From left, Rep. Kevin Jensen, Sen. John Wiik, Rep. Ryan Cwach, Sen. David Wheeler, Sen. Helene Duhamel
CREDIT SD LEGISLATIVE RESOURCE COUNCIL
A Stand Your Ground bill shot down by the Senate Judiciary committee has been resurrected and approved by the full Senate. Supporters of House Bill 1212 (twelve-twelve) say the bill clears up vague and outdated language in current self-defense statutes. But lawyers in the legislature say the bill replaces current self-defense law and wipes out decades of case law that interprets what self defense is and is not.
Representative Kevin Jensen is a prime sponsor of House Bill 1212, the Stand Your Ground bill based on a 2005 Florida law.
He also teaches gun safety and rights.
“Just about 2000 people have come through my classes, and I get the same question in every class, and that’s when it comes to the display of force rather than the use of force. And this bill attempts to clarify a lot of that.”
Jensen says his students want to know if state law allows them to simply brandish a weapon and use it as a deterrent, rather than pointing the gun and pulling the trigger.
“Our current laws are very confusing, vague, and don’t really justify certain actions by people.”
Jensen says this bill clears that up by defining what a reasonable person can do when placed in fear of great bodily harm or death.
Jensen notes that South Dakota has relaxed legal restrictions on firearms.
“We now allow anybody in the U.S. to come here and carry a gun.”
And he says these armed out-of-staters need to know under what circumstances they can defend themselves.
But Jensen says parts of the state’s self defense laws are 100 years old, with antiquated language that, in Jensen’s words, “make us look stupid.”
The bill passes through the House State Affairs Committee by a vote of 10 to 1.
Now the bill moves to the full House, slightly amended. Representative Kevin Jensen again introduces it.
Representative Ryan Cwach is a lawyer from Yankton. He asks Jensen a question:
“I wanted to focus on Section 7 here. What is the import of this presumption of unlawful entry?”
Section 7 says a person who unlawfully enters or attempts to enter a dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit a crime of force or violence.
Jensen offers an explanation.
“We’re seeing especially in the Sioux Falls area, is a lot of people are not locking their doors. People are walking in and attacking people and they’re walking in to steal things.”
Cwach shares an incident that happened to a friend.
“The neighbor next door just had a little too much to drink down at Carey’s, and he walked into the wrong apartment when he got to the building. Under this section, does this authorize the resident of that apartment to shoot the drunk who came into the room?”
Jensen says no.
“You still have to be able to justify your violence. You still have to be able to justify that. If you hurt somebody, yes, you’re going to probably get arrested. You don’t just get to shoot for free. I’m sorry, that’s just not the way the real world works.”
Cwach disagrees. He says the language in the bill doesn’t distinguish a situation when someone accidentally enters where he or she doesn’t belong.
“That happens. People make mistakes. But under this, if that person does that, regardless of whether it’s an accident or not, this law creates a presumption that that person is entering with the intent to commit an unlawful act involving force or violence. And when you read that with the rest of the bill, that gives that owner a lot of power to use deadly force, and that’s just asking for a tragedy.”
Cwach encourages representatives to vote the bill down, but the House approves it 61 to 7.
Now the Stand Your Ground bill goes to the Senate Judiciary. That seven-member committee contains five lawyers, including two retired judges.
The committee hears from Brian Gosch, a lawyer, former legislator, and lobbyist for the National Rifle Association.
Gosch says the NRA has supported Stand Your Ground bills all across the country, holding that self defense should not include a duty to retreat even if retreat is possible.
He gives an example of ineffective gun laws in Texas, in 2017, at Sutherland Springs.
“At the time, TX had a ‘no guns in church’ rule in statute. A bad guy came in and started shooting up the parishioners.”
Twenty-six people died in that shooting, and 20 more were injured.
Gosch says Texas then changed its law, and in 2019 there was a different outcome in a similar incident in the town of White Settlement.
“In that case, a parishioner pulled out his sidearm after two men had already been killed, and he shot the bad guy in the head.”
Gosch characterizes bill opponents as believing that parishioners should flee as a first resort and would want the gunman’s family to be able to sue the parishioner who stayed to fight rather than retreating.
“I don’t think that’s SD. And I think in SD we’re helpful to people whether it’s helping them change a tire or protecting them in a self defense situation.”
One of the opponents is Taneeza Islam, a lawyer, lobbyist, and executive director for South Dakota Voices for Peace and Voices for Justice. She says as she reads House Bill 1212, any person could use deadly force to prevent any felony anywhere under any circumstances.
“Allowing civilians to enforce laws based on their assumptions and suspicions makes us all vulnerable to increased shootings and homicides, and more particularly, Black, Indigenous, and other people of color.”
Islam reminds legislators of the death in Florida of Trayvon Martin, who was shot and killed when George Zimmerman questioned why the Black teen was walking through his neighborhood.
Islam says the growing diversity in South Dakota increases the possibility of that same type of conflict under this law.
“To me and my boys and the thousands of black and brown people in our state, it is a reality we live in every day.”
“This is a colorblind bill. Absolutely.”
Islam’s testimony is rebutted by Representative Kevin Jensen.
“I train church security teams, and I’ve had three security teams from mosques in SF. I don’t care who comes to me to learn about self-defense and what the rules and… I mean it doesn’t matter to me who they are. So I’m training Christian churches, mosques, every other… It absolutely is a colorblind issue.”
At the end of testimony, the Senate Judiciary votes the bill down by 4 to 2, with one excused.
That hearing takes place on March 4th. Later the same day, the full Senate smokes out the bill, and four days after that it’s up for floor debate.
Prime sponsor John Wiik carries the bill in the Senate.
“House bill 1212 actually introduces the possibility of reasonable force.”
Wiik says the definition of reasonable force is “hidden” in case law, not accessible to non-attorneys. He notes that the lawyers in the legislature have opposed this law because they say it’s not necessary.
“And for them it’s not, because they get it. They understand. They can read the case law. They know where to find it. They know how to interpret it. The rest of us don’t.”
One of the lawyers in the Senate is David Wheeler, who points out if this bill passes, all that case law developed over decades will no longer apply.
But he says that’s not the only problem with House Bill 1212.
Wheeler reads the definition of “forcible felony,” a term used in the bill.
“Arson assault burglary kidnapping manslaughter murder rape robbery and any other felony that involves the use or threat of physical force or violence against a person.”
Wheeler says these words are so broad, they include crimes that put no one’s life in danger.
“The word ‘assault’ is nowhere else defined in this bill. Under SD law, then, that’s going to include both simple assaults and aggravated assaults. So now, we’ve elevated every single bar fight in this state to a situation in which deadly force is authorized. You may not think that’s what you’re trying to do, but that’s what the words say.”
Senator Helene Duhamel works with law enforcement in Pennington County, and she also opposes the bill. She says on the up side, the bill clarifies that protected property includes outbuildings. But she says the five-page bill isn’t necessary to clean up five paragraphs of admittedly outdated language.
Duhamel notes that the South Dakota State’s Attorneys Association does not support the Stand Your Ground law.
She says as she understands it, someone breaking into a storage facility or a U-Haul could be shot.
“If the only way to stop you from stealing my property is to kill you, Section 9 says that’s okay. It’s justifiable homicide. It doesn’t say the response has to be proportionate to the threat.”
She says someone who appears to be breaking into a building could be a teen sneaking into a house to see a friend or a neighbor who lost the house key.
“In a way, I feel like this bill is taking us back to the Wild West. Don’t call the cops. Just open fire.”
Duhamel asks her fellow Senators to defeat the bill.
But the Senate passes the Stand Your Ground legislation by 21 to 14, and the bill has finished its journey through the South Dakota State Legislature.
If it takes effect, the attorneys say the old justifiable homicide laws and the case law analyzing them will no longer exist. Courts will start over, settling civil lawsuits and challenges to criminal charges that arise from this new statute.