SDLRC - Codified Law 22-18-4 - Force--Defense of person.

22-18-4. Force--Defense of person.

A person is justified in using or threatening to use force, other than deadly force, against another if the person reasonably believes that using or threatening to use force is necessary to defend against the other's imminent use of unlawful force.

A person who uses or threatens to use force in accordance with this section does not have a duty to retreat before using or threatening to use force.

Source: SDC 1939, § 13.2402 (3); SL 2005, ch 120, § 8; SL 2006, ch 116, § 2; SL 2021, ch 93, § 2.

22-18-4.1. Deadly force--Defense of person.

A person is justified in using or threatening to use deadly force if the person 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.

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:

(1) Not engaged in a criminal activity; and

(2) In a place where the person has a right to be.

Source: SL 2021, ch 93, § 3.

22-18-4.2. Defense of dwelling or residence--Force--Deadly force.

A person who is in a dwelling or residence, in which the person has a right to be:

(1) Has no duty to retreat;

(2) Has the right to stand his or her ground; and

(3) Has the right to use or threaten to use:

(a) Force against another, if the person reasonably believes that using or threatening to use force is necessary to defend himself, herself, or another against the imminent use of unlawful force; and

(b) Deadly force, if the person 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.

Source: SL 2021, ch 93, § 4.

22-18-4.3. Imminent death--Great bodily injury--Reasonable fear.

For purposes of § 22-18-4.2, a person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm, to himself, herself, or another, when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm if:

(1) The person against whom the defensive force was used or threatened:

(a) Was in the process of unlawfully entering a dwelling, residence, or occupied vehicle;

(b) Had unlawfully entered, a dwelling, residence, or occupied vehicle; or

(c) Had removed or was attempting to remove another against the other's will from a dwelling, residence, or occupied vehicle; and

(2) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful entry or an unlawful and forcible act was occurring or had occurred.

Source: SL 2021, ch 93, § 5.

22-18-4.4. Presumption of fear--Exceptions.

The presumption set forth in § 22-18-4.3 does not apply if:

(1) The person against whom the defensive force is used or threatened:

(a) Has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, including as an owner, lessee, or titleholder; and

(b) Is not the subject of a protection order, including a temporary protection order;

(2) The person sought to be removed is the child, grandchild, or otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used or threatened;

(3) The person who uses or threatens to use defensive force is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity; or

(4) The person against whom the defensive force is used or threatened is a law enforcement officer, who enters or attempts to enter a dwelling, residence, or vehicle in the performance of official duties and:

(a) The officer identified himself or herself as a law enforcement officer; or

(b) The person using or threatening to use force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

Source: SL 2021, ch 93, § 6.

22-18-4.5. Unlawful entry--Presumption.

A person who unlawfully 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 violence.

Source: SL 2021, ch 93, § 7.

22-18-4.6. Force--Defense of property other than a dwelling.

A person is justified in using or threatening to use force, other than deadly force, 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 household; or

A person who uses or threatens to use force in accordance with this section does not have a duty to retreat before using or threatening to use such force.

Source: SL 2021, ch 93, § 8.

22-18-4.7. Deadly force--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.

Source: SL 2021, ch 93, § 9.

22-18-4.8. Immunity--Burden of proof.

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, unless:

(1) (a) The person against whom force was used or threatened is a law enforcement officer, who was acting in the performance of official duties; and

(b) The officer identified himself or herself; or

(2) The person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer who was acting in the performance of official duties.

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.

In a criminal prosecution, once a prima facie claim of self-defense immunity has been raised by the defendant, the burden of proof, by clear and convincing evidence, is on the party seeking to overcome the immunity from criminal prosecution provided for in this section.

As used in this section, the term, criminal prosecution, includes arresting, detaining in custody, and charging or prosecuting the defendant.

Source: SL 2021, ch 93, § 10; SL 2022, ch 62, § 1.

22-18-4.9. Aggressor--Use of force--Justification not available.

Any justification for the use or the threatened use of either force or deadly force is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of a forcible felony; or

(2) Initially provokes the use or threatened use of force against himself or herself, unless:

(a) Such force or threat of force is so great that the person reasonably believes he or she is in imminent danger of death or great bodily harm and that every reasonable means to escape such danger has been exhausted, other than the use or threatened use of force that is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use or threatened use of force, but the assailant continues or resumes the use or threatened use of force.

Source: SL 2021, ch 93, § 11.