BullpupBen
Member
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.
Make my day law
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Happiness Is A Warm Gun
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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".
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
Member
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...
BADUNAME37
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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!
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!
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
Member
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
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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.
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
Member
andcam said:
Uhh, no.
divemedic
Member
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
Member
...Uhh, Oh yeah. Easy. Seen the demonstration...
Treo
member
Maybe not literally under one second but before you can draw for sure
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.
My points are that the ADA (at least) is fair, and to keep your wits about you even on your doorstep.
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
Member
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.
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
Moderator Emeritus
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.
Of course. The laws cited above are in fact Colorado statutes.
Good recommendation.
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.
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
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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.
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
Member
Penetration, however slight...
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.
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
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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.
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.
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....
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
Good point.
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
Member
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.
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.
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