The Brown County jail is located in Aberdeen and connected to the Brown County Sheriff’s Office and courthouse. (Makenzie Huber/South Dakota Searchlight)
South Dakota lawmakers talked of home invasions and mass shootings when they strengthened self-defense protections in recent years, but the new laws are being used in scenarios that bear little resemblance to those hypotheticals.
Some situations don’t involve firearms, as with the Rapid City man accused of simple assault for taking down a 12-year-old boy on a playground, or the Mobridge man who’d been rude to a female server and knocked out the bar owner who confronted him about it. In both instances, the defendants claimed self-defense and exercised their right to an “immunity hearing” — a new kind of proceeding, created by the updated “stand your ground” laws, that allows those making self-defense claims to ask a judge to drop the charges before a trial commences.
The South Dakota Unified Judicial System has no way to track the number of immunity hearing requests filed in the state since the law creating them took effect on July 1, 2022. Such requests would only appear on court dockets under a generic term like “motions hearing” or “evidentiary hearing.”
Inquiries from South Dakota Searchlight to more than a dozen local state’s attorney’s offices revealed several cases in which defendants invoked their right to an immunity hearing. Of six cases explored in detail, five saw charges sustained.
Some prosecutors believe the law has done little more than open the door to time-consuming hearings for defendants with no business asking for one. Others see more nuance, and defense lawyers see value in another opportunity to prove a client’s innocence.
Beadle County State’s Attorney Michael Moore is currently pursuing attempted murder charges against a man who allegedly fired on another man through the window of a drug house. The alleged shooter has asked for an immunity hearing, arguing that his target fired first.
Moore called the stand your ground laws “political hogwash.”
“In my cases, it’s drug dealers who are using this law,” Moore said. “Did they want to pass this law to make it harder for me to prosecute drug dealers for shooting at each other?”
The prime sponsor of the first stand your ground bill from 2021 was Rep. Kevin Jensen, R-Canton.
Lawmakers passed a statute that protects “reasonable” acts of self preservation, Jensen said. He hadn’t heard much about its use in courtrooms, but “I think defense lawyers are twisting the meaning,” Jensen said.
The law is meant to exclude people who might defend a house or vehicle where felony crimes – such as drug distribution – are taking place, Jensen said.
In 2021, legislators passed Jensen’s stand your ground law to clear up when, where and under what circumstances someone can defend themselves from real or perceived threats within the state’s borders. The following year, they created pretrial immunity hearings.
In debates on the issue both years, supporters said older state law had been vague and outdated, leaving open the question of when people can use force for protection. Rep. Jon Hansen, R-Dell Rapids, was the prime House sponsor of the 2022 bill that created the immunity hearing. He framed it as a way to block jury trials for those who save the lives of themselves and others.
“Maybe you’re sitting at church in your pew and somebody comes in with a gun, or you’re at your house and somebody breaks in with a gun, and you’re forced to defend yourself,” Hansen said. “It’s unjust for you then, after that situation, to have to go defend yourself in court.”
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Self-defense laws strong before change
Self-defense laws have been a complicating factor for the family of 30-year-old Acey Morrison of Rapid City.
More than nine months have passed since she was shot to death, but prosecutors in Rapid City have yet to decide if they’ll charge the shooter with a crime.
The primary complication, according to Pennington County State’s Attorney Lara Roetzel, is the man’s self-defense claim. Morrison is not alive to offer her side of the story, and there were no other witnesses to the homicide.
South Dakota’s laws on self-defense play a significant role in such cases, Roetzel said, and did so for years before tighter verbiage was added in 2021.
Simply put, any person who feels threatened by a person who isn’t a police officer on duty and reacts to protect themselves is generally immune from prosecution. The 2021 change didn’t affect that.
Since the creation of the immunity hearing last year, however, prosecutors may now need to prove criminal allegations twice – first to a judge at the immunity hearing, then to a jury.
I always tell my clients, ‘If you’re in a bar fight, for God’s sake don’t win, because you’re the one who’ll get arrested.
– Paul Andrews, defense attorney
The immunity hearings needn’t relate to deadly force. The question of who started a bar fight, for example, is now ripe for discussion at an immunity hearing.
Lake County State’s Attorney Wendy Kloeppner has yet to take part in an immunity hearing, but said the victim in a bar fight case stopped cooperating with her when the alleged assailant filed a motion asking for one.
That’s not necessarily a bad thing, according to defense lawyer Paul Andrews, who represents the Mobridge man who punched the owner of a Glenham bar.
Andrews declined to talk about the specifics of that case, but said it’s not uncommon for the person who does the most damage in a fight to face criminal charges, regardless of who threw the first punch.
“I always tell my clients, ‘If you’re in a bar fight, for God’s sake don’t win, because you’re the one who’ll get arrested,” Andrews said.
Campbell County State’s Attorney Mark Kroontje of Herreid is acting as Walworth County state’s attorney in the Glenham bar fight case. The county’s prosecutor at the time of the crime had a conflict of interest and passed the case along to Kroontje. The defendant says several pokes to his shoulder from the bar’s owner justified a punch that knocked the owner out.
Kroontje, like many rural county prosecutors, is a part-time state’s attorney. When he’s not prosecuting cases, he works as a defense attorney.
As a prosecutor, he saw the immunity hearing as little more than a waste of taxpayer resources. As a defense lawyer, “I’ll take any tool I can use,” Kroontje said. “This is really giving me another chance.”
Extra chance to make a case
Minnehaha County State’s Attorney Daniel Haggar said his office has handled around 10 immunity hearings. They’ve lost one.
Defense lawyers have asked for far more, he said. From Haggar’s perspective, the request for a hearing is often a negotiation tactic.
“They might file that motion and say, hey, you know, ‘Here’s our claim of self defense,’” Haggar said. “We could look at that and say that ‘Maybe there’s merit to that, here’s a plea bargain.’”
In the one case for which an immunity hearing led to a dismissal, he said, there was enough gray area that his office chose to drop all the charges.
“A prosecutor’s job is to get things right,” Haggar said. “It’s not to win.”
The practical impact of stand your ground is still being worked out by the courts, so there are open questions on the extent of its use.
The South Dakota Supreme Court was recently asked to decide if a defendant charged with and convicted of murder by a jury should have been entitled to an immunity hearing. That man, Ramon Deron Smith, was tried shortly after the initial 2021 update became law for a crime that took place before the laws changed. The Supreme Court has yet to rule on that case.
To prevail at an immunity hearing, a prosecutor must show by “clear and convincing evidence” that the defendant’s behavior was illegal. One judge in Pennington County, who sided with prosecutors, wrote at length on what such a standard might mean in the context of an immunity hearing.
In Beadle County, Moore disputes that the new law even requires an immunity hearing before a trial. The longtime Huron prosecutor said defense lawyers regularly move to dismiss charges after the prosecution rests its case but before the defense begins to present its case.
What essentially it has caused for us is that we have to have a little mini trial before the actual case even gets rolling. We have to put our witnesses, our victims on the stand. So basically, it's giving defense attorneys another opportunity to cross examine a victim of a violent crime.
– Roxanne Hammond, Pennington County deputy state's attorney
Defense lawyers could make their immunity claim at that point, Moore said.
“It’s my position that a judge can consider these things at the trial. Why do we have to consider these things first?” Moore said. “I don’t think the Legislature did a very good job laying out the procedure.”
Most prosecutors and judges have thus far taken the position that an immunity hearing can’t be denied in the face of a credible self-defense claim, though.
Pennington County Deputy State’s Attorney Roxanne Hammond, who is not involved in the Acey Morrison case, has argued in several immunity hearings.
At her most recent hearing, she presented witnesses who saw a man pursue and fire on a neighbor who’d wanted the man to stop playing his drums so loudly. The man was hurling insults at the victim’s girlfriend before firing his weapon, Hammond said. The victim survived.
“What essentially it has caused for us is that we have to have a little mini trial before the actual case even gets rolling,” Hammond said. “We have to put our witnesses, our victims on the stand. So basically, it’s giving defense attorneys another opportunity to cross examine a victim of a violent crime.”
The immunity hearing isn’t the only way the new laws come into play, according to Minnehaha County Public Defender Traci Smith. The new statutory language can have an impact with juries, she said, making them more apt to condone the use of force.
“We have seen it in their not guilty verdicts when finding that a person’s act of self-defense was justified,” Smith said.
Rep. Hansen, the prime sponsor of the bill creating the immunity hearing, did not return repeated calls from South Dakota Searchlight, and did not answer questions sent over email about the cases in which the right to an immunity hearing has been invoked.
The primary goal of the 2021 law, Rep. Jensen said, was to offer clarity in firearms cases. A person threatened by several people ought to be able to display a firearm to stop a potential attack without fear of a felony assault charge, he said.
“When you get into a situation, if it’s a life-and-death situation, do you have to wait until you’re almost dead to defend yourself?” said Jensen, who pulled most of the language for the law from a Florida stand your ground law passed in 2006. “A lot of it is designed so that you don’t have to use deadly force.”
At least some of the ripple effects of the new laws go beyond what lawmakers intended.
Another backer of the measures, Sen. John Wiik, R-Big Stone City, said that bar fights were not top of mind when he spoke in support of the stand your ground bills. His aim was to make it simpler for people to understand their right to defend themselves and their property.
“I think anybody who’s on their own property and defends themselves gets the benefit of the doubt, no matter who they are,” Wiik said.
That doesn’t mean a bar fight situation ought not come under scrutiny, Jensen said. The Canton lawmaker said that common sense on reasonable force should to come into play in court, but “if you’re truly defending yourself, if you weren’t the initial aggressor, you should not be prosecuted.”
Wiik, like Jensen, is not surprised that defense lawyers have used the law in situations that fall outside the bounds of the legislative imagination.
“Gray areas are being created more by attorneys than they are by legislators,” Wiik said. “The idea of a bar fight, I don’t think that ever entered our minds. It’s just being able to defend yourself and your property, wherever you are. And now we’re having people finding more creative ways to implement laws than we were creative writing them, I guess.”
Sen. David Wheeler, R-Huron, didn’t support the 2021 stand your ground law. Wheeler and other legislators who practice law said that the state’s pre-existing self-defense laws were enough to protect anyone who’d shoot at a home invader or an active shooter.
The following year, he supported the creation of the immunity hearing in the interest of clarifying how the courts apply the law.
With both pieces of the law in place, Wheeler, like Kroontje, said he’s ethically obligated to pursue an immunity hearing for his clients when they claim self defense.
“I can’t speculate that anyone was wanting to turn every bar fight into an immunity hearing. But that’s absolutely what the law did,” Wheeler said.
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This article first appeared in the South Dakota Searchlight, part of the States Newsroom network of news bureaus with the Louisiana Illuminator. It’s supported by grants and a coalition of donors as a 501c(3) public charity. South Dakota Searchlight maintains editorial independence. Contact Editor Seth Tupper for questions: [email protected]. Follow South Dakota Searchlight on Facebook and Twitter.
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