Jerry Kopel


What is there about living in Arvada that draws legislators to Make My Day bills? First, we had Rep. David Bath, R-Arvada, who in 1985 worked very hard to pass the law and coined that famous quote: "Sometimes, blowing dirtballs away is the reasonable thing to do". Then Rep. Barry Arrington, R-Arvada, tried this year to amend Make My Day through his HB 1138.

Make My Day, for readers newly arrived in our state, is the 1985 Colorado law that gives immunity to dwellers who kill or wound anyone who unlawfully enters the premises if the dweller reasonably believes the intruder will commit a crime and will use physical force, no matter how slight.

Only 16 House members voted against Arrington's bill and all 16 were Democrats. The bill was rewritten (I am informed) by the district attorneys to state it didn't matter HOW the victim got on the defendant's premises (knowingly or unknowingly).

In the Senate Judiciary, the district attorneys opposed HB 1138 and it died on a 5 to 2 vote. Thinking fast, Rep. Arrington had his bill added in the House to HB 1160 by Rep. Adkins, R-Douglas by a vote of 33 to 23. HB 1160 deals with criminal laws and the Senate sponsor is Sen. Dottie Wham, R-Denver, chair of the Senate Judiciary Committee that killed HB 1138.

Chances are good that Senate Judiciary will remove HB 1138 from HB 1160 before HB 1160 gets to the Senate floor, but the debate over Make My Day will then occur and no matter what happens in the Senate, the decision on the Make My Day addition will be made in a House-Senate conference committee to which Adkins and Arrington will likely be appointed.

How many readers of this column have ever found themselves in a place they didn't belong? Had no right to be? And you got there unknowingly? If the Make My Day amendment passes, and you make that wrong turn at the premises, it could be your last breath on earth.

Does the Make My Day law need to be amended? Absolutely! But pul-leaz! Have some group other than district attorneys draft it. They came up with MUCH of the present Make My Day language (to avoid even worse language by the original sponsors) and they persuaded Gov. Richard Lamm to sign it.

In 1987, the Rocky Mountain News urged repeal of Make My Day, (following two murders by David Guenther of his wife and a neighbor and the wounding of three others) since "to put it generously, Make My Day was foggily drafted. Why lawmakers opted for change is a mystery" wrote the News. "Certainly there was no notorious instance of prosecutorial injustice spurring them on."

Here is an example of "foggily drafted" that I wrote about at the time. One portion of Make My Day reads: "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."

Immunity? Imagine this scene. The homeowner is home. He has a gun but has never fired it. Intruder unlawfully enters the home, still holding the screwdriver used to prod the door lock, with intent to commit burglary. He leaves the door open.

Homeowner reasonably believes himself in physical danger. He closes his eyes and fires his gun. His aim is not very good. The bullet misses the intruder and hits his neighbor's child sitting on the steps of the home across the street. The child dies.

Under May My Day, the parents of the dead child cannot obtain criminal charges against their neighbor for his negligent or willful and wanton actions, and they also cannot sue him for the death of their child. The legislature decided a negligent homeowner's wallet has greater sanctity than an innocent child's life.

Make My Day hasn't been amended since its original adoption in 1985. Dr. William Wilbanks, a Florida International University criminologist and author of the 1990 book "The Make My Day Law" did a study of the 23 Colorado cases from 1985 to 1987 in which the law was used. Wilbanks' book is cited often in the 1995 case, People Vs. McNeese, which case was the basis of Rep. Arrington's amendment to allow "unknowing" entry to trigger Make My Day.

Wilbanks cites the four facts needed in 1990 for the defendant to use the law and creates some unintended consequences from the statute's language:

1. "The defendant was an occupant of the dwelling".

"Suppose...several people were at a party and someone made an uninvited entry (party crasher) and threatened assault and 'force no matter how slight'. It would appear that any one of those present...could use deadly force against the intruder even though they were NOT protecting their house...(and) even though the actual homeowner (the host) might have refrained from using force."

2. "The other party made an uninvited entry into the dwelling."

That was changed when Justice Erickson, supported by a majority of the court determined in People vs. McNeese that the key word is "unlawful" and not "uninvited". "The statute" writes Erickson "does not require that the entry be both unlawful and uninvited, or that the entry be either unlawful or uninvited. The defendant must establish an unlawful entry..."

Justice Erickson's 5 to 2 decision relies heavily on the 1987 Guenther decision which held the Make My Day law constitutional, and on the 1985 legislative debates over the bill. "The plain language of the statute, as we said in Guenther requires proof of an actual unlawful entry and not merely a reasonable belief that the entry was unlawful...The legislative history supports the conclusion that an unlawful entry means a knowing, criminal entry into a dwelling."

Erickson continues:

"Without a culpable mental state for the unlawful entry requirement, an occupant of a dwelling would be immune from criminal prosecution for the homicide of any unanticipated or unexpected 'intruder'. The statute was not intended to encourage arbitrary, casual killings...(or) justify use of physical force against persons who enter a dwelling accidentally or in good faith."

3. "The defendant had a reasonable belief that such other person committing or intends to commit a crime against a person or property."

In the 23 cases reviewed by Wilbanks, this was not a problem for the defendant, if he can credibly testify as to this "reasonable belief". It is extremely difficult for the 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."

This was not a problem in the 23 cases. In most cases, the victim did have some sort of weapon, such as a golf club, knife, gun, fists combined with "rage".

Wilbanks points out that under Make My Day, the defendant's response doesn't have to be reasonable. In a number of cases, after the victim is no longer able to "participate", the defendant continued to inflict damage. In one case in which the court held the defendant immune from prosecution, the defendant stabbed the victim 32 times and even kept stabbing him after the victim had fallen to the floor.

"...once the conditions are met, the intruder (no stranger...a love rival) is eligible to be killed regardless of whether deadly force is reasonable and necessary. The homeowner could start by shooting his toes and work his way up and torture or even execute the intruder."

Wilbanks also points out there is nothing in "Make My Day" that precludes the homeowner from shooting the intruder in the back as he attempts to exit, or shooting outside the house if the intruder was at one point IN the house.

The original theme used to sell "Make My Day" was to deal with burglaries and entry by strangers. In the 23 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.

No burglaries, and except for several of the police cases, NONE involved strangers.

There IS a place for Rep. Arrington's "knowingly or unknowingly" amendment. He just chose the wrong statute. In 1994, the Colorado Court of Appeals ruled in favor of the defendant in the case of People vs. Bath, (the same Bath who wanted to blow the dirtbags away) and who was charged with sexual exploitation of children in violation of CRS 18-6-403 and conspiracy in violation of CRS 18-2-201.

The "child" in the Bath sex video was 17 years, 9 months old. The court pointed out that CRS 18-6-403 requires "A person commits sexual exploitation of a child (defined as under 18) if, for any purpose he KNOWINGLY:" The appellate court replaced "knowingly" with "lack of reasonable belief".

"We conclude" wrote the court "that 18-3-406 (1)...providing for the affirmative defense of reasonable belief, manifests a clear legislative intent that the culpable mental state of 'knowingly' does not apply to the age of the victim." The statute 18-3-406 (1) and (2) distinguishes between children over and under 15. If under, it's strict liability. If 15 or over, it's "reasonable belief".

Because the boy was close to 18, and "appeared to be older (than 18)" the court held "conviction of defendant cannot be sustained based solely upon failure (to make inquiry as to victim's age)."

Changing the crime of sexual exploitation to "knowingly or unknowingly" in regard to age of the victim would provide a strict liability statute and (unlike HB 1138) would ACTUALLY do some good.

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