Anderson v. Streeter

#31167-a-SPM
2026 S.D. 17

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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KELLY ANDERSON, Plaintiff and Appellant,

v.

DAVID STREETER, Defendant and Appellee.

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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
FALL RIVER COUNTY, SOUTH DAKOTA

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THE HONORABLE ROBERT GUSINSKY
Judge

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ERIC M. SCHLIMGEN
JOHN SPARKS, Legal Intern of
Schlimgen Law Firm, LLC
Spearfish, South Dakota Attorneys for plaintiff and
appellant.

MATTHEW HAYS MCCOY
Custer, South Dakota

J. SCOTT JAMES of
Southern Hills Law, PLLC
Custer, South Dakota Attorneys for defendant and
appellee.

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CONSIDERED ON BRIEFS
FEBRUARY 11, 2026
OPINION FILED 03/11/26
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MYREN, Justice

[¶1.] David Streeter shot Kelly Anderson in the chest after Anderson

confronted him at his home. Anderson filed a civil lawsuit against Streeter.

Streeter moved to dismiss, claiming that he acted in self-defense and was immune

from civil liability under SDCL 22-18-4.8. Anderson requested a continuance of the

immunity hearing, contending he needed additional time to obtain and review a

transcript of grand jury proceedings related to Streeter’s conduct on the day of the

shooting. The circuit court determined the grand jury transcript was inadmissible

and denied Anderson’s motion for a continuance. After conducting the immunity

hearing, the circuit court concluded that Streeter was justified in exercising deadly

force in self-defense under SDCL 22-18-4.1 and was immune from civil liability

under SDCL 22-18-4.8. Anderson appeals. We affirm.

Factual and Procedural Background

[¶2.] Vivos xPoint Investment Group, LLC (Vivos) is a community of

decommissioned military bunkers located outside of Edgemont. In July 2023,

Streeter purchased a bunker and began preparations to move in with his family.

After moving into the bunker, Streeter began having problems with the people who

managed the Vivos community. He testified that after reporting problems with his

septic system to Vivos management, Vivos employees were continually “circling my

bunker and facing my bunker and actively filming us” as retaliation for making the

complaint. Streeter also testified that Vivos employees were frequently “flipping us

off. Just making signs with their - - with their hands as they’re driving by, things of

that nature, speeding up and down the road” and making lewd gestures in front of

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Streeter’s wife. Streeter testified that this behavior by Vivos employees continued

for months. Streeter contacted law enforcement about these issues, but the conduct

continued.

[¶3.] Streeter testified that on August 23, 2024, J.R. Rodriguez, a Vivos

employee, sped by Streeter’s bunker at a high rate of speed. Because Streeter’s

prior attempts to involve law enforcement had not succeeded, he decided to take the

initiative. Streeter got in his vehicle and followed Rodriguez. Streeter caught up to

Rodriguez, opened the door on his vehicle, put his “hand on [Rodriguez’s] chest,

[and] pushed him into his seat.” Streeter explained that he told Rodriguez that he

was tired of Vivos employees speeding past his bunker.

[¶4.] Roughly forty-five minutes after Streeter’s confrontation with

Rodriguez, Rodriguez and another Vivos employee, Tom Dundas, drove to Streeter’s

property. Dundas explained to Streeter that Vivos employees were working on a

road near Streeter’s bunker. Streeter demanded that Vivos employees stop driving

by his bunker at high speed. Although highly charged, this confrontation did not

escalate into physical violence.

[¶5.] Dundas and Rodriguez returned to their worksite and told Anderson

about their interactions with Streeter. Anderson became upset with Streeter’s

behavior and decided to confront Streeter himself. Anderson sent a series of text

messages to Chris Yellow Thunder, a mutual acquaintance of Streeter and

Anderson, describing his intentions. The text message exchange, which was

admitted at the immunity hearing, read as follows:

Anderson: I’m about to fuck his ass up.

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Anderson: I have[n’t] said anything about this to any
one but you.

Anderson: You might want to come down to Streeter’s.

Yellow Thunder: Dave is my guy Kelly… beef needs to go
away… I’m coming down.

Anderson: I’m sorry.

Anderson: I’m almost there.

Anderson: What he did isn’t right.

Anderson: And I’m gonna educate this mother fucker.

[¶6.] After this exchange with Anderson, Yellow Thunder called Streeter,

told him what Anderson had said, and began driving to Streeter’s bunker. Streeter

received Yellow Thunder’s warning roughly forty-five minutes after his

confrontation with Dundas and Rodriguez. Streeter heard a vehicle coming while

he was on the phone with Yellow Thunder. Anderson arrived in a skid steer, which

he drove to the edge of Streeter’s property. Anderson began yelling threats at

Streeter from the roadway in front of Streeter’s bunker.1 In response, Streeter drew

his handgun and pointed it at Anderson.2

[¶7.] Streeter warned Anderson to leave the premises several times.

Anderson asked Streeter, “Have you ever killed someone?” After Streeter

responded that he had, Anderson stated that he had killed somebody “with his bare

1. A video of the confrontation and shooting was admitted into the record. In
the circuit court’s written findings of fact and conclusions of law, it explained
that it “found the video especially probative in assessing the facts.”

2. Streeter testified that, as a former law enforcement officer, he always carries
a firearm on his person.
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hands.” Streeter testified that based on Anderson’s words and actions, he “was in

fear for myself, for my daughters, and for all of my grandkids.” Streeter explained

that “[a]t that point in time he advances towards me and yells ‘I’m here for you,

Streeter,’ something to that effect on film, and then he came at the fence and that’s

when I engaged him.” Streeter later explained, “When he started to and advance

and yelled whatever he yelled there, as - - his body posture changed, his facial

expression changed, his - - everything about him at that point in time was a credible

threat to me through my training, was a credible threat that he was going to harm

me and harm my family, so I engaged him at that point in time.”

[¶8.] Streeter shot Anderson once in the chest. Streeter testified that he

fired as Anderson advanced, and they were only a foot or so apart. He testified that

he did not believe the fence around his property diminished the threat Anderson

posed because “the fence is only four foot high.” Streeter estimated that nearly an

hour and a half had passed between his initial confrontation with Rodriguez and

Anderson’s arrival at his bunker.

[¶9.] After shooting Anderson, Streeter kept his handgun pointed at

Anderson and instructed his daughter to notify law enforcement and to grab a

“medical bag.” After Anderson became immobilized, Streeter, an emergency

medical technician, rendered medical aid by placing compression on the wound to

control the bleeding. Streeter and Yellow Thunder loaded Anderson into Yellow

Thunder’s pickup and transported him part of the way to town to meet the

ambulance. Streeter continued to render assistance as Anderson was transferred to

the ambulance. Anderson survived the gunshot.

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[¶10.] In September 2024, a grand jury was empaneled in Fall River County

to determine whether Streeter should be criminally charged for his conduct on

August 23. The grand jury charged Streeter with simple assault, based on his

initial interaction with Rodriguez (See ¶ 3), but it did not bring any charges related

to Streeter’s shooting of Anderson.

[¶11.] In October 2024, Anderson filed this civil lawsuit, claiming Streeter

was liable for assault and battery. Streeter answered and moved to dismiss,

asserting that he was immune from civil liability under SDCL 22-18-4.8 because he

was acting in self-defense and was justified in using deadly force. After Streeter

answered, Anderson served discovery requests. Streeter did not respond to these

requests. Instead, he filed a separate motion to dismiss, again asserting immunity

from civil liability under SDCL 22-18-4.8. In his motion to dismiss, Streeter

requested that the circuit court “[s]tay all discovery pending resolution of this

motion.” Anderson opposed Streeter’s requests and filed a response. Streeter then

filed a reply, which cited a transcript of the grand jury proceedings. Because

Streeter did not respond to Anderson’s discovery requests, Anderson filed a motion

“to deem requests for admissions admitted.” Streeter opposed Anderson’s motion,

citing the prayer for relief in his motion to dismiss.

[¶12.] In early March 2025, the circuit court held a hearing on the

outstanding motions. It denied Anderson’s motion to have his requests for

admission deemed admitted, granted Streeter’s request for an immunity hearing,

and denied Streeter’s motion to stay discovery (but limited discovery to the issue of

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civil immunity). The circuit court scheduled the immunity hearing for May 19,

2025, and gave the parties sixty days to complete their immunity-related discovery.

[¶13.] On May 16, Anderson filed a motion “to address pre-evidentiary

hearing matters,” and a motion for a continuance. In both motions, Anderson made

various requests related to the grand jury transcript that Streeter had previously

cited. Anderson requested:

(A) Defendant immediately provide all exhibits referenced in the
pleadings; (B) Plaintiff have access with immunity of any
statutory violation to view the [grand jury transcript] in
preparation of the Evidentiary Hearing; (C) Defendant answer
how it obtained the [grand jury transcript] initially; and (D)
Defendant be barred from utilizing the [grand jury transcript]
for impeachment or any other purpose in this proceeding.

In Anderson’s motion for a continuance, he requested that, instead of conducting the

immunity hearing on May 19, the circuit court should hold a telephonic hearing

limited to the issues he raised concerning the grand jury transcript.

[¶14.] The circuit court held the immunity hearing on the scheduled date and

addressed Anderson’s motions at the outset. The circuit court inquired why

Anderson’s counsel waited until days before the immunity hearing to raise issues

regarding the grand jury transcript. Anderson’s counsel admitted: “I waited in

preparation for this proceeding and admittedly, I apologize to the [c]ourt for that

delay, I did not immediately start preparing for this hearing after the last hearing,

and I waited to start preparing and I admit to the [c]ourt that that was delay on my

part.” After concluding its discussion about the grand jury proceedings with both

parties, the circuit court ruled that the grand jury transcript was inadmissible and

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stated that it would not rely on it when assessing Streeter’s self-defense immunity

claims. The circuit court then denied Anderson’s request for a continuance.

[¶15.] At the end of the immunity hearing, the circuit court concluded that

Streeter was justified in using deadly force in self-defense under SDCL 22-18-4.1

and was immune from civil liability under SDCL 22-18-4.8. It later entered written

findings of fact and conclusions of law. Anderson appeals.

Decision

1. Whether the circuit court abused its discretion when
it denied Anderson’s motion for a continuance.

[¶16.] Anderson claims the circuit court abused its discretion in denying his

motion for a continuance. He contends that the immunity hearing should have been

continued because he did not have the opportunity to view the entire grand jury

transcript. He claims a continuance would have prejudiced neither party, that he

did not delay in bringing the motion, and that he was prejudiced by the circuit

court’s denial because there was potentially “impeachment testimony, additional

witnesses, or other valuable informat[ion]” in the grand jury transcript.

[¶17.] “A trial court’s decision to grant or deny a continuance is reviewed

under an abuse of discretion standard.” VOR, Inc. v. Est. of O’Farrell, 2025 S.D. 2,

¶ 35, 17 N.W.3d 252, 261 (quoting People ex rel. L.N., 2022 S.D. 8, ¶ 41, 970 N.W.2d

531, 544). “An abuse of discretion ‘is a fundamental error of judgment, a choice

outside the range of permissible choices, a decision, which, on full consideration, is

arbitrary and unreasonable.’” Melius v. Songer, 2025 S.D. 51, ¶ 52, 25 N.W.3d 801,

817 (quoting Hiller v. Hiller, 2018 S.D. 74, ¶ 19, 919 N.W.2d 548, 554). “The

granting or refusing [of] a continuance rests in the sound discretion of the court

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below, and its ruling will not be reversed, except for the most cogent reasons.”

VOR, Inc., 2025 S.D. 2, ¶ 35, 17 N.W.3d at 261 (alteration in original) (citation

omitted).

[¶18.] This Court has established four considerations that may guide a circuit

court’s assessment of a motion for a continuance:

(1) whether the delay resulting from the continuance will be
prejudicial to the opposing party; (2) whether the continuance
motion was motivated by procrastination, bad planning, dilatory
tactics or bad faith on the part of the moving party or his
counsel; (3) the prejudice caused to the moving party by the trial
court’s refusal to grant the continuance; and (4) whether there
have been any prior continuances or delays.

Id. ¶ 36 (quoting Meadowland Apartments v. Schumacher, 2012 S.D. 30, ¶ 17, 813

N.W.2d 618, 623).

[¶19.] The immunity hearing was scheduled for May 19, 2025, a Monday.

Anderson filed his motion on May 16, 2025, the prior Friday. Anderson’s counsel

knew the grand jury transcripts existed well before the time he filed his motion for

a continuance. As Anderson’s counsel candidly admitted, “I waited in preparation

for this proceeding and admittedly, I apologize to the [c]ourt for that delay, I did not

immediately start preparing for this hearing after the last hearing and I waited to

start preparing and I admit to the [c]ourt that that was delay on my part.” Based

on the timing of Anderson’s submissions and his counsel’s admissions to the circuit

court, Anderson’s counsel did not properly utilize the time the circuit court afforded

him to prepare for the immunity hearing, and the motion for the continuance was

an attempt to remedy his poor planning. See State v. Moeller, 2000 S.D. 122, ¶ 7,

616 N.W.2d 424, 431 (“A continuance may properly be denied when the party had

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ample time for preparation or the request for a continuance was not made until the

last minute.” (quoting Corson Vill. Sanitary Dist. v. Strozdas, 539 N.W.2d 876, 878

(S.D. 1995))).

[¶20.] Anderson’s counsel had sixty days to conduct discovery and to discern

whether the grand jury transcript contained the type of information he suggested.

He did not avail himself of that opportunity. At Anderson’s request, the circuit

court ruled that the grand jury transcript was inadmissible and prohibited Streeter

from relying on it during the immunity hearing because Streeter did not provide the

transcript in response to Anderson’s discovery request.3 Given these circumstances,

the circuit court did not abuse its discretion when it denied Anderson’s request for a

continuance.

2. Whether the circuit court erred when it concluded
Streeter was immune from civil liability under
SDCL 22-18-4.8.

[¶21.] This Court reviews a circuit court’s application of SDCL 22-18-4.8 de

novo. State v. Tuopeh, 2025 S.D. 16, ¶ 49, 19 N.W.3d 37, 55. A circuit court’s

factual findings “are reviewed under the clearly erroneous standard.” Id. (quoting

State v. Heney, 2013 S.D. 77, ¶ 8, 839 N.W.2d 558, 561–62).

[¶22.] For a defendant to avail himself of the immunity described in SDCL

22-18-4.8, he must first make a prima facie showing under SDCL 22-18-4.1. That

statute provides:

A person is justified in using or threatening to use deadly force if
the person reasonably believes that using or threatening to use

3. Given the circuit court’s ruling, whether the use of the grand jury transcript
in this civil proceeding complies with SDCL 23A-5-16 is not at issue in this
appeal.
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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.

SDCL 22-18-4.1. After the defendant makes his prima facie showing, the burden

shifts to the plaintiff to present clear and convincing evidence rebutting the

defendant’s self-defense claim. SDCL 22-18-4.8. If the plaintiff fails to present such

clear and convincing evidence, the defendant is justified in his use of deadly force

and “is immune from . . . civil liability.” Id.

[¶23.] The circuit court heard Streeter’s testimony and found him credible.

See News Am. Mktg. v. Schoon, 2022 S.D. 79, ¶ 32, 984 N.W.2d 127, 137

(“Determining the credibility of the witnesses is the role of the factfinder,” and this

Court gives “[d]ue regard . . . to the opportunity of the [circuit court] to judge the

credibility of the witness.” (citations omitted)). That testimony established that

Anderson notified Yellow Thunder via text message that he intended to attack

Streeter physically. Yellow Thunder relayed Anderson’s threats to Streeter.

Anderson confirmed his aggressive intentions when he began yelling threats upon

his arrival at Streeter’s home. Anderson then boasted that he had killed somebody

“with his bare hands.” After making these threats, Anderson lunged toward

Streeter, who responded to the threat with a single shot. Anderson did not present

any witnesses or other evidence to controvert Streeter’s testimony and evidence.

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[¶24.] Streeter made a prima facie showing of lawful self-defense under

SDCL 22-18-4.1, which Anderson did not rebut with clear and convincing evidence.

Based on the evidence presented, the circuit court did not err when it found that

Anderson’s verbal threats, in conjunction with his act of lunging toward Streeter,

would cause a reasonable person to fear for their life. Nor did the circuit court err

when it concluded, on this basis, that Streeter reasonably believed that deadly force

was necessary to prevent great bodily harm.

[¶25.] Anderson contends that Streeter had a duty to retreat because he “was

previously engaged in criminal activity, i.e., assault of [Rodriguez].” The circuit

court correctly concluded otherwise. SDCL 22-18-4.1(1) and -4.1(2) provide that a

person who uses deadly force has no duty to retreat and may stand their ground if

they are “[n]ot engaged in a criminal activity” and are “[i]n a place where the person

has a right to be.” Streeter’s assault of Rodriguez occurred roughly an hour and a

half before his use of deadly force against Anderson. As the circuit court noted,

Streeter “was in a place where he had the right to be—within the perimeter of his

own dwelling—and was not engaged in criminal activity at the time of the

shooting.”

[¶26.] The circuit court’s factual findings are not clearly erroneous, and it

correctly applied the statutory framework in SDCL 22-18-4.1 and -4.8. We affirm

its conclusion that Streeter was justified in using deadly force in self-defense under

SDCL 22-18-4.1 and that he was immune from civil liability under SDCL 22-18-4.8.

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Appellate attorney fees

[¶27.] In his appellate brief, Streeter requests appellate attorney fees. Under

SDCL 15-26A-87.3, appellate attorney fees may be awarded “where such fees may

be allowable.” Because SDCL 22-18-4.8 allows attorney fees at the circuit court

level, appellate attorney fees are also awardable by this Court. Streeter requested

appellate attorney fees in his appellate brief. However, he has not submitted a

motion or a “verified, itemized statement of legal services rendered,” as required by

SDCL 15-26A-87.3(1).

[¶28.] JENSEN, Chief Justice, and SALTER and DEVANEY, Justices, and

KLINGER, Circuit Court Judge, concur.

[¶29.] KLINGER, Circuit Court Judge, sitting for GUSINSKY, Justice, who

deemed himself disqualified and did not participate.

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