Make My Day Change

Jerry Kopel

11/21/2003

"Make My Day" never made my day.

The term comes from an old Clint Eastwood film about a detective holding a gun on an alleged criminal laying on the ground. "Go ahead" says Eastwood, "make my day".

The term is back in the news because of a recent slaying in Ault, Colorado, of Richard Hammock by neighbor Eric Griffin. According to Griffin, Hammock had blamed Griffin for wounding Hammock's dog. According to Griffin, Hammock went to Griffin's home carrying a three foot long two by two piece of lumber, threatened to burn down the home, refused to leave, and used the lumber to break a window in the front door. Griffin then killed Hammock with a 12-gauge shotgun, shooting through the front door.

The district attorney declined to charge Griffin because of the "Make My Day" law. That law passed the legislature in 1985 and has never been amended despite its sloppy language. The legislature in 1985 was veto-proof (71 Republicans and 29 Democrats) It was 47 to 18 in the House and 24 to 11 in the Senate.

House Judiciary Committee (8 Republicans, 3 Democrats) heard HB 1361 (Make My Day) by Rep. Vickie Armstrong. Rep. Bonnie Allison moved to kill the bill. Three Republicans and two Democrats (including me) voted to kill HB 1361. Five Republicans and one Democrat voted to pass the bill to the House for debate.

"Make My Day" circumvents CRS 18-1-704 which sets standards for when deadly physical force can be used in defense of a person. The final version of "Make My Day" became CRS 18-2-704.5:

(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into a dwelling, and when the occupant has a reasonable belief that such other person has 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 when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

Here are some changes suggested by Dr. William Wilbanks, a criminologist at Florida International University in his book "The Make My Day Law" about Colorado's statute. First, clean up the inconsistent language. A "home" is a "dwelling", but a "dwelling" is not always a "home". If a burglar breaks into an occupied hotel room, does "Make My Day" apply? An "unlawful entry" does not always have the same legal meaning as an "uninvited entry".

Second, stop occupant from further damage once intruder is unable to resist. Wilbanks reports a Colorado case where defendant stabbed intruder until intruder fell to the floor. He kept stabbing him a total of 32 times. The case was dismissed under "Make My Day".

Third (and this is my suggestion): Allow an innocent victim of defendant-occupant to sue for negligence. Occupant owns a gun but never fired it, confronts an intruder intent on burglary who leaves the front door open. Occupant believes himself in physical danger, closes his eyes and fires the gun. The bullet misses the intruder and hits his neighbor's child sitting on the steps of the home across the street. The child dies.

The parents cannot obtain criminal prosecution for the negligent act and cannot sue occupant for the death of their child. The legislature decided that a negligent marksman's pocketbook has greater sanctity that an innocent child's life.

MAKE-MY-DAY: EVOLUTION OF A BILL

AS INTRODUCED: HB 1361 passed the House in 1985 without being amended. It consisted on one paragraph added to 18-1-704 (2).

"(b) Notwithstanding the provisions of paragraph (a) of this subsection (2), any person using deadly physical force within his residence shall be presumed to have a reasonable ground to believe that he, a member of his family, or a member of his household is in imminent danger of being killed or of receiving great bodily injury when that force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters the residence and when the person using the force knows or has reason to believe that an unlawful and forcible entry has occurred."

AS PASSED: Language in parenthesis is our editorial explanation of a cross-reference. The law, CRS 18-1-704.5, has not been amended since passed.

(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 18-1-704 (which sets standards for when deadly physical force can be used in defense of a person) any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling , and when the occupant has a reasonable belief that such other person has 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 when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

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