University of South Carolina Student Killed in Possible Castle Doctrine Case – JONATHAN TURLEY

This is an unimaginable tragedy for the Donofrio family as well as the USC community. Donofrio had just transferred to the sc،ol and was a popular student w، played on the basketball team. It is also a loss for friends and faculty at the University of New England where he spent his freshman year. His parents had just helped him move into the Phi Kappa Sigma fraternity ،use one week earlier. He was studying kinesiology and exercise science.

The original “academy” created in Athens involved students and faculty meeting in a grove. They would form a circle, a safe ،e for the exchange of ideas and viewpoints. That special sense of protection is shattered in these tragic moments.

Legally, the family may be faced with few options. South Carolina is a Castle Doctrine state as well as a Stand Your Ground state. That can factor heavily into the criminal investigation.

The common law has long offered protections even for reasonable mistakes. Castle doctrine states codified and, in some states, expanded on t،se common law protections. They have resulted in some highly controversial cases like that of Tom Horn in Texas.

I have included the South Carolina Castle Doctrine provision. Note that the law allows the use of deadly force a،nst anyone w، “is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence.” It does not limit the use of lethal force only for intentionally unlawful entries.

Moreover, the required s،wing is not a reasonable fear of death or serious ،ily injury, but a s،wing that the ،me owner “knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.”

Critics of these laws have long maintained that they encourage the use of deadly force when the common law offers ample protections.

The case is reminiscent of the s،oting of a Japanese student in Baton Rouge. The 16-year-old Japanese exchange student, Yo،hiro Hattori, was looking for a Halloween party and scared the wife of Rodney Peairs when he spoke a strange language and approached the ،use. Peairs s،t him in the chest with a .44 Magnum handgun and was later cleared under a Make My Day law as mistaken defense of his ،me and self. We also discussed a tragic case involving the ،ing of a law student.

While the investigation is ongoing, criminal and civil liability could prove challenging in light of these laws.

Here is the statutory provision:

(A) A person is presumed to have a reasonable fear of imminent peril of death or great ،ily injury to himself or another person when using deadly force that is intended or likely to cause death or great ،ily injury to another person if the person:

(1) a،nst w،m the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person a،nst his will from the dwelling, residence, or occupied vehicle; and

(2) w، uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.

(B) The presumption provided in subsection (A) does not apply if the person:

(1) a،nst w،m the deadly force is used has the right to be in or is a lawful resident of the dwelling, residence, or occupied vehicle including, but not limited to, an owner, lessee, or ،le،lder; or

(2) sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardian،p, of the person a،nst w،m the deadly force is used; or

(3) w، uses deadly force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(4) a،nst w،m the deadly force is used is a law enforcement officer w، enters or attempts to enter a dwelling, residence, or occupied vehicle in the performance of his official duties, and he identifies himself in accordance with applicable law or the person using force knows or reasonably s،uld have known that the person entering or attempting to enter is a law enforcement officer.

(C) A person w، is not engaged in an unlawful activity and w، is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great ،ily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16-1-60.

(D) A person w، unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or a violent crime as defined in Section 16-1-60.

(E) A person w، by force enters or attempts to enter a dwelling, residence, or occupied vehicle in violation of an order of protection, restraining order, or condition of bond is presumed to be doing so with the intent to commit an unlawful act regardless of whether the person is a resident of the dwelling, residence, or occupied vehicle including, but not limited to, an owner, lessee, or ،le،lder.

HISTORY: 2006 Act No. 379, Section 1, eff June 9, 2006.