By Jerry Kopel

 

 

Homeowner-husband was awakened late at night by a pounding at the door of his expensive home. The pounding continued more violently.

 

Homeowner sat on the steps leading to the second floor. In his lap he held a gun. The front door dropped to the ground, broken from its latches. The huge, muscled intruder began to enter the house. Homeowner raised the gun and fired, killing the intruder.

 

It turned out the intruder was quite drunk and was looking for a house in the next block.

 

Sounds like something you recently read about in the papers? It happened in Colorado twenty years ago and was one reason the legislature passed a law nicknamed "Make My Day" . There was a movie starring Clint Eastwood portraying a detective holding a gun over a criminal lying on the ground who was contemplating going for his own gun. "Go ahead" says Eastwood, "make my day".

 

In September of 2005, according to the press, a 19-year-old drunken male at night broke into a dwelling a block from his own home in Longmont, entering through a rear window,  and began moving through the house.

 

The homeowner woke up, and according to the press, saw the young man advancing, yelled at him to get out. The young man continued to advance and the owner fired his gun, wounding the intruder.

 

I agree with the initial  judgment of the Weld County Sheriff's department that the homeowner is immune from civil and criminal liability for using deadly force under CRS 18-1-704.5, the Make My Day law, not to be confused with the general self-defense statute CRS 18-1-704.

 

The pertinent language of Make My Day is:

 

1. The defendant was an occupant of the dwelling.

2. The other person made an unlawful entry into the dwelling.

3. The defendant had a reasonable belief that such other person had committed a crime in the dwelling in addition to the entry, or is committing or intends to commit a crime against a person or property, ...and

4. The defendant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant of the dwelling.

 

Then the defendant is justified in using any degree of physical force, including deadly physical force.

 

The immunity from civil liability extends to defendant being an errant marksman wounding or killing an innocent bystander.

 

The bill, HB 1361 was sponsored by then-Rep. Vickie Armstrong, and almost did not make it out of House Judiciary Committee. She testified as to what the bill did, and the District Attorney lobbyist urged a "no" vote, pointing out the coverage by the self-defense statute. In 1985 there were only 18 Democrats in the 65 member House and Judiciary's 11 members had three Democrats.

 

A Republican moved to kill the bill. I seconded it. Three Republicans voted to postpone indefinitely as did to two Democrats. The motion lost 5 to 6.

 

Final version of the bill was a rewrite by the District Attorney lobbyist. It passed the House 53 to 9 and the Senate 32 to 0. Many legislators argued the final version did "nothing new".

 

But dire predictions of what the bill would cause proved accurate in the early years. Dr. William Wilbanks, a criminologist at Florida International University, was author of "The Make My Day Law" a study of all 23 Colorado cases from 1985 through 1987.

 

Three were drug deals gone bad, one was a landlord-tenant dispute, six involved disputes between friends, five involved disputes with police, four involved neighbors, and four were love triangle cases.

 

Except for several of the police cases, none involved strangers, and "strangers" were the original rationale for Make My Day.

 

As to strangers, certainly three cases in the past several months, including the Longmont shooting, would have qualified under Make My Day or the self-defense law. The Colorado woman who recently fired her gun but missed wounding or killing a potential rapist would have automatically qualified if the bullet had struck the intruder, as would the Boulder couple who killed an intruder.

 

Wilbanks pointed out correctly that some of  the language in the law needs to be clearer. Unfortunately, legislators are wary of touching Make My Day with the proverbial ten-foot pole.

 

The law, passed in 1985, has never been amended.

 

(Jerry Kopel served 22 years in the Colorado House.)