PIERRE, S.D. (KELO) — The fate of a controversial ‘stand your ground’ measure is now in the hands of South Dakota Governor Kristi Noem after House Bill 1212 cleared the Senate on Monday. The bill, which was killed in the Senate Judiciary committee on March 4, was recovered via the ‘smoke out’ rule just hours later. The Senate voted 21-14 in favor of approving the bill.
Critics of the bill pointed out many issues during testimony before the committee, blasting the bill for doing too much to expand the use of lethal force and for seeking to do away with current laws, stripping away historic precedents South Dakota courts currently operate on.
KELOLAND News spoke with Taneeza Islam, who testified in opposition of the bill on behalf of South Dakota Voices for Justice (SDVFJ), who told us that this bill would allow people to shoot and kill anyone, anywhere.
Among their issues with the bill, Islam says SDVFJ is concerned about the circumstances under which this bill would allow the use of deadly force.
Islam also says that the bill offers too much latitude for the average citizen to decide for themselves if deadly force should be used.
We also reached out to South Dakota Moms Demand Action, another organization which opposes the legislation, who directed us to their statement on the matter.
“South Dakota’s so-called ‘Stand Your Ground’ law is already dangerous, and there is no reason to expand it and put public safety at further risk.”
“As the Senate Judiciary Committee recognized, this bill would encourage more people to shoot first and ask questions later. Shooting to kill even when you can clearly and safely walk away from danger is not self-defense, it’s violence. We are extremely disappointed that the legislature chose to advance this bill and will carry our fight against this reckless proposal all the way to the governor’s desk.”Shannon Emry, South Dakota Moms Demand Action
So what does this bill actually do?
The bill seeks to make it easier to justify the use force.
“A person who uses or threatens to use force in accordance with this section doesHB 1212, Section 2
not have a duty to retreat before using or threatening to use force.”
The bill also would expand the criteria for when deadly force can be used.
“A person is justified in using or threatening to use deadly force if the personHB 1212, Section 3
reasonably believes that using or threatening to use deadly force is necessary to prevent
imminent death or great bodily harm to himself, herself, or another, or to prevent the
imminent commission of a forcible felony.”
This portion of the bill also states that a person has the right to “stand his or her ground,” so long as they are “not engaged in a criminal activity,” and are “in a place where the person has a right to be.”
The bill would also expand the definition of where a person can use deadly force. Under the state’s current law, any person is justified in the use of force or violence against another person if they believe it is necessary to prevent or terminate trespass on or other criminal interference with their property. The law states however, that deadly force is only justified if a person is resisting an attempt on their own life, resisting a felony targeting themselves or their current dwelling, or when defending their “husband, wife, parent, child, master, mistress, or servant.”
HB 1212 would expand the definition of a “dwelling” as “a building or structure of any kind, whether temporary or permanent, that is designed to be occupied by people lodging therein at night, together with any attached garage or porch.” Under 1212, this would include:
- A tent
- A camper or motorhome
- Any other conveyance, whether mobile or immobile (vehicles)
The bill states that a person would have the right to use deadly force in a variety of situations if they have “reasonable fear” of “imminent death” or “great bodily injury.” Section 5 of the bill clarifies that a person is presumed to have held “reasonable fear” if the person they kill had, or was in the process of unlawfully entering a dwelling, residence, or occupied vehicle, was attempting to remove someone from a dwelling, residence, or occupied vehicle, or if the person using deadly force believes that un unlawful entry or forcible act was occurring, or had occurred.
Some of the opposition to HB 1212 came in the form of constitutional arguments which say that Section 7 of the bill strips people of their right to be presumed innocent until proven guilty.
“A person who unlawfully enters or attempts to enter a person’s dwelling, residence,HB 1212, Section 7
or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act
involving force or violence.”
In essence, this section of the bill asserts that any person accused of trespass is predetermined to be guilty of attempting to commit a violent crime.
Section 8 of the bill goes even further in service of expanding the scenarios in which force can be used, allowing for defense of property other than dwellings.
“A person is justified in using or threatening to use force, other than deadly force,HB 1212, Section 8
against another if and to the extent the person reasonably believes that using or
threatening to use force is necessary to prevent or terminate another’s trespass on, or
criminal interference with:
(1) Real property other than a dwelling;
(2) Personal property that is lawfully:
(a) In the person’s possession;
(b) In the possession of a member of the person’s immediate family or
(c) In the possession of one whose property the person has a legal duty to
Section 9 builds off of Section 8, explaining allowable use of deadly force for defense of property other than a dwelling.
“A person is justified in using or threatening to use deadly force only if the person reasonably believes that the use of deadly force is necessary to prevent the imminent commission of a forcible felony.HB 1212, Section 9
A person who uses or threatens to use deadly force in accordance with this section
does not have a duty to retreat and has the right to stand his or her ground, if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where the person has a right to be.”
The bill defines a forcible felony as follows:
“Arson, assault, burglary, kidnapping, manslaughter, murder, rape, and robbery, and any other felony that involves the use of or the threat of physical force or violence against a person”HB 1212, Section 1
Section 1, in combination with Sections 5 and 9, puts together a system wherein a citizen can claim justification for the use of deadly force to stop or prevent nearly any felony crime they believe may be occurring.
One opponent, offering testimony on behalf of the group Moms Demand Action for Gun Sense in America, posited that this would create a situation where a citizen could shoot dead a person they believed was attempting to break into their car and claim justification under HB 1212.
Perhaps one of the most divisive elements of the bill is found in Section 10, where the bill states that a person justified in using deadly force would then be immune from all criminal or civil liability.
“A person who uses or threatens to use force, as permitted in §§ 22-18-4 to 22-18-4.7, inclusive, is justified in such conduct and is immune from criminal prosecution and from civil liability for the use or threatened use of such force brought by the person against whom force was used or threatened, or by any personal representative or heir of the person against whom force was used or threatened.”HB 1212, Section 10
The bill goes on to say that such immunity would not apply if the person force was used against was an identified law enforcement officer preforming official duties.
Opponents lambasted this section for seeking to remove the right of the family of a victim to seek compensation for an unnecessary killing. Section 10 would also codify that if a civil suit were attempted and the defendant was found to qualify for immunity, the plaintiff could end up having to pay the defendant’s court fees.
“The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by a defendant in the defense of any civil action brought by a plaintiff, if the court finds that the defendant is immune from prosecution in accordance with this section.”HB 1212, Section 10
Proponents of the bill say that Section 10 is intended to deter “frivolous lawsuits,” but Senate Judiciary Chairman Arthur Rusch pushed back on that claim, arguing that this section does not deter frivolous lawsuits, but rather all lawsuits.
Section 12 of this bill, if signed into law, will also repeal the following existing statutes:
- 20-9-8 — Right to use force in defense of persons or property.
- 22-5-9 — Resistance to public offenses permitted.
- 22-16-34 — Justifiable homicide–Resisting attempted murder–Resisting felony on person or in dwelling house.
- 22-16-35. Justifiable homicide–Defense of person–Defense of other persons in household.
The striking of current justifiable homicide laws that would be done by Section 12 was a particular point of contention for opponent Paul Bachand, speaking on behalf of the State’s Attorney’s Association. We reached out to Mr. Bachand for further comment on this bill, but have not heard back.
KELOLAND News has also reached out to representatives from the South Dakota Trial Lawyers Association, Sioux Falls Police Department, ACLU of South Dakota, South Dakota Sheriffs’ Association and the Sioux Falls chapter of the South Dakota Fraternal Order of Police. The representatives from the South Dakota Trial Lawyers Association and the Sioux Falls Police Department declined to comment on this matter. We have not received a response from the Sheriffs’ Association or the Fraternal Order of Police.
KELOLAND News spoke briefly with a representative for the ACLU of South Dakota, but the person most relevant to the matter was unavailable at the time. The organization has made its position on the matter clear in the form of a statement on its website.
“The ACLU of South Dakota opposes House Bill 1212, legislation that would lower South Dakota’s already extremely low standards when justifying the use of force.”
“House Bill 1212 would expand the circumstances in which the state authorizes one person to kill another without any semblance of due process, raising serious civil liberties concerns.”ACLU of South Dakota
KELOLAND News also reached out to the Office of the Governor for an indication of whether the bill will be signed into law.
In response to the question, Noem’s director of communications, Ian Fury, says, “Governor Noem supports that legislation.”