Make my day law


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zammyman
January 3, 2009, 11:59 PM
New information have come to light about the shooting death of a 22-year-old Colorado Springs man who may have been mistaken for an intruder.
It now appears the victim, Sean Kennedy, had broken a window and was trying to get inside a back door when he was shot and killed by the homeowner Sunday night.
Kennedy had been drinking and his father has said his son probably thought the house was his own, which was only a block away.
The D.A's office is reviewing whether the homeowner who shot Kennedy is protected under the "Make My Day" law.

(http://www.krdo.com/Global/story.asp?S=9604233)

So apparently if you go into the wrong house because you're drunk, you're not an intruder. And if you're drunk and get shot by the homeowner, the D.A. can "review" if the homeowner is protected under the make my day law.




Don't misunderstand what I am saying, it's a tragic event. Just seems like there's no accountability for people's mistakes anymore.. like getting drunk and breaking into a house. :banghead:

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usmarine0352_2005
January 4, 2009, 12:12 AM
.
Being drunk isn't a a legal defense for any other crime such as driving, rape or murder, so why should it be for home invasion?


.

zammyman
January 4, 2009, 12:33 AM
my thought exactly

Cuda
January 4, 2009, 12:40 AM
The DA in Colorado Springs is a jerk.

I feel sorry for the kid and my prayers go out to the family. But one qestion I would have asked the kid is why would you break a window in your own house to get in? Wouldn't knocking on the door been a better idea? If you were trying to avoid your parents because you were drinking wouldn't the noise of a window breaking wake them anyway?

But to reiterate The CS DA is a jerk. This from personal experience,

C

7.62X25mm
January 4, 2009, 12:47 AM
So now we need to screen intruders, check their ID and give them a field sobriety test? Then shoot them?

Steve in PA
January 4, 2009, 01:15 AM
The person shot without knowing who or what was at the door.

If you are going to automatically assume that it is someone "trying too break in".............then you should equally assume that it could be someone looking for help.......someone trying to warn you your house is on fire, etc.

No where in any of the articles that have surfaced to you see the homeower demaning to know who was at the door........they just shot.

Reminds me of the story I read years ago of the woman who shot through her closed bedroom door because she heard someone trying the knob.

Turns out it was her young daughter who couldn't sleep or had a nightmare or something and came looking for mommy.

Same principle.

Treo
January 4, 2009, 01:41 AM
I don't know that the DA in the Springs is a jerk, but if I understand Co. make my day correctly they have to be in your home and presenting a credible (however slight) threat. trying to break down the door would be iffy.

The very first case tried under the law was 5 kids breaking into a home to beat up the homeowner (or his son don't remember which) they beat him to a pulp over a perceived insult and told him they were going to get a gun and come back. The beatee made it to the gun cabinette before the beators made it out of the drive way. The beatee fired one shot, hitting the driver of the beators in the back.

He was aquitted.

Co Springs is a pretty gun friendly town

andcam
January 4, 2009, 02:10 AM
I think treo is right. If I remember right, an intruder has to present a creditable/perceived threat. Say, if the intruder were in the house. Also, the average man can cover 21 feet in under a second.

I guess it's all about how the homeowner tells the story, seeing that the "intruder" isn't around to say anything. I think that just because the DA is investigating doesn't mean that he will bring charges. Regardless, I hope the homeowner has a good lawyer.

Treo
January 4, 2009, 02:50 AM
My understanding is if the guy walks into your house & just stops, he's standing in your kitchen drinking you best T.J. Swan but not making and move toward you, you can't just shoot him. But, as soon as he picks up that bottle to pour another glass you can say he was reaching for a weapon and blow him full of so many holes the Easy Nights runs out like a sieve.

A credible (however slight) threat

andcam
January 4, 2009, 02:56 AM
That's what I meant. typed before thinking syndrome here... :D

expvideo
January 4, 2009, 03:19 AM
I'll protect my property. This ruling is rediculous.

The person shot without knowing who or what was at the door.

If you are going to automatically assume that it is someone "trying too break in".............then you should equally assume that it could be someone looking for help.......someone trying to warn you your house is on fire, etc.

The guy broke a window and was trying to unlock the door from the inside. When I need help from people, I knock.

Treo
January 4, 2009, 03:23 AM
What "ruling" nothings been ruled on yet

You can protect your property all you want just be advised if you step outside the law to do so, there will be consequenses

chris in va
January 4, 2009, 03:33 AM
So now we need to screen intruders, check their ID and give them a field sobriety test? Then shoot them?


Pretty much, yes. At least identify the threat. We're too much in a rush to shoot first.

Bubba613
January 4, 2009, 05:56 AM
Pretty much, yes. At least identify the threat. We're too much in a rush to shoot first.
Guy attempting to break into my house at night is all the ID I need to determine if he is a threat or not.

Let's say the guy was not drunk and had duct tape and a screw driver in his back pocket. Does that change the outcome? If so, the homeowner was justified in the actual case as well.

divemedic
January 4, 2009, 07:43 AM
This is what the law says:


18-1-704.5
(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 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.

Reasonable belief is the key here. This will probably at least go to the grand jury, maybe even to trial.

subknave
January 4, 2009, 09:54 AM
I think a lot would depend on what the homeowner did. Did he ask who it was, tell them he had a gun, do anything but shoot? You can't really rely on newspaper accounts for the facts as they have their own spin and often leave out what you might consider important details.
Either way I think the father was just trying to come up with an excuse when he said he mistook the house for his own. I think it is more likely he had a few drinks and decided to break into this house. Did it say what his BAC was?

Jaybird78
January 4, 2009, 09:57 AM
"Officer, I feared for my life and the lives of my family." and REPEAT

pith43
January 4, 2009, 10:20 AM
Reasonable belief is the key here. This will probably at least go to the grand jury, maybe even to trial.

Reasonable Belief is a given a wide latatude with the Make My Day law . In Colorado there have been very few convictions if the shooting occured during a breakin. The Make My Day law even extends outside the house onto your property... if you are threatened, you can respond with deadly force. i suspect this will go nowhere.

There was actually another bill in the legislature called the Make My Day Better law... it extended the rights to your car or place of business. I think it lost traction when we went "Blue", although Rep Cory Gardner (bill's sponser) is still trying to push it through. Colorado is still a pretty gun friendly State, I hope that doen't change.

Kleanbore
January 4, 2009, 01:04 PM
From divemedic:

This is what the law says:


18-1-704.5
(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 [I]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.

Reasonable belief is the key here. This will probably at least go to the grand jury, maybe even to trial.

(Emphasis added).

According to my lay reading, the key here is whether or not an unlawful entry has in fact been made.

That's not clear from the report.

It now appears the victim, Sean Kennedy, had broken a window and was trying to get inside a back door when he was shot and killed by the homeowner Sunday night.

Castle laws vary from state to state. In some cases entry must be forceful in addition to unlawful to justify the use of deadly force. In others, it is permissible to use deadly force to prevent or terminate unlawful entry.

It is essential to know the law in your state.

akodo
January 4, 2009, 01:15 PM
The person shot without knowing who or what was at the door.

B.S.

The shooter knew exactly who was being shot 'unknown unauthorized threat!'

the shooter knew it wasn't his son coming in late, uncle pete playing a prank, or a uniformed fireman coming in through the window to do a rescue.


Should you not shoot the man with the ski-mask and bloody knife who just came through your door because you can't identify the person because of the mask? Maybe it is crazy uncle steve playing a prank!

Identify the target does NOT mean 'know the guy's name'

punkndisorderly
January 4, 2009, 01:19 PM
However drunk/stoned/high this cat was, I seriously doubt that he was just at the wrong house. Especially since he broke in.

Laws like these really make me wonder what in the heck lawmakers are thinking. When someone is in a self defense situation, they make the best decision they can under the circumstances they are in using the little information they have. Any rational person would deem someone breaking in your window and climbing through as a threat. Second guessing and monday morning quarterbacking based on things that homeowner couldn't know is just plain wrong.

If someone kicks in my door in the middle of the night, I should be protected by the law, not victimized further by the law. If said door kicker turns out to be a girl scout just checking to make sure I got my yearly order of cookies, there is no way I could have known that at the time.

Kleanbore
January 4, 2009, 01:25 PM
The shooter knew exactly who was being shot 'unknown unauthorized threat!'


??? That doesn't make sense....

Should you not shoot the man with the ski-mask and bloody knife who just came through your door...

But how about the man who has not come through your door, as in this case? That's likely to be what the outcome will hinge on.

Where I live I would have been justified. The Colorado law seems to require a successful unlawful entry into the dwelling before deadly force is justified.

trlcavscout
January 4, 2009, 01:44 PM
If this guy can get off on the "make my day law" then the guy in CS should be ok.
http://www.barkingdogs.net/newscoault.shtml

He shot his neighbor through the front door with a shotgun.

Now when I lived in Las Vegas it was different, my CCW class told me that not only did they "have" to be in the house, but I would have to prove that I had no other exit before I could have shot? Luckily I never had to test it.

Loomis
January 4, 2009, 02:10 PM
The drunk probably tried his key, it didn't work, tried the doorbell, no one answered, then got mad and started wandering around looking for a door that worked, then finally decided the he11 with it, i'm going in a window.

I could totally see that happening. Drunks do dumb things. We aren't talking about your average drunk though. This would be a seasoned alcoholic that wakes up without a clue where he is or how he got there.

As a homeowner, I myself would prefer to give an intruder the option to flee or back off before I shoot...unless he's actually completely inside then it's bullets first, other options second. But I don't see how the law should be requiring me to do that.

benminer
January 4, 2009, 06:14 PM
The D.A. is doing his/her job. This was a homicide and in order to qualify as a justifiable homicide there needs to be a defense, which it seems pretty clear that there is. Nevertheless the DA is still required / obligated to confirm that.

I do not read the article to mean that the DA is leaning towards pressing any sort of charges; merely that it's being investigated as it should be.

BullpupBen
January 4, 2009, 06:22 PM
I've never heard of someone being drunk so stupid that they broke a window in their own house.. that defense is straight from the bulls rear.

Happiness Is A Warm Gun
January 4, 2009, 06:53 PM
Just my guess but I think the case hinges on the wording of the law.

The Home owner didn't let the perp into the house. I know I know the homeowner shouldn't have to. Well take it up with the CO legislature. They wrote the law and as the law stands it implies the law covers a homeowner once someone has entered the home. The perp hadn't entered the home so the homeowner may not be covered.

The good news:
In addition to this statute there is the std self defense statute. The new law doesn't replace the older "general self defense" statute which remains on the books.

So EVEN IF this statute is denied as a defense the Home Owner could present an affirmative defense as "general self defense".

twoclones
January 4, 2009, 07:01 PM
I've never heard of someone being drunk so stupid that they broke a window in their own house..

It happens. My step-father busted in our back door when he couldn't get the key in the door lock. He was pretty drunk but still managed
to drive home AND be that stupid.

I'd also like to say that in my opinion, someone who breaks the glass and reaches in to unlock the door has already *broken in*, in spite of not having crossed the threashold...

Friendly, Don't Fire!
January 4, 2009, 07:10 PM
How does the father know that his son was mistaken the house he broke into for his own house?

I would say, for the father to state that makes the father look gullible.

Too bad someone got killed. Too bad the kid picked the wrong house to break a window on a door. I guess he should have broken into his parent's house instead.:)

I say if the kid's arm was inside the door, trying for the doorknob, that is INSIDE THE DWELLING. Or, do we need to start to determine how much of a percentage of the intruder's body has to be inside in order to shoot? Does the body have to be 100% inside the house? How about if he is just inside, the guy shoots, and the fellow falls outside and now only his foot is inside the house.

This is ridiculous, as others have stated that the VICTIM has to be the one to fight for their right to live peacefully inside their own home!

nrthwoods
January 4, 2009, 07:53 PM
It's a shame, I feel bad for the poor kid but being drunk or not he still made a conscious decision to do this. I guess I feel for him, cause I might have a buddy or two I could see this happening to. I suppose if it were my home, I'd perceive this as them breaking in and being caught in the act. In such a poor situation, I suppose it would strangely be ideal that you didn't find him wandering about already inside your home before he 'realizes he wasn't in the right house'. If this man was drunk enough to make such an allegation he was in the wrong place, there is no telling what else he may or may not have been capable of. Who knows, he may have thought the actual homeowner was an intruder, the story seems kind of unlikely but there is no way anyone will ever understand what motivated him to do this now. If it were my home, I probably would have shouted the command for him to lay down on his face with the barrel trained, one in the chamber and my finger off the trigger, and had a family member phone the fuzz. You could guage his reaction, and if he became aggressive I would do what in the situation I deemed neccisary to defend myself and my loved ones. I mean, how would you feel if this happened to you? I don't know if the occupant was asleep, but what a way to wake up that would be. It's a scary situation to find yourself in, and perhaps if he would have handled the situation differantly this kid might still be alive but he did what he did in the heat of the moment and ultimately it was the intruder who had made a bad choice and had to pay the ultimate price for it. I hope the homeowner isn't convicted for this, though FWIW I think he could have gone about it differantly esp seeing as the person apparently was still trying to make his way inside. If he was still outside of the dwelling identifiying such a deterance to procede may have been more than enough to cause him to flee...

mljdeckard
January 4, 2009, 10:59 PM
Inspector, I think in this case, we kind of do. The law says someone who has entered the home, not someone who was TRYING to enter the home. I'm thinking that he should have at least waited until the guy had the door open and could be identified.

coloradokevin
January 4, 2009, 11:38 PM
I'm not at all concerned by the fact that the DA is reviewing this case. The DA does this in many cases, in many jurisdictions. As a LEO, I've been around long enough to see that the DA often reviews our actions in clear-cut critical incidents as well. It is just the way things work. From what I see, no charges have been filed yet... we'll have to wait and see.

okespe04
January 5, 2009, 12:33 AM
I was taught to ALWAYS identify your target. Any weapon I own that I plan to use for sd or hd I practice shooting with a bright led in the left and gun in the right supported by my left wrist. If you use a shotgun get a rail and a light. I feel sorry for the kid and if it was my house I would like to think that my bright led and a gun in his face would have made us both realize what was happening.

misANTHrope
January 5, 2009, 02:45 AM
Also, the average man can cover 21 feet in under a second.

Uhh, no.

divemedic
January 5, 2009, 06:21 AM
The law says someone who has entered the home, not someone who was TRYING to enter the home.

The law specifies someone who has made unlawful entry into the home. I feel that this particular condition has been satisfied. There is nothing in the statute that I could find that states he must be completely inside the home. Colorado statute 18-4-201:

(3) A person "enters unlawfully" or "remains unlawfully" in or upon premises when the person is not licensed, invited, or otherwise privileged to do so.

18-4-203:


(1) A person commits second degree burglary, if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property.

(2) Second degree burglary is a class 4 felony, but it is a class 3 felony if:

(a) It is a burglary of a dwelling

So are you arguing that a person who breaks your window, and reaches in to unlock your door has not committed burglary?

Clipper
January 5, 2009, 06:54 AM
Originally Posted by andcam
Also, the average man can cover 21 feet in under a second.

Uhh, no.

...Uhh, Oh yeah. Easy. Seen the demonstration...

Treo
January 5, 2009, 10:02 AM
Maybe not literally under one second but before you can draw for sure

TRGRHPY
January 5, 2009, 10:41 AM
We have a new DA...not sure if he is in office yet. The ADA he apointed taught my Laws of Evidence class...really nice guy, very intelligent, knowledgable and fair. He was the ADA a few years ago who did some high profile local cases, one of them being the abduction/rape/murder of a girl here in the Springs. The criminals had tried abducting a girl earlier that afternoon/evening who was jogging in the Garden of the Gods park. He showed us the evidence photos and documents to read...pure evil. The girl who was abducted was at the front doorstep of her apartment when they took her.
My points are that the ADA (at least) is fair, and to keep your wits about you even on your doorstep.

DaveBeal
January 5, 2009, 10:50 AM
The Make My Day law even extends outside the house onto your property...

Not true. Note the word "dwelling" in the statute as quoted in post #15. Dwelling is defined elsewhere as the normally-occupied parts of a home; it does not include the garage, porch or yard.

Kleanbore
January 5, 2009, 11:12 AM
So are you arguing that a person who breaks your window, and reaches in to unlock your door has not committed burglary?

Not at all.

I'm not sure whether the commission of burglary enters into the question of whether the homicide was justified.

I am stating that outcome may well depend on the determination of whether the person having done that has entered the house as defined in the law.

If the DA says "no" the shooter has a problem that will not be resolved until later steps in the criminal judicial process.

If the DA says "yes" it would appear that the case is closed.

It may depend on whether there is any evidence (prints, bloodstains, etc.) indicating that the victim had in fact "reached in" or had simply broken a window--but that's pure speculation.

Of course, should it be determined that the shooter had not fired in a manner justified by the castle law per se, the next question would likely be wether he had reason to believe that he was in imminent danger, etc.; that deadly force was necessary; and that he can convincingly support same. I don't think I would want to be in that situation.

Thirty five years ago a new next door neighbor of mine broke a window to get into his house on the evening of the day on which he ook possession of the house. The door lock would not work. Don't think for a moment that he could not have tried that on the wrong house--I once entered the wrong house after moving to a new neigborhood. And he was stone sober.

JR47
January 5, 2009, 11:26 AM
I would suggest that we stop trying to apply the laws where we reside to the situation. Read up on Colorado law, more than just whatever statute is chosen to apply. Laws don't stand alone, but are viewed in the continuum of the body.

Georgia would have allowed the shooting as soon as illegal entry was made by the breaking of the window. The idea of illegal entry includes any part of your body, as well as the entire body. If anything else was required, you couldn't defend yourself against a gunman breaking a window for a clean shot, until he actually fired. It would also call into question the charge of breaking and entering if the person simply broke a window, reached through, and stole your property without fully entering the premises.

This law, and those of self-defense, in Colorado, do not require that you verbally inquire as to who, or why, the subject has broken into your home. What if he didn't answer? It's a slippery slope here. Just how much information must a perpetrator provide?

By the way, it is usually quoted in a court of law that an average man can cover 21 feet in three seconds, not one. This was developed by testing to acknowledge the danger zone of a knife-wielding assailant in a court case. As it takes a trained person nearly two seconds to draw and fire, and some amount of time to recognize the threat, and act, the three seconds go by quickly.

TexasRifleman
January 5, 2009, 11:37 AM
By the way, it is usually quoted in a court of law that an average man can cover 21 feet in three seconds, not one. This was developed by testing to acknowledge the danger zone of a knife-wielding assailant in a court case. As it takes a trained person nearly two seconds to draw and fire, and some amount of time to recognize the threat, and act, the three seconds go by quickly.

It's called the Tueller Drill, and it's one and a half seconds.

http://www.theppsc.org/Staff_Views/Tueller/How.Close.htm

The original report came out in 1983 and newer thinking on this is that 21feet is still too close, and the actual "immediate threat" distance may be as far out as 30-35 feet.

Kleanbore
January 5, 2009, 12:02 PM
I would suggest that we stop trying to apply the laws where we reside to the situation.

Of course. The laws cited above are in fact Colorado statutes.

Read up on Colorado law, more than just whatever statute is chosen to apply. Laws don't stand alone, but are viewed in the continuum of the body.

Good recommendation.

Georgia would have allowed the shooting as soon as illegal entry was made by the breaking of the window.

True. The operative language is "prevent or terminate" illegal entry. In Texas, it is "or was attempting to enter unlawfully and with force". Where I live it's "or was attemping to enter unlawfully." Not so in Colorado, where it is "has entered." Will the entry of an arm alone suffice, if in fact an arm came in?. Well, that's why we have courts. I do not know if any case law exists. If not, it may after this.

This law, and those of self-defense, in Colorado, do not require that you verbally inquire as to who, or why, the subject has broken into your home. What if he didn't answer? It's a slippery slope here. Just how much information must a perpetrator provide?

The issue is really not a legal one, in my view, but how would you like to shoot a family member, friend, neighbor, etc.? If someone is breaking in you're probably pretty safe in assuming that it's a crook, but I would probably shout something before firing under most circumstances.

Bailey Guns
January 5, 2009, 12:20 PM
First, it's perfectly reasonable that the DA, whether anyone thinks he's a jerk or not, is reviewing this case. That's just prudent and it happens to be standard procedure no matter how righteous a shooting may at first appear to be.

Second, the "Make My Day" law has been widely interpreted by both DAs and juries in this state. There is certainly case law and precedent to support a homeowner using deadly force on an intruder both before they've entered and after they've left the premises. There was a case in Ault, CO (Eric Griffin, 11/2004) re: a man who suspected Griffin of shooting his dog armed himself with a 3' long 2x2 and began breaking in the front door of Griffin's home. Griffin confronted the man with a shotgun from inside his home and after a brief quarrel shot through the door killing the man before he made entry. DA refused to prosecute citing "Make My Day". A second case (Gary Lee Hill, 09/05/2004 in Colorado Springs) involved several suspects severely beating a homeowner over some sort of dispute involving alleged stolen property. The assailants left the home, got into a car and were actually driving down the street when the homeowner fired one round from a rifle into the car, killing one of the assailants. He was acquitted after trial by a jury of 1st Deg Murder after only 6 hours of deliberation. The jury said the law was not specific on where the intruder must be prior to the homeowner using deadly force. The DA who prosecuted the case all but said the jury was technically correct on that point.

I really like the "Make My Day" law inasmuch as it requires only a reasonable belief that 3 things have occurred: 1) an unlawful or uninvited entry into a dwelling, 2) a reasonable belief that the intruder has, will or is committing a crime, against PERSON OR PROPERTY, in addition to the uninvited entry, and 3) a reasonable belief that the intruder MIGHT use ANY degree of force, no matter how slight, against ANY occupant of the dwelling.

The law does not require any sort of forced entry, the law does not stipulate where the force must be used and the law certainly does not require (nor does any Colorado law) the threatened person give any sort of warning to their assailant as to what might happen should the assailant continue his/her illegal assault. Those things factored into the jury's decision to acquit the man in example 2 above.

Colorado case law also extends the boundaries of a dwelling to the entire building, including attached garages, etc. A "dwelling" under Colorado law does not necessarily have to be your own home. The definition basically defines "dwelling" as: "a building used, normally used or meant to be used by a person for habitation". There is also case law that provides for some temporary structures (tents, RVs, etc) be defined as a dwelling.

In my opinion the law is very good (not perfect...but pretty close) as written but, as this thread proves, there is also a lot of myth surrounding what is and is not covered by the law.

twoclones
January 5, 2009, 12:21 PM
The law says someone who has entered the home, not someone who was TRYING to enter the home.

If it were a sex crime, the law would say "Penetration, however slight, is sufficient to complete the crime." I'd hope the same would apply to entering my home.

Bailey Guns
January 5, 2009, 12:30 PM
Oh, yeah...

And keep in mind that even if the DA rules a shooting does not fall under the "Make My Day" law, that doesn't mean the shooter wasn't justified in using deadly force. It simply means the shooter will be held to a higher standard in his/her ultimate decision to use deadly force and will not have the luxury of immunity from civil liability or criminal prosecution that the "Make My Day" law offers.

Kleanbore
January 5, 2009, 01:44 PM
There is certainly case law and precedent to support a homeowner using deadly force on an intruder both before they've entered and after they've left the premises. There was a case in Ault, CO (Eric Griffin, 11/2004) re: a man who suspected Griffin of shooting his dog armed himself with a 3' long 2x2 and began breaking in the front door of Griffin's home. Griffin confronted the man with a shotgun from inside his home and after a brief quarrel shot through the door killing the man before he made entry. DA refused to prosecute citing "Make My Day".

Interesting, and that answers that, if the DA follows suit this time. I'm not sure whether the defense could successfully mount an argument on the basis of what a particular DA had decided not to do in the past, however.

Interesting that that case did not involve someone who had entered....


A second case (Gary Lee Hill, 09/05/2004 in Colorado Springs) involved several suspects severely beating a homeowner over some sort of dispute involving alleged stolen property. The assailants left the home, got into a car and were actually driving down the street when the homeowner fired one round from a rifle into the car, killing one of the assailants. He was acquitted after trial by a jury of 1st Deg Murder after only 6 hours of deliberation. The jury said the law was not specific on where the intruder must be prior to the homeowner using deadly force. The DA who prosecuted the case all but said the jury was technically correct on that point.

I can readily see acquittal of charges of first degree murder, but if the homicide was actually found to be justified when the victim was in fact driving away, I think that case probably represents an outlier in the United States... Also see Garner v. Tennessee.....

A question not relevant to the current incident is why the state ever chose to pursue a conviction for first degree murder in that case.

http://answers.yahoo.com/question/index?qid=20070817192825AAdnJoq

And keep in mind that even if the DA rules a shooting does not fall under the "Make My Day" law, that doesn't mean the shooter wasn't justified in using deadly force. It simply means the shooter will be held to a higher standard in his/her ultimate decision to use deadly force and will not have the luxury of immunity from civil liability or criminal prosecution that the "Make My Day" law offers.

Good point.

TRGRHPY
January 5, 2009, 08:22 PM
Quote:
A second case (Gary Lee Hill, 09/05/2004 in Colorado Springs) involved several suspects severely beating a homeowner over some sort of dispute involving alleged stolen property. The assailants left the home, got into a car and were actually driving down the street when the homeowner fired one round from a rifle into the car, killing one of the assailants. He was acquitted after trial by a jury of 1st Deg Murder after only 6 hours of deliberation. The jury said the law was not specific on where the intruder must be prior to the homeowner using deadly force. The DA who prosecuted the case all but said the jury was technically correct on that point.

I can readily see acquittal of charges of first degree murder, but if the homicide was actually found to be justified when the victim was in fact driving away, I think that case probably represents an outlier in the United States... Also see Garner v. Tennessee.....

There are a couple of things to point out regarding that case. The owner had been in a fight with one of the men and had beaten him (over the theft of the owners GF purse IIRC). The one man stated that he was going to get others and come back and kill him. That was the justification for shooting while the thief was driving away.

--HOWEVER--

I have spoken to a couple of ADA's in/around here who didnt agree with the application of the "make my day" law in this instance. Even one of the men (or THE man...can't remember right now) who helped draft it was quoted as saying that this case wasn't what they created the law for.

divemedic
January 6, 2009, 10:05 AM
This is going to center around what constitutes entry. Is an arm enough? Does a certain percentage of a person have to be inside before entry? That is what I meant by the burglary comment.

If an arm is not enough to constitute entry, then it is also not enough to constitute burglary. That means if I break a window, reach in and steal your television, I am not guilty of burglary (a felony) but instead, I have committed larceny (a misdemeanor) or any number of lesser crimes like criminal mischief, trespassing, or vandalism.

I feel (and this is just my opinion) that sticking your arm into a dwelling constitutes entry, but that is why my original post felt that the case would at least go to a grand jury or perhaps even to trial.

Kleanbore
January 6, 2009, 10:19 AM
This is going to center around what constitutes entry. Is an arm enough?

That, and whether there is any evidence that an arm came in, would seem to be the issues.

If an arm is not enough to constitute entry, then it is also not enough to constitute burglary.

So it would seem.

I feel (and this is just my opinion) that sticking your arm into a dwelling constitutes entry,...

I cannot disagree, but it's not up to me.

...but that is why my original post felt that the case would at least go to a grand jury or perhaps even to trial.

Unless the DA agrees that entry was made.

scottgun
January 6, 2009, 11:15 AM
An intruder's arm inside your house is an intruder in your house. It is not reasonable for a homeowner to wait for an intruder to be successful and have fully gained entry to the household. We have a right to be secure in our dwelling and have no responsibility to let the intruder gain the upper hand. The intruders continued efforts would without a doubt result in the intruder gaining entry, the homeowner has the right to defend himself from a break-in.

Kleanbore
January 6, 2009, 11:18 AM
An intruder's arm inside your house is an intruder in your house.

Legal opinion, or just a personal (and I might add, reasonable) lay opinion?

scottgun
January 6, 2009, 11:27 AM
It is a reasonable lay-person's opinion. I have been following this incident closely, as it is a somewhat local story. In reading another discussion forums, several police officer types have stated that if any part of the body enters the house, then that is a break in. It doesn't have to completely and fully inside for it to be considered entry.

Who should be given the benefit of the doubt in this incident? The drunk guy breaking into the wrong house, or the homeowner who is defending himself from an imminent threat?

Steve in PA
January 6, 2009, 11:55 AM
The guy didn't "break into the house", he was banging on the door.

If the guy or part of him made it into the house, that would change things.

Just because someone is banging on your door doesn't mean you open fire.

There is a big difference between shooting to defend yourself and shooting because you are "scared".

divemedic
January 6, 2009, 11:58 AM
Steve, I believe you are mixing two separate incidents. From the article (http://www.krdo.com/Global/story.asp?S=9604233):

It now appears the victim, Sean Kennedy, had broken a window and was trying to get inside a back door when he was shot and killed by the homeowner Sunday night.

CoRoMo
January 6, 2009, 01:05 PM
This is going to center around what constitutes entry.

Not sure I'd agree with that. This case, if it becomes one at least, isn't about burglary, breaking and entering, trespassing, or unlawful entry.
I know, the Make My Day Law speaks to an intruder having made entry, but this, if it becomes a 'case', will be a case to determine the justification of the homicide, and I can't imagine the DA will squabble in court over the semantics of 'entry'. Rather, the DA will be more concerned with proof of intent to commit bodily harm or any perceived threat. The shooter, again if this becomes a case, would have to detail the perception of that threat.

But I'm no lawyer, I'm just a Coloradoan.


CoRoMo

Mello
January 6, 2009, 01:08 PM
From reading the article, there seems to be insufficient information to determine whether the deceased actually crossed the plane of the boundaries of the dwelling. If Kennedy had not entered the dwelling then that required element of the statue would be lacking and the shooter could not be protected.

It merely says that: "It now appears the victim, Sean Kennedy, had broken a window and was trying to get inside a back door when he was shot and killed by the homeowner Sunday night."

It is possible that he used a thrown object to break the window (such as a rock or brick). It does not say. In that case it could be argued that he did not enter the dwelling.

The results of the crime scene investigation should determine this important fact.

18-1-704.5
(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 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.

divemedic
January 6, 2009, 01:20 PM
That is why I feel the case will center on whether or not the decedent entered the dwelling. Once that is established, it will be relatively easy to show that the homeowner reasonably believed that a violent home invasion was taking place.

Bailey Guns
January 6, 2009, 03:30 PM
Just FYI for those considering the argument of "does a part of the body extended inside the residence constitute entry?"

I've successfully submitted numerous cases to the DA of both Jefferson and Arapahoe counties involving:

Smash and grab burglaries - frequently involves someone smashing a window at a (in my case liquor) store and stealing display merchandise located near enough to the window to be easily reached without entering the store.

Burglary is basically defined (Reader's Digest version) as "unlawfully entering or remaining on premises with the intent to commit a crime therein."

Same goes for 1st Deg Criminal Trespass (for example, unlawful entry into a vehicle to steal something). I've successfully prosecuted (well, presented to the DA for prosecution) cases for 1st Deg Trespass after the bad guy reached into the open bed of a pickup truck and stole a toolbox. And keep in mind, the theft of the item(s) is a separate charge from the burglary or trespass charge.

Another thing to keep in mind about Colorado's Make My Day law. It allows for immunity from criminal prosecution and civil liability only under state laws. It's conceivable a person could still be charged and convicted criminally or sued civilly under federal law even though the state declined to prosecute. I'm actually surprised given some of the Make My Day shootings that have occurred since the law went into effect someone hasn't tried a 1963(?) type federal case for civil rights violations.

To TRGRHPY:

You're absolutely right about the uproar this case caused. But I wasn't attempting to comment on that...just the degree of latitude DAs and juries will give people in these types of cases.

CoRoMo
January 6, 2009, 06:21 PM
from the article
The D.A's office is reviewing whether the homeowner who shot Kennedy is protected under the "Make My Day" law.

Hopefully the D.A's office finds that the homeowner is in fact protected under the Make My Day law, but I think that specifically using Colorado's Make My Day law to justify this shooting is the wrong tack because of the unlawful entry definition we're debating here.

Colorado has plenty of 'Use of Physical Force in Defense' law that would apply here. Assuming that the shooter
...reasonably believes a lesser degree of force is inadequate and
has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury...
...there shouldn't be a question to the justification of this shooting.

Colorado also has statutes regarding the use of deadly force in defense of premises, but its specifics couldn't be applied without a more detailed account from the shooter.

Bailey Guns
January 6, 2009, 06:57 PM
The big deal is the immunity the shooter gets if found to have acted reasonably under the "Make My Day" law.

Kleanbore
January 6, 2009, 06:59 PM
Assuming that the shooter
...reasonably believes a lesser degree of force is inadequate and
has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury...
...there shouldn't be a question to the justification of this shooting.

One other little detail: under those assumptions, his testimony and the evidence must convince others that, based on what the shooter knew at the time, he did believe, etc, and that based on that knowledge, his belief was in fact reasonable.

But: one principle reason for this and other castle laws is, I think, to establish that the fact of an illegal entry is in itself grounds for that reasonable belief.

By the way, the name commonly attributed to that law is not to everyone's liking.

It's conceivable a person could still be charged and convicted criminally or sued civilly under federal law even though the state declined to prosecute. I'm actually surprised given some of the Make My Day shootings that have occurred since the law went into effect someone hasn't tried a 1963(?) type federal case for civil rights violations.

It has been suggested in another thread that new case law may emerge from castle law situations. I think it's equally likely that the legislation may be amended for the purposes of clarification as unintended conseqences occur.

Regarding federal consequences, I'd be very interested in having someone discuss the possibilities. Surely a civilian cannot be prosecuted under federal law for infringing on a person's civil rights under the color of the law, but perhaps there are possible Fourth Amendment or other considerations...

scottgun
January 28, 2009, 10:08 AM
The Grand Jury decided not to charge the homeowner. And his arm was inside the house, which constitutes breaking into the house.

http://www.denverpost.com/news/ci_11567915

Kleanbore
January 28, 2009, 02:29 PM
Good ending to a tragic story.

However, it looks like the DA made the decision to not take the case to a grand jury in the first place. Is the article misleading in that regard?

mbt2001
January 28, 2009, 02:55 PM
The person shot without knowing who or what was at the door.

If you are going to automatically assume that it is someone "trying too break in".............then you should equally assume that it could be someone looking for help.......someone trying to warn you your house is on fire, etc.

No where in any of the articles that have surfaced to you see the homeowner demanding to know who was at the door........they just shot.

Reminds me of the story I read years ago of the woman who shot through her closed bedroom door because she heard someone trying the knob.

Turns out it was her young daughter who couldn't sleep or had a nightmare or something and came looking for mommy.

Same principle.

There is a difference between firing at the unknown and firing at a threat though his motives and identity are unknown.

cassandrasdaddy
January 28, 2009, 03:05 PM
I've never heard of someone being drunk so stupid that they broke a window in their own house.


need to either get out more or a few more years under your belt. drunks do the strangest things and sometimes nothin bad happens

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