Could SC self-defense law at issue in Scott Spivey shooting case be changed?
Greg Hembree recalls having to call a staff meeting when South Carolina passed the law eliminating a person’s duty to retreat during a confrontation before using deadly force.
“We had to talk about what challenges that could create,” he said. “I remember thinking ... this could be trouble.”
Now a longtime state senator, Hembree was the 15th Circuit Solicitor in 2006 when the Legislature implemented the Protection of Persons and Property Act, commonly referred to as the “Stand Your Ground” law.
In addition to formalizing “Castle Doctrine,” a long-accepted common law allowing people to use force without attempting to retreat when faced with an assault within their home, South Carolina’s law expanded that no-retreat right to fight to anywhere a person is legally allowed to be.
Hembree wasn’t alone among SC law enforcement leaders to see the issues this new law — which passed without much debate — could create.
“There will be tragedies,” Ninth Circuit Solicitor Ralph Hoisington told The Post and Courier at the time.
The law, and how it’s being interpreted, now stands at the center of a 2023 fatal shooting in Horry County that has attracted national attention amid allegations of police misconduct.
North Myrtle Beach businessman Weldon Boyd and his friend, Kenneth “Bradley” Williams shot and killed Scott Spivey, 33, of North Carolina, Sept. 9, 2023, on Camp Swamp Road in what police have labeled a road rage incident.
Law enforcement agencies have declined to charge Boyd or Williams, who both assert they were acting in self defense, but evidence uncovered in a wrongful death lawsuit filed by Spivey’s family has cast doubt on that claim.
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That evidence, including recordings of Boyd’s phone calls in the aftermath of the shooting, has already led to two high-ranking Horry County police officers losing their jobs, the opening of a SLED investigation into police actions, and letters from county council and local state legislators asking Gov. Henry McMaster to consider reopening the case.
Attorney General Alan Wilson on Wednesday reiterated his office’s decision not to file charges, issuing a statement that his team’s legal opinion is that the “Stand Your Ground” law applies.
A “Stand Your Ground” hearing could be scheduled soon in the civil case that would determine if Boyd and Williams are entitled to civil and criminal immunity related to their actions during the shooting.
Hembree wasn’t one of the legislators to sign the letter to the governor — he wants to allow SLED to complete its investigation before deciding if he needs to get involved — but he does believe the attention this case is receiving could lead to a reevaluation of South Carolina’s self-defense law.
“Like many things in Columbia, (the law) is not a problem until it’s a problem,” Hembree said. “This may be that case.”
Origin and controversies of Stand Your Ground law
A majority of states currently have some version of a “Stand Your Ground” law, with Florida leading the way in 2005 amid lobbying from the National Rifle Association and South Carolina among a handful of states to quickly follow suit, according to news reports at the time.
South Carolina’s law got tested almost immediately when Gregory Duncan, of Greenville County, was granted immunity after fatally shooting Christopher Spicer during December 2006 in Duncan’s home.
Spicer was initially an invited guest within Duncan’s home, but Duncan asked him to leave after making inappropriate comments about his daughter, according to reports from The Greenville News, but when Spicer returned to confront Duncan’s girlfriend, Duncan shot him in the face with a pistol.
Thirteenth Circuit Solicitor Bob Ariail appealed the immunity ruling, arguing the new law was “too broad” and the determination missed “the intent of the legislation,” but the state Supreme Court agreed with the decision, The Greenville News reported.
The law became a hot topic nationally in 2012 after George Zimmerman, a neighborhood watch volunteer, shot and killed 17-year-old Trayvon Martin during a confrontation in Florida. Authorities initially declined to arrest Zimmerman, citing the “Stand Your Ground” law, though he was eventually arrested, and a jury acquitted him.
Critics of the legislation, which some call “Shoot First” laws, have pointed to studies that show homicides increase in states that pass these laws, but self-defense law experts suggest the actual difference between states that do and don’t implement “Stand Your Ground” standards is minimal.
Difference between retreat and no-retreat laws
Cynthia Ward, a William & Mary Law School professor who has researched and written extensively on these laws, told The Sun News that the objective standard for all self-defense claims throughout the United States is that a person has the right to use deadly force against someone only if that person has a reasonable belief that if they don’t use deadly force, they’re in imminent danger of being gravely injured by that person.
“It’s meant to be a last resort,” she said.
The only difference between states like Florida and South Carolina and states that require a duty to retreat is that if a jury decides a defendant knew they could have safely retreated before using deadly force, they lose their ability to claim self defense, Ward explained.
Ward said she believes most of the controversy surrounding “Stand Your Ground” laws comes from a misunderstanding of what constitutes self defense.
“I think people have acquired the idea that what counts is (if) you feel at risk, (you can use deadly force),” she said. “That’s not the law.”
Ward pointed to recent shooting cases involving Andrew Lester and Michael Drejka as examples of this apparent distortion.
Lester, 84, in 2023 shot 16-year-old Ralph Yarl through the door of his Kansas City home after Yarl rang his doorbell. Yarl was trying to pick up his younger siblings and had the wrong address. Lester told police he was “scared to death.” Lester died earlier this year after pleading guilty to second-degree assault.
Michael Drejka, 48, fatally shot Markeis McGlockton in 2018 in a convenience store parking lot after the unarmed McGlockton pushed Drejka to the ground while trying to defend his pregnant girlfriend. Drejka initially avoided arrest, as the sheriff invoked Florida’s “Stand Your Ground” law, but he was later convicted of manslaughter and sentenced to 20 years in prison.
Are Weldon Boyd and Bradley Williams entitled to immunity?
Ward, after reviewing news reports surrounding the shooting of Scott Spivey at the request of The Sun News, said she doesn’t believe Boyd and Williams seem to have a strong case for claiming self defense, while acknowledging police and prosecutors would know more specifics about the shooting than her.
Boyd’s motion for immunity under the “Stand Your Ground” law is pending a yet-to-be-scheduled hearing before Circuit Court Judge Eugene C. Griffith Jr.
When the hearing occurs, Boyd and Williams will have the burden of proof, from a “preponderance of evidence,” that their actions were protected under the law, meaning Judge Griffith finds their argument more likely true than not.
One key component of the shooting Judge Griffith may consider is that Boyd followed Spivey for several miles along Highway 9 before the fatal shooting occurred.
Police reports indicate the confrontation first began with Spivey driving erratically, waving his gun outside his truck window and causing Boyd to drive off the roadway. Boyd later called 911, telling the operator that “if he keeps this up, I’m going to shoot him” and “he’s trying to run from me” before Spivey pulled off onto Camp Swamp Road, where Boyd and Williams say he got out of his car and shot at them before they returned fire.
Jennifer Foley, Spivey’s sister, has said representatives of the S.C. Attorney General’s Office told her nothing that happened prior to Camp Swamp Road matters in explaining their decision not to charge Boyd or Williams.
Robert Kittle, a spokesman for the office, declined to answer whether that accurately describes their conversation with Spivey’s family. Kittle stated that the office doesn’t want to influence the case due to the possibility of a second review by another prosecutor.
Ward said that stance would be ignoring common law that states a defendant can lose the right to claim self defense if they provoked or created the difficulty that later necessitated the need to use deadly force.
In this case, while Boyd and Williams can assert Spivey initiated the confrontation by cutting them off and waving a gun out the window, Spivey loses his status as initial aggressor when he made it clear he was retreating, Ward explained.
“Self defense is supposed to be the justification only when absolutely necessary,” she said. “They had the choice at the point he was running away to do something nonviolent.”
Ward noted that recordings of Boyd’s phone calls where he told others he “chased him” and that Spivey “was terrified” bolster the argument he provoked the deadly confrontation.
Could South Carolina’s law be changed?
Foley, who has helped bring national attention to her brother’s case by reviewing and publicizing evidence she believes law enforcement overlooked, said she believes the intent of South Carolina’s “Stand Your Ground” law is good, but if it can be applied in a case like this, then lawmakers need to better clarify when it can be used.
Hembree and state Sen. Stephen Goldfinch both said they’d consider amending the current law, but neither had an interest in proposing such an amendment themselves.
If South Carolina were to repeal any portion of its law, it would likely be the first state to do so, according to a Sun News review of other states that have passed similar legislation.
Previous attempts by Democratic lawmakers, former Rep. Bakari Sellers in 2012 and former Rep. Harold Mitchell in 2014, failed without much consideration.
