Manning, 2016 WL 4658956 (S.C., Sept. 7, 2016); Bretherick v. State, 170 So.3d 766, 779 (Fla. 2015); Bunn v. State, 667 S.E.2d 605, 608 (Ga. 2008); Guenther, 740 P.2d at 981; see also Harrison v. State, 2015 WL 9263815 (Ala. Crim. App., Dec. 18, 2015) (adopting this burden before statute was revised to impose this burden). Because the defendant has the burden of proof, presumably the defendant presents evidence first.
Courts taking this view have rejected other burdens making it easier or harder for the State to resist immunity motions. For example, the Florida Supreme Court held that the existence of disputed issues of material fact (a standard common to summary judgment motions in civil cases) does not warrant a denial of immunity. See Dennis, 51 So.2d at 462–63. Similarly, the Florida Supreme Court held that the existence of probable cause does not warrant a denial of immunity; the court reasoned that its legislature intended the immunity provision to provide greater rights than already existed under Florida law. Id. at 463. The Florida Supreme Court refused, however, to require the State to prove beyond a reasonable doubt that the defendant did not lawfully use defensive force, the standard at trial. See Bretherick, 170 So.2d at 775 (also citing decisions from other jurisdictions; two justices dissented).
Kansas and Kentucky appellate courts have held that the State need only establish probable cause that the defendant did not lawfully use defensive force. See State v. Ultreras, 295 P.3d 1020 (Kan. 2013); Rodgers v. Commonwealth, 285 S.W.3d 740, 756 (Ky. 2009). The Kansas Supreme Court has also held that a trial judge may set aside on immunity grounds a jury verdict of guilty. See State v. Barlow, 368 P.3d 331 (Kan. 2016).
What is the nature of the hearing?
In states in which the defendant has the burden of establishing immunity, the trial court holds an evidentiary hearing and resolves factual disputes. See, e.g., Dennis, 51 So.3d at 462–63; Guenther, 740 P.2d at 981. The South Carolina Supreme Court recently held that a judge may decide the immunity issue without an evidentiary hearing if undisputed evidence, such as witness statements, show that the defendant has not met his or her burden of proof. See State v. Manning, 2016 WL 4658956 (S.C., Sept. 7, 2016).
Kentucky and Kansas, which require only that the State establish probable cause that the defendant did not lawfully use defensive force, differ from each other. The Kentucky courts have held that an evidentiary hearing is not required and that the State may meet its burden with other record evidence. See Rodgers, 285 S.W.3d at 755–56. The Kansas Court of Appeals has held that an evidentiary hearing is required and that the rules of evidence apply at such hearings, but the judge should construe the evidence in a light favorable to the State, resolving conflicts in the evidence to the State’s benefit and against immunity. See State v. Hardy, 347 P.3d 222, 228 (Kan. Ct. App. 2015), review granted, ___ P.3d ___ (Kan., Apr. 21 2016)
In all of the states, the court must dismiss the charges if the defendant prevails. See also Fair v. State, 664 S.E.2d 227, 230 (Ga. 2008) (holding that trial court may not reserve ruling until trial).
Is the defendant barred from relying on self-defense at trial if he or she loses a pretrial immunity motion?
No. Courts in other states have recognized that a defendant still may rely on defensive force as an affirmative defense at trial under the standards of proof applicable to the trial of criminal cases. See, e.g., Bretherick, 170 So.3d at 778; Bunn, 667 S.E.2d at 608. In North Carolina, the State has the burden at trial to prove beyond a reasonable doubt that the defendant did not lawfully use defensive force.
As the foregoing indicates, the North Carolina self-defense immunity provision raises several questions, which await further answers.
John, correct me if I’m wrong, but it seems to me that to get these answers we will need to make a motion for a pre-trial hearing on self-defense immunity. Given that the legislature has provided no rules for said hearing, can/should we make a motion for such a hearing at a very early stage, i.e. in district court? This is important because bonds are often prohibitively expensive (and sometimes denied entirely) and in certain jurisdictions the State takes a very long time to seek transfer to Superior Court. If the idea of “immunity” is that a defendant who exercises self-defense should be spared the costs and burdens of prosecution, then a District Court hearing seems most appropriate. On the other hand, since it is not a court of record, such a hearing is problematic as errors will evade review. What do you think is the best mechanism(s) for the Defense to try to exercise this right to “immunity”?
This issue was litigated on Monday (11/14/16) in a murder case. The defense requested in writing a pretrial hearing for pretrial immunity. I responded in writing and the judge denied the motion stating that there was no statutory right to the requested pretrial determination. I can forward you the State’s Response if you are interested.
Mr. Sigmon, I am researching this matter and would be very interested in a copy of the State’s Response if you still have it readily available. Thank you.
This is a very significant issue requiring a very thorough analysis.
The whole point of an immunity is it is founded on the public policy that persons falling within its scope must not be subjected to the burdens of a criminal or civil proceeding (immunity from suit) or liability (immunity form liability), as applicable, because it would run counter to if not undermine the actions/conduct/speech, etc. involved. For example, reporting acts and/or omissions of a professional licensee (e.g., psychologist) to his/her licensing oversight authority.
A such, immunity by its nature should be resolved as early in the process is possible – even if there are factual disputes, whereas affirmative defenses are by nature only capable of being determined at trial (summary judgment on the civil side being considered “trial”). It follows there should be a full-blown evidentiary pre-trial hearing conducted in front of a judge where the person asserting immunity has the burden of production and the plaintiff/prosecution the burden of persuasion.
The lack of a right to jury determination can be justified on the constitutional grounds that the immunity is conferred by statute and thus can be conditioned on a waiver of a jury determination if asserted pre-trial and the person claiming immunity can always have a jury determination by proceeding to trial.
There is an interesting case arising out of the Ruby Ridge incident where the court wrestled with the concept of a pre-trial immunity determination involving the Supremacy Clause of the US Constitution (Idaho v. Horiuchi, http://caselaw.findlaw.com/us-9th-circuit/1471745.html). A key issue there was whether the immunity under the Supremacy Clause can be properly determined pre-trial (specifically a Fed.R.Crim.P. 12(b)(1) motion). The court pointed to the Reporters Notes to Rule 12(b) as specifically referencing immunity as one of the issues determinable under Rule 12(b). Significantly, the court also pointed out the need for enhanced protections in construing the parameters of immunity to a criminal defendant versus a civil defendant.
While this opinion should be cited if dealing with the provisions of state criminal procedure cognate to Fed.R.Crim.P. 12(b) even if a statutory immunity, the other issue is whether the state crime at issue has as an element at least one of the elements of the immunity – e.g., the same malice element. In Horiuchi that was not the case because the basis of the immunity was the Supremacy Clause.
Nevertheless, my reading of Rule 12(b) is there is nothing precluding the assertion of a pre-trial 12(b) motion on the immunity issue even if it involves a determination of one or more of the elements of the crime at issue.
The problem with statutory immunity is the failure legislatures to provide the substantive without the corresponding procedure, resulting in the various judiciaries creating immunity procedural “Balkanization”.
There is also an interesting case out of MA dealing with statutory immunity on the civil side, addressing public policy underlying statutory immunity, immunity from suit versus liability, and burdens of production and proof. See http://masscases.com/cases/sjc/460/460mass91.html. That opinion also points to the failure of the legislature to provide for a comprehensive immunity scheme, requiring the courts to fill in the missing components.
Mr. Sigmon, please send me a copy of the State’s response. Thanks
Has there been any actual granting of immunity in North Carolina and if so what was the mechanisim for the ruling, such as pre trial immunity hearing?
Warning: This reply may be considered in jest, or as a serious search for knowledge, but it should not be considered as a criticism of John, who does an excellent job here and elsewhere. My audience here is educated and thoughtful, better than what I could get with a google search. I have a question: What does John mean by starting his post with “So”? Many lawyers and other people (mostly youngish) do that in response to questions. It is extremely over-used in oral communication, but this is the first time I have seen a scholarly article begin with “so”. Why is it so? So that you don’t say “Ok…” or “Now…” or “Listen up you dummy, I have the floor and I’m in charge here”? The latter seems to be the implied intent in many situations, and I doubt John intends it this way. He probably just wants to sound modern, and young (who doesn’t?) However, until this use obtains a generally understood linguistic meaning, it remains a distraction for those of us who must weigh each word of an otherwise coherent statement involving a complicated legal issue. If it means “Listen up dummy…” then it should not be used, in my humble opinion. Having said all that, this is a good article, with a little moss.
I am not immune to a rousing discussion about writing style. On the question of beginning a sentence with “So”, here is a link to an article, published this summer, suggesting that lawyers should go lighter on heavy sentence connectors, such as furthermore and accordingly, and use lighter connectors, such as “So”. See https://judicature.duke.edu/articles/go-light-on-heavy-connectors/. I would like to say I was aware of this scholarly explanation when I began my post with “So”, but I actually used the word differently, as a response to the title I had chosen. Thus: Self-Defense Provides Immunity from Criminal Liability (the title). So say two statutes enacted by the General Statutes (the opening part of the first sentence). Although I believe I have an affirmative defense in this situation, I can see that the construction might not satisfy the reasonable writer standard. Thank you for your comment, your Honor. I appreciate having a hearing on the issue.