KOPEL: AND SLOPPY LANGUAGE NEEDS TO BE REPLACED
'Make My Business Day' law needs more work
The “Make My Day” law in Colorado is now a quarter of a century old. Its language at CRS 18-1-704.5 has never been amended. There are two issues that need to be considered. One is an attempt tried in the past and again this year to include businesses, along with, presently, occupancy of dwellings. The offered bill would include businesses where owners or employees could lawfully wound or kill someone reasonably suspected of planning physical harm to a business occupant. The second issue is to replace present sloppy language in the law.
The second issue cannot be considered under House Bill 1094. The language offered by Rep. Cory Gardner, R-Yuma, and Sen. Ted Harvey, R-Highlands Ranch, regarding “use of deadly physical force against a person who makes an illegal entry into a place of business” is too tight. Under that title the sponsors are also attempting but cannot actually eliminate the word “homes” and replace with “dwellings.”
A title that would work could refer to replacing conflicting language and adding “immunity for use of deadly force against an unlawful entry into a place of business.” The word “uninvited” entry in the statute should be replaced with “unlawful” entry, especially if business site is added, since the public is “invited” into businesses.
Both of those single word suggested changes in wording came from criminologist Dr. William Wilbanks, then of Florida International University. In1990, Wilbanks reviewed 23 “Make My Day” cases in preparing his book. He suggests “unlawful” as including “uninvited” and “forcible” and makes more sense when referring to entry into a business. And “home” infers the occupant’s home, whereas it may just be a visitor to a dwelling of another. The higher appeal courts use the term “unlawful” rather than “uninvited” and the statute should be similar.
The present law provides immunity from criminal prosecution as well as civil liability. Imagine an occupant holding a gun, never having fired a gun before. Shaking, he or she fires. The bullet misses the burglar and kills a young girl sitting on her front steps across the road. I don’t think that has happened yet, but under present law the occupant is immune from liability for injuries or death resulting from the use of such force. Should not the immunity go no further than against the person committing or planning to commit a crime?
You can use Make My Day when (1) the defendant is an occupant of a dwelling, (2) the other person is unlawfully there, and (3) defendant has a reasonable belief that such other person has committed a crime in the dwelling or is, or intends, to commit a crime against person or property in addition to the unlawful entry, no matter how slight the possible physical threat is.
There is no period of time or limit on what the occupant can do. The criminal may have been rendered unable to move or may even be unconscious. That does not matter under the present law. Wilbanks points out defendant’s response does not have to be a reasonable use of force. In a number of cases, after the intruder can no longer “participate” the defendant continued to inflict damage. Wilbanks writes of 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.”
“The occupant could start by shooting intruder’s toes and work his way up and torture or even execute the intruder. The law does not indicate the threat has to be continuing.” The law should be changed to require immunity only when the threat is believed to be continuing.
The law had a checkered history beginning with House Judiciary Committee, which passed the bill 6 to 5. It was bipartisan in favor and against. So was the questioning on the floor of the House and Senate. Gov. Dick Lamm indicated he would veto the bill. The House said, “let’s go to conference.” The conference committee struck the language and offered what has been law the past 25 years.
The new version was written by a district attorney organization lobbyist who later made public his opposition to the draft. That was Ray Slaughter who, in the Rocky Mountain News on Dec. 10, 1990 stated, “he’s changed his mind about the law.” He said, “I think one has to be questioned whether we all did the right thing years ago. It ain’t worth it if it let real murderers set up murder and get away with it.”
The term “any occupant of a dwelling using physical force” can include a guest in the dwelling. The increase to include business owners and employees should not stop with “owner, manager, or employee.” What about independent contractors, as one example. A guest in a restaurant is someone who should be covered as well be able to claim immunity. But under the bill immunity extends only to the owner, manager, or employee.
Jerry Kopel served 22 years in the Colorado House and voted against Make My Day as not needed because of our self-defense statute.