It is ironic that "Make My Neighbor's Day" is being considered in the legislature ten years after "Make My Day" first surfaced.
Ironic because the original HB 1361 (and not the heavily revised version that became law) almost died on March 7, 1985 in House Judiciary Committee, which then consisted of eight Republicans and three Democrats. Remember, in 1985 there were only 29 Democrats in the 100-member legislature, not the 40 presently ensconced.
Chief House sponsor Vickie Armstrong testified in favor and Ray Slaughter, executive director of the District Attorney's Council, testified against the bill. That morning, the Denver Post had run a strong opposition editorial.
"Under this bill" wrote the Post "a frightened homeowner would be justified in shooting first and asking questions later, whether or not a life-threatening situation actually existed. Pulling the trigger would become standard procedure, rather than the last resort. This would hardly encourage the responsible use of weapons. As cops joke morbidly in Texas and California, where such laws already have been enacted `If you shoot somebody, just make sure you keep him in the house'".
In Judiciary Committee, Rep. Bonnie Allison made a motion to postpone the bill indefinitely. Voting to kill were Allison, Grant, Kopel, Markert, and Wham. Voting to save were Bath, Berry, Faatz, Mutzebaugh, and Romero. Casting the deciding vote was Judiciary Chairman Don Mielke, who voted to save. On the same 6 to 5 vote, the bill passed to the floor.
The original bill "presumed" a homeowner acted reasonably whenever he used deadly force against anyone who had broken into a dwelling. Supporter Mielke admitted in legislative debate that this version "might have permitted homeowners to shoot a fleeing intruder or even a child who accidentally wandered into a home." The bill passed the House without amendment.
In Senate State Affairs Committee, Denver District Attorney Norm Early pleaded (with no effect) that "No legitimate homeowner has ever been filed on in the history of the state for killing an intruder. It has never happened."
Senate sponsor Jim Brandon allowed two amendments. One immunized shooters from civil liability. The second warned there are some strangers you had better not shoot, such as a security guard employed by the state, an authorized investigator of the state lottery commission, or a district wildlife manager. They were part of the plethora of persons designated "peace officers".
Obviously the intent was to protect the police officer who breaks into a house on a drug bust and happens to break into the wrong house. Of course, that is exactly when the occupant would most likely pull the trigger.
The House said "let's go to conference" especially when Gov. Lamm indicated he would veto the bill. Conferees Armstrong, Mielke, Bob Shoemaker, Brandon, Ray Powers and Gallagher approved an entirely new bill basically written by the district attorneys, a decision the DAs would soon regret.
It didn't take long after Gov. Lamm signed the bill for it to be used. Perhaps the most notorious example was David Guenther who, on April 20, 1986, shot at three neighbors, one of whom was banging on his door and fighting with Guenther's wife, and two who were some distance from his house. One died, the others were wounded.
At pretrial hearing, a district court judge dismissed the case under "Make My Day". Guenther was free. The district attorney appealed to the Colorado Supreme Court. On March 1,1987, while the case was on appeal, Guenther shot and killed his now-estranged wife in cold blood, in front of their two young children on a city street, and seriously wounded his wife's adult companion. Fortunately, "Make My Day" didn't apply, and Guenther was sentenced to life in prison for first degree murder.
On July 13, 1987, the Colorado Supreme Court upheld the constitutionality of "Make My Day", stating the district judge was wrong to place the burden on the DA to prove beyond a reasonable doubt that Guenther wasn't entitled to immunity. The court then laid down guidelines:
1. The burden is on defendant to prove by a preponderance of evidence that he is entitled to a dismissal on the basis of statutory immunity.
2. Even if defendant loses at a pretrial hearing , he can still raise the issue as an affirmative defense in trial.
3. Defendant would be entitled to immunity from prosecution for any force used against any person who actually entered the dwelling, but would not be immune from prosecution for any force DIRECTED against non-entrants.
The court added, gratuitously, "The immunity created by section 18-1-704.5 (3) is an extraordinary protection which, so far as we know, has no analogue in Colorado statutory or decisional law."
The decision didn't please the Rocky Mountain News which editorialized: "It still has the potential to let criminals go free. In other words, the case for repeal stands. To put it generously, 'Make My Day' was foggily drafted.
Foggily drafted? You bet! And the DAs have to accept most of the blame. One example, as I wrote in a newsletter report to constituents in late 1985:
"Under 'Make My Day' the parents of the dead child not only cannot obtain criminal charges against their neighbor for his NEGLIGENT actions, but they also cannot sue him for the death of their child. The legislature decided that a negligent marksman's pocketbook has greater sanctity than the innocent child's life."
Another proof of "foggy drafting" came from a 1991 Colorado Appellate Court dissent which pointed out the statute uses the terms "home" and "dwelling", and they don't mean the same thing.
Ray Slaughter, who worked with the conferees as the final bill was drafted, told the Rocky Mountain News on Dec. 10,1990 that "he's changed his mind about the law." He said "I think one has to question whether we all did the right thing years ago. It ain't worth it if it's letting real murderers set up murders and get away with it."
In part, Slaughter said his opinion changed after reading a study of Colorado's law by Dr. William Wilbanks, a criminologist at Florida International University. Even Don Mielke indicated in several newspaper interviews that after he became Jefferson County DA, he tried unsuccessfully to get the original sponsors to agree to some revisions.
Certainly there is no reason to use "home" and "dwelling" interchangeably, and homeowner immunity should apply only against the perpetrators who engage in crime, not innocent victims.
As I prepared this column, former State Sen. Jim Brandon urged me to read Wilbanks book "The Make My Day Law" and I have. In next week's Statesman, I'll report to you on the "loopholes" Dr. Wilbanks discovered in our law, and a few of the changes he would recommend.
Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.
Four questions. As a young boy growing up in the Jewish faith, "four questions" were what I asked, standing in the company of seated elders, on the first night of Passover. But today, "four questions" are instructions given jurors as they decide whether defendant in a criminal case is entitled to immunity under "Make My Day."
Dr. William Wilbanks, is author of "The Make My Day Law" a study of 23 Colorado cases from 1985 to 1987 in which that law was used. His book prints the court's instruction when the case is not dismissed at a pre-trial hearing.
"It is an affirmative defense to the crime of murder in the second degree that the defendant used any degree of physical force, including deadly force, against another person under the following circumstances:
1. The defendant was an occupant of a dwelling.
2. The other person made an uninvited 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 uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry; and
4.The defendant reasonably believed that such other person might use any physical force, no matter how slight, against any occupant of the dwelling."
Using the "four questions" Dr. Wilbanks points out some unintended consequences from present language of the statute.
1. "The defendant was an occupant of the dwelling." Wilbanks writes:
"...if fifty people were at a party...any one of those present could claim protection under Make My Day...even though the actual homeowner (the host) might have refrained from using force."
2. "The other party made an uninvited entry into the dwelling".
Wilbanks would change "uninvited" (which appears twice in the statute) to "unlawful" (which appears once) because "unlawful is a broad term and includes entries that are "uninvited" as well as "forcible".
"...what if husband and wife argue and the wife throws the husband out of the house. If he attempts to re-enter the house, is he an intruder under Make My Day? Suppose that he makes an uninvited (but lawful---since he is a co-resident) entry and threatens her with a beating. Did the legislature intend that she be able to claim Make My Day as a defense if she shoots and kills him?"
"Now it appears that under Make My Day the homeowner had better determine if the person at his bedroom door made an unlawful and uninvited entry, as the law requires that he must be correct enough about this fact....a reasonable belief is NOT enough.
"If the person at the door turns out to be his daughter's boy friend sneaking to her room at her request, the 'shooter' will be excluded from Make My Day protections, since his reasonable belief as to the nature of the entry was incorrect."
3. "The defendant had a reasonable belief that such other person...is committing or intends to commit a crime against a person or property." In the 23 cases reviewed by Wilbanks, this question was not a problem for defendant, if he can credibly testify as to this "reasonable belief". It is extremely difficult for prosecution to rebut.
4. "The defendant reasonably believed that such other person might use physical force, no matter how slight, against any occupant of the dwelling." In the 23 cases Wilbanks studied, this was not a problem. In most of the cases, the victim did have some sort of weapon -- golf club, knife, gun, fists combined with "rage".
Wilbanks points out the problem with present language in Make My Day is that defendant's response does not have to be reasonable. In a number of cases, after the victim is no longer able to "participate", the defendant continued to inflict damage. Wilbanks writes about a case where defendant stabbed the victim 32 times and even kept stabbing him after he had fallen to the floor. The case was dismissed under Make My Day.
"There is simply no limit on the use of force by the citizen once the four conditions are met...the stabbing of an intruder who no longer poses a threat appears to be legal under Make My Day as the 1985 law does not indicate the threat has to be continuing."
What about a fleeing criminal under Make My Day? Wilbanks writes:
"The U.S. Supreme Court in Garner vs. Tennessee ruled that a police officer cannot shoot a fleeing but unarmed burglar, but it appears that in Colorado the question as to whether a homeowner can do so is left unresolved by Make My Day.
"Surely the legislature should address this issue and make its intent clear as to the legitimacy of pursuit and whether pursuit can continue after the intruder exits the house."
In all the cases researched by Wilbanks, three were drug deals gone bad, one was a landlord-tenant dispute, six involved disputes between friends, five involved disputes with the 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 .
Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.
The Make My Day Law: Colorado's Experience in Home Protection. by Dr. William Wilbanks of Florida International University. copyright 1990, University Press of America, Inc.
Copyright 2015 Jerry Kopel & David Kopel