Nedlin: Make my day | AspenTimes.com

Nedlin: Make my day

Richard Nedlin

Last month I discussed some of the gun-control laws in Colorado, such as when and where one may be able to carry a concealed weapon. This month, I’ll discuss an often-asked question: How and when may deadly force be used to protect a resident inside their home?

Colorado is one of the most pro-gun states in the country, if not the most, as it allows people to defend themselves against intruders in their own homes. In 1985, Colorado introduced the Homeowner Protection Act, otherwise known as the “Make My Day” law. The General Assembly recognized that Colorado residents have a right to expect absolute safety within their own homes. Therefore, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against a home intruder or someone who is about to commit a crime in the home. The resident also is justified if he or she reasonably believes that the intruder might use any physical force, no matter how slight. Additionally, any occupant of the dwelling using physical or deadly force shall be immune from criminal prosecution and shall be immune from any civil liability of injuries or death resulting from the use of such force.

Much is going on with this law, so let’s break it down and what it really means to an occupant.

First, look at the wording relating to “occupant.” That does not mean that it must be the homeowner, and it raises a lot of “what ifs.” For example, if there is a party with five people, including the homeowner, and someone unlawfully breaks into the home, it would appear that any of the other four occupants would be justified in using deadly force on the intruder — even if the actual homeowner would have refrained from using deadly force.

Next, the person must make an unlawful entry. Unlawful entry can be as serious as a burglary or as harmless as a trespass. In terms of a trespass, that occurs when an individual knowingly and unlawfully remains in the dwelling of another. As a prosecutor, I saw many cases where a drunk was stumbling home and mistakenly entered the wrong apartment or townhouse thinking it was their own. Sometimes they would just stumble around drunk until they realized it was not their home, or the homeowner was awoken and told the intoxicated intruder to stumble their way back out. Thankfully it never amounted to violence, but based on law, the occupant would have the right to use deadly force if they reasonably believed that physical force was to be used upon them.

In Boulder in 2012, a homeowner shot an intoxicated young woman who walked into his bedroom at 3 a.m. The homeowner saw the woman enter the room holding something in her hand, which turned out to be just a cellphone. The occupant told the intruder to stop and that he had a gun. The intruder kept coming, and he fired a shot, hitting her in the hip. The intruder later told detectives that she thought she was at a friend’s house and got confused. The district attorney in that case exonerated the shooter and filed trespassing charges against the intruder.

As shown by that case, when there is a “reasonable belief” that force may be used against an occupant, it is a very subjective standard. Additionally, the occupant simply has to believe that the intruder might use physical force, no matter how slight. This really opens the door as to how low of a threshold an occupant needs to subjectively feel in order to be justified in using deadly force. Therefore, in a shooting inside a dwelling, the standard response always will be, “The intruder entered my dwelling unlawfully, and I had a reasonable belief that they may use force against me.”

The statute states that any person who asserts this right shall be immune from criminal prosecution or civil liability. In this context, “shall” means “must.” What if an individual in his home has very little experience with a firearm? They are sitting in their Barcalounger when an intruder uses a screwdriver to jimmy the lock. Now, the homeowner gets his gun, and as soon as the intruder opens the door, the occupant quickly fires a shot that misses the intruder. Unknown to the shooter, across the street a child is sleeping, and the misguided shot goes through a bedroom wall of the sleeping child, instantly killing him or her. Based upon this statute, the shooter would be immune from negligence and civil liability from the death resulting from the use of such force. Should there be a balancing test, or do the statutory protections of an occupant of a dwelling outweigh those of a potential innocent victim of a negligence-caused tragedy?

As one can imagine, it is not always a clear-cut decision when someone unlawfully enters a home whether deadly force should be taken. It may just be an innocent intoxicated person, but at the same time, such action may just save your and your family’s lives. However, a wayward shot might just destroy an innocent bystander’s life, as well.

Owning a gun is a tremendous responsibility, but even more so is that moment in time from when your brain impulse sends a directive to your index finger to pull the trigger. Taking a life and saving a life can get blurred sometimes when an instantaneous decision must be made. Be safe, and be smart, because you never will get a second chance.

Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. He can be contacted at 970-309-8197 and richard@nedinlaw.com.


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