Home Defense Shooting

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Not sure if many of you are following this story, but this could lead to some interesting interpretations of the "Make My Day Law" in Colorado.

http://www.gazette.com/articles/kennedy_45573___article.html/home_police.html

Regardless of if the homeowner was within his right, there will be some negative publicity from the anti-gun movement.

Just as a reminder:

Colorado's Homeowners Protection Act The text of Colorado's Homeowners Protection Act (Colorado Revised Statute number 18-1-704.5 - Use of Deadly Physical Force Against An Intruder), otherwise known as the "Make My Day" Law:
(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 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.

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In my own opinion, it look to me like a few gun grabbers are having a fit that someone actually had the *intestinal fortitude* to legitimately defend his home under Colorado Law.

Granted, the situation IS tragic.
On the other hand..... I have a wife and three children to protect. I don't blame those home owners for defending themselves within their own home. (Attempted break-in = I need to defend my family and home.... NOT stop and interview of the intruder of my home as to his/her intentions.)

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Tragic? Yup. But hey, stuff happens.
Drunk guy doing a B&E thru a back window/door? The last thing I'm going to do is ask if he has the right house. Being he was drunk enough to start breaking into the wrong house, he might have been drunk enough to mistake the homeowners as squatters and started pounding on them.
From preliminary reports, they made the 911 call to bring the authorities, which is good protocol for legal reasons.
Unless someone has any evidence to the contrary, I'd say this is a clean shoot.

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I agree.
No time for "Who are you and what are your intentions?"
Clean shoot.

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The placement of the "AND" clauses in the Colorado legislation is critical here. There are effectively three criteria which must be present in order for it to be a "good" shoot:

1. "when that other person has made an unlawful entry into the dwelling"
and
2. "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
3. "when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant"

The article is less-than-objectively presented -- this could have easily been written as a homeowner's defense of self and property but the paper leads with "homicide" and drunken innocence. I don't blame the homeowners from keeping quiet; they're the ones being put under the spotlight when it was the kid who busted into the wrong house, while killed tragically, should be focused on as the criminal.

I hate to say it, but none of us were there and it's very likely that all three criteria were in place to justify the shooting. What's disturbing is it creates a "victim" out of the man breaking into someone else's home and it casts an uncertain eye on the homeowner when the situation should be 180 degrees different. It was the homeowner who should be praised for NOT retreating and making victims out of himself and his family and we should be looking at this situation as the unfortunate yet tragic result of getting so blind drunk that you have no idea where you are or whose house you're breaking into.

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Kennedy never got inside, police said.

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Not a lot of details in the article, but this leads me to believe it was not a clean shoot. If the guy never made entry I don't think we even have to look at the other parts of the law... it's pretty explicit with "unlawful entry".

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Until we have more information... this one could fall under the list of cases where someone breaking in doesn't need to lie cold and dead on the linoleum for the occupant to be justified in shooting. Likewise, case history where 18-1-704.5 has been invoked to bar prosecution shows judicial opinion (not necessarily case law) that an unintentional entry may not necessarily be deemed unlawful (as which is required by the second section of 18-1-704.5)

That said, though, a lawyer prosecuting the shooter will have a difficult time working past the broken window and attempt to break into the apartment/house. Accidentally coming through the unlocked front door of a house is one thing, but breaking into the home comes much closer to construing an unlawful entry than it is an innocent mistake. In defense of the shooter, how far in should we allow someone to make it before we exercise the right to protect ourselves? We can argue the finer points around the Internet for ages but the reality is the homeowner had the presence of mind to call 911 before addressing the issue -- it wasn't a handle-jiggle and an oops.

The "victim" is dead -- we can only assume his intentions when he tried to enter the dwelling since he isn't around to tell us. If we're playing "what-if" we have to assume the chance, however small, that the kid was killed actually breaking into someone's house. It's a tragic death, yes, but there are some seriously effed-up circumstances for which the friends he drank with should own up to. How could someone get so drunk as to mistake their home for someone else's and THEN continue to break in despite the differences, the fences not matching and generally being in the wrong place to begin with -- a block away from home.

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The only person responsible for the victim's actions is the victim. He could just as easily have stumbled in front of a bus. No one else is to blame for that. As far as the shooting, it doesn't appear lawful at all, at least not at this early stage. If he didn't enter the dwelling he didn't fulfill #1, and if he didn't fulfill #1 he can't have fulfilled #2 or #3. In some states Castle extends to property, but not Colorado. I'm sure more information will come out. My condolences to his family and to the shooter.

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centsi wrote:

As far as the shooting, it doesn't appear lawful at all, at least not at this early stage.

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The shooting was perfectly legal.

The author of the news story doesn't seem to know much about the protections afforded by the law. Other cases have stretched the law, but not this one.Without definite proof that any given shooting was NOT in self-defense, it's pretty much impossible to be convicted of a crime, andsome DAs won't even try. Gary Lee Hill skirted much closer to the edge of the law than this shooter did, but still got off.
http://www.vaildaily.com/article/20060123/COLUMS/101230030&SearchID=7324839073168

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Flyer22 wrote:

SNIP The author of the news story doesn't seem to know much about the protections afforded by the law.

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The reporters repeated use of "Make My Day" says it all.

He could have said, "Homeowner's Protection Act." Or, "so-calledCastle Doctrine."

It might be nice for a Colorado resident to comment or send an e-mail highlighting the obvious bias.

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Flyer22 wrote:

centsi wrote:

As far as the shooting, it doesn't appear lawful at all, at least not at this early stage.

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The shooting was perfectly legal.

The author of the news story doesn't seem to know much about the protections afforded by the law. Other cases have stretched the law, but not this one.Without definite proof that any given shooting was NOT in self-defense, it's pretty much impossible to be convicted of a crime, andsome DAs won't even try. Gary Lee Hill skirted much closer to the edge of the law than this shooter did, but still got off.
http://www.vaildaily.com/article/20060123/COLUMS/101230030&SearchID=7324839073168

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Please outline your case for the shooting being legal, based upon what we know at this point. We have no information that the man who was shot was armed or making any threats against the occupants. It also appears that he didn't gain entrance into the home. If he didn't, how could he commit a crime in the home or use force against an occupant of that home? How are the statutory requirements met for protection under Castle in Colorado?

The article you provided above is a completely different situation in that: 1) Entrance was made into the home, 2) Another crime was committed (assault against the shooter) and 3) Force was used against the shooter. Those are the 3 requirements under CO's Castle. It doesn't appear that ANY of those requirements were met in this case.

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From the article in the OP:

He had broken the window and was trying to get in the back door, thinking he was getting in the back of his own house," Kennedy's mother, Lisa Kennedy, said she was told by police.

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and

The residents called 911 and reported a burglary in progress.

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Point #1: ALL right of self defence inside the homeis often lumped together under the "Make my Day" law, even though there are several separate laws that deal with different aspects of self defence. Anybody who has lived in Colorado for any length of time should be aware of that.

Point #2: The shooter in this storyobviously thought that there was a burglary in process, which clearly falls under the purview of CRS 18-1-704,18-1-705, and 18-1-706.

Point #3: As the "Make my Day" law explicitly states in its first section, "The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes."

Point #4: Therefore, the shooting clearly falls under theSPIRIT of the "Make my Day" law, even if it technically does not come under the letter of that particular sub-set of the law dealing with self defence.



[align=left]18-1-704 Use Of Physical Force In Defense Of A Person
1. Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
2. Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
a. The actor has reasonable grounds to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or
b. The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18- 4-202 to 184-204; or
c. The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 184-301 or 184-302, sexual assault as set forth in section 18-3-402 or 18-3-403, or assault as defined in sections 18-3-202 or 18-3-203.
3. Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:
a. With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or
b. He is the initial aggressor, except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or
c. The physical force involved is the product of a combat by agreement not specifically authorized by law.[/align]


[align=left]18-1-705 Use Of Physical Force In Defense Of Premises
A person in possession or control of any building, realty, or other premises, or a person who is licensed or privileged to be thereon, is justified in using reasonable and appropriate physical force upon another person when and to the extent that it is reasonably necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of an unlawful trespass by the other person in or upon the building, realty, or premises. However, he may use deadly force only in defense of himself or another as described in section 18-1-704, or when he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the trespasser to commit first degree arson.[/align]


[align=left]18-1-706 Use of Physical Force in Defense of Property
A person is justified in using reasonably and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704.[/align]

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My understanding was that the "Make My Day" law specifically refers to 18-1-704.5, at least that was what is was referred to when it was created, and "Make My Day II" or "Make My Day Better" was the bill that was going to extend the immunity to places of business and vehicles. Even court cases refer to it as the "Make My Day" provision (People v. Hayward, 55 P.3d 803 (Colo. App. 2002)).

In any case, 704.5 is the only section that provides immunity. If 18-1-704 is used the shooter can still be charged with manslaughter (or worse) and sued for wrongful death. 18-1-705 and 706 are irrelevant here, because deadly force was used and in that case those passages defer to 704. If Kennedy was on the other side of a door, I don't see an imminent danger argument unless Kennedy was armed.

Now there was a case in 2003 where a guy shot his neighbor through the door, and the DA didn't prosecute based on 704.5. In that case, the neighbor was armed with a club and broke out the homeowners door window before being shot. In the article here, they state that the Colorado Supreme Court has determined that the front porch is part of the dwelling that can be defended:

http://www.greeleytribune.com/apps/pbcs.dll/article?AID=/20031111/NEWS/31111001

The only reference I could find for that was in the 18-1-704.5 annotations:

Fact that a homicide victim was on the defendant's porch does not permit the defendant to claim immunity from prosecution for unlawful entry to defendant's dwelling unless the court finds that defendant believed that the victim intended to commit a crime or use physical force against the defendant. People v. Young, 825 P.2d 1004 (Colo. App. 1991).

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In the 2003 case the victim obviously intended to use physical force. I don't think we have enough details in this case to say that.

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Granted I did not read all the postings in the newspaper, but from what I did read, I didn't see anyone say that this gentlemen would still be alive if he hadn't gotten stupid drunk, I don't see or I just missed it but how did he get to that house? Drunk driving?Had he stayed where he was or called a cab he would be alive today. End of story. Anyway you put it, it is a very sad story.

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Taken from the article link on the first posting of this thread...

"Detectives have privately conceded Sean Kennedy was shot while drunkenly trying to enter what he thought was his apartment, the parents of the man slain in north Colorado Springs on Sunday night said."

Point of order here....

If the man was shot dead.... HOW DID THE DETECTIVES COME TO THE CONCLUSIONATTRIBUTED TO THEM? This is not to say or suggest the deceased had or has a history or illegal activities.

Only things thatare certainfrom this quoted paragraph is.

1:SeanKennedywas drunk

2: Sean Kennecy was attemptingentrance to an occupied residence that was not his.

Now if the Newsrighter would have stated the detectives speculated... I would not have a problem!

JoeSparky

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HOW DID THE DETECTIVES COME TO THE CONCLUSION ATTRIBUTED TO THEM?

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I believe because the residence was the same number, only a block away. I'll assume the dwelling looked the same, but who knows...the guy was so drunk maybe it didn't matter. They did say one apartment had a chain fence the other was a wood fence. Again not much details, maybe it was pitch black at the time (the moon was just past new).

As to how he got there, he drove according to one of the articles on the subject. So he was DUI obviously. He made a string of bad decisions that led to his death so no sympathy from me.

However, I am keenly interested in how the law will be applied here. I'm frequently away on business and I've always told my wife she can't shoot anyone under 18-1-704.5 unless they enter the house. We had an incident several years ago where someone was beating down the door. She grabbed the .357, then called the cops. The cops got there before the guy could make entry, but if she pulled the trigger and shot through the door would she be protected under law?

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Dom wrote:

As to how he got there, he drove according to one of the articles on the subject. So he was DUI obviously.

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A previous article stated that he was driven there and dropped off at the house by friends.

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Flyer22 wrote:

Without definite proof that any given shooting was NOT in self-defense, it's pretty much impossible to be convicted of a crime, andsome DAs won't even try.

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You cannot prove a negative. Once the authorities have established that you are responsible for the dead man at your back door, the burden is on you to show it was self defense. To think of it any other way is illogical.

In Colorado, Make My Day/Castle really only does one thing. It says that if force is justified, you don't need to measure that force to the threat. You can use ANY force including deadly force. From what we know so far there was little justification for force. No weapon, no known verbal threat, and probably no entry.

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Dom wrote

However, I am keenly interested in how the law will be applied here. I'm frequently away on business and I've always told my wife she can't shoot anyone under 18-1-704.5 unless they enter the house. We had an incident several years ago where someone was beating down the door. She grabbed the .357, then called the cops. The cops got there before the guy could make entry, but if she pulled the trigger and shot through the door would she be protected under law?

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No, not under 18-1-704.5. They have to #1 enter, #2 commit or imminently be committing a separate crime, and #3 use force or are imminently going to use force against an occupant. Obviously using or imminently using force covers against an occupant covers both #2 and #3 making it someone redundant.

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Folks seem to get hung up on whether the drunk was "in" the "dwelling." If I were arguing the case, I'd contest that the improvements to the property include the overall home constructed on it and the porch / back patio are legitimately part of the house despite a lack of a door or physical impediment to entering them.

The spirit of the first clause of the law establishes a Coloradan's right to be secure within their dwelling and does not stipulate that an intruder must be inside and past the front, back, or garage doors. Second, the drunk shooting "victim" broke the occupant's window and this could help establish the commission of an additional crime, whether it be vandalism or criminal trespass (which may be difficult to establish criminal intent). Thirdly, the threat of injury -- even slight -- reasonably exists if someone unlawfully entered the dwelling (even if it's just the porch/patio), broke a window and created the reasonable fear of harm by the occupants (he's not there to sell cookies).

It would be beneficial to see this become established case law, insuring we don't have to wait for someone to break into the house, come in far enough to enter inside a safe engagement range (yep, some homes are pretty small), and get close enough to hurt or kill before being taken down by the occupant. The devil's advocate argument in defense of the occupants, even if the intruder were drunk and confused, would lie in the unpredictability of the drunk person's behavior -- what if he thought he were in his own home and attacked the lawful occupants of the dwelling? All three conditions are met and honestly, I'd have a hard time reacting differently.