Did South Carolina privileges for legislators, voters, and court attendees prevent criminal arrest?

Plain-English summary

An Aiken public safety captain sought guidance on statutory immunity from arrest. The Assistant Deputy AG separated two kinds of protection. Provisions shielding legislators, voters, court attendees, and some military personnel from arrest except for “treason, felony or breach of the peace” were, in his reading, privileges from civil arrest. He said those exceptions encompassed crimes generally, regardless of technical classification.

Other statutes gave immunity from civil or criminal liability for particular protected conduct. The letter listed examples but did not decide whether a named person qualified under any one of them. The author said each provision would have to be examined against its own facts and circumstances.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a legislator be arrested for a crime despite the privilege described? A: The author said the treason, felony, and breach-of-peace exception covered crimes generally, leaving the privilege focused on civil arrest.

Q: Was immunity from liability the same as privilege from arrest? A: No. The letter separated activity-specific immunity from civil or criminal liability from constitutional and statutory privileges against civil arrest.

Q: Did the opinion decide whether a particular witness or volunteer was immune? A: No. It listed statutes and said application required examining the specific provision and facts.

Background and statutory framework

The letter cited South Carolina constitutional provisions for legislators and electors, Section 14-1-140 for persons attending courts of record, and § 19-9-40 among its examples of activity-specific immunity. It referred to an earlier office letter for the treatment of the traditional arrest privilege.

Citations and references

Statutes discussed: Section 14-1-140; § 19-9-40. Constitution discussed: Article III, Section 14; Article II, § 11.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-31-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/97march31abney.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

March 31, 1997

I
I

Captain R.D. Abney
Aiken Department of Public Safety
P.O. Box 1177
Aiken, South Carolina 29802
Re:

Informal Opinion

Dear Captain Abney:
You have asked for guidance in the areas of statutory prov1s10ns respecting immunity from arrest. There appears to be at least two categories of such immunity provisions contained in the Code. The first is that type of constitutional or statutory provision which purports to exempt certain types of protected activity from "arrest" except in cases of "treason, felony or breach of peace." This type of protection is outlined in my letter to you dated October 18, 1996. There, I cited a number of such provisions, including Section 14 of Article III of the South Carolina Constitution. In my letter to you, I noted that the exception from immunity in cases of "treason, felony and breach of the peace" is recognized to encompass all crimes, whatever their technical classification, and is deemed through such provisions to confer immunity from arrest only in civil cases. These provisions are found in Act III, § 14 [immunity from arrest except in cases of treason, felony and breach of the peace for members of General Assembly in going to and returning from legislative session]; Section 14-1-140 [all persons going to, attending on, returning from the courts of record of the state are free from arrest except on criminal process for treason, felony tand breach of peace]; Article II, § 11 [electors shall be privileged from arrest on the days of election during their attendance at the polls for voting and going to and returning therefrom except for treason, felony and breach of the peace]; Article XIII, §2 [volunteers and militia forces are exempt from arrest by warrant or other process while in active service or attending muster or the election of officers or while going to or returning therefrom except for treason, felony and breach of the peace];
§17-13-60 [militia duty]; §28-1-2160 [military duty].

~E~PosTOFFrcEBox 11549

•

Crn11MR1A

<:r 70,.,11

1 """

-

Captain R.D. Abney
Page 2

f

I
I

There is also found in the Code a number of statutes which make certain activity immune from civil and criminal liability. Among these are § 19-9-40 [resident witness to attend out-of-state proceedings]; § 19-9-110 [non-resident witness); § 15-74-30 [bona fide charitable or non-profit organizations receive distressed food in good faith]; § 16-3-1820
[filing a complaint for stalking or harassment]; §20-4-11 O; §20-7-540; §38-74-70; §43-33390; §43-38-40; §44-7-70; §44-7-520; §44-26-220; §44-30-50; §44-36-40; §44-38-80;
§44-43-380; §44-66-70; §44-77-90; §44-78-35; §44-115-140; §45-2-30; §48-1-300; and
§62-5-504. All of the foregoing provisions bestow immunity from criminal liability for various acts or activities. Each of these provisions would need to be examined individually in light of their particular facts and circumstances to determine the applicability thereof. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I am Very truly yours,

Robert D. Cook
Assistant Deputy Attorney General
RDC/elb