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.