Colorado doesn’t have a “stand your ground” law that allows gun owners, under certain circumstances, to use deadly force on the streets even if they have an option to retreat.
But state law and case history provide some level of immunity to those who use deadly force in self-defense in Colorado, prosecutors said. And the state was the first to enact “make my day” legislation, giving homeowners immunity if they shoot and kill intruders, still one of the strongest such laws in the country.
A person killed in a justifiable homicide in Colorado may be armed with no more than his fists.
In Florida, the acquittal of George Zimmerman for shooting Trayvon Martin has ignited a national debate about stand-your-ground laws, though Zimmerman did not invoke the law in his defense.
The Florida law permits deadly force wherever someone “reasonably believes it is necessary to do so to prevent death or great bodily harm” to himself or another. They have no duty to retreat. More than 20 states, not including Colorado, have such laws.
In Colorado, to use a gun in self-defense, the shooter must have reason to believe that he or someone else would otherwise suffer serious bodily injury or death. In effect, the law affords protection similar to that provided under “stand your ground,” Denver District Attorney Mitch Morrissey said.
“I think a jury would have found Zimmerman not guilty in Colorado, just based on self-defense,” Morrissey said.
Right stops at the door
Introduced in 1985 as the Homeowner Protection Act, “make my day” gives Colorado residents the right to shoot and kill an intruder if they believe the person intends to commit a crime and use physical force, “no matter how slight.” That extraordinary right stops at the door. Front porches and backyards don’t count.
As a result, criminal charges can vary vastly, depending on whether a shooting occurred inside or outside the threshold.
“There’s a marked difference between what you can do in your home and what you can do in your yard,” Morrissey said.
But in Colorado, as in Florida, fists can be deemed deadly weapons that justify gun use outside the home.
This month in Denver, a man shot and killed Charles McLaughlin, a drunken 29-year-old man who had tried to force his way into the man’s home.
The resident fired two shots as McLaughlin, with fists clenched according to a witness, approached him in the front yard. Both shots struck him in the chest. The shooter told a detective “he was afraid if the man got his hands on him, the man would have killed him.”
The district attorney’s office decided the shooter had acted in self-defense and did not file criminal charges but noted this was not a “make-my-day” case. The shooting occurred outside the house.
Nobody records how often “make my day” is used as a defense against criminal charges in Colorado, or how often charges are not filed based on the law. But an informal survey by Doug Wilson, the state public defender, found there have been at least 22 cases in his agency’s offices in the past year in which the law was cited as a defense. Two ended with jury acquittals, two were dismissed by district attorneys, four were plea-bargained and seven others are pending.
Twenty-eight years after its enactment, “the ‘make my day’ statute is a unique animal,” said Scott Robinson, a prominent Denver criminal defense lawyer. “It’s one of a kind in the United States.”
He said homeowners who meet the law’s criteria can be found immune from prosecution and lawsuits, can be exonerated before trial by either the district attorney or a judge and can raise the same defense if the case goes to trial.
And inside the home, the threat level justifying gun use is low.
“If I think you’re going to punch me in the arm and you’re in my house illegally, I can shoot you,” Wilson said.
Homeowner exoneratedThat figured into a 2012 Boulder case in which a homeowner shot an intoxicated young woman who walked into his bedroom after 3 a.m.
Homeowners Timothy Justice and Doreen Orion were asleep in bed. They had shut off the lights and closed the blinds but left one side of their bedroom French door open for ventilation.
They awoke to find an intruder had come in through the sliding screen door, carrying what looked to them like a flashlight. They shouted at the person to leave and warned they had a gun. The intruder kept coming. Justice fired one shot toward the light, striking the intruder in the hip.
The intruder told a detective she thought she was at a friend’s house and was confused by all the shouting and yelling.
The district attorney’s office quickly exonerated Justice, citing the “make my day” law, and filed a felony trespassing charge against the woman. Boulder District Attorney Stan Garnett called the results just. But “it would have been a more complex case without that law, that’s fair to say,” he said.
The intruder’s attorney, Colette Cribari, contends the law makes it too easy to dismiss shootings inside dwellings without much thought. “(She) came into the place, she was armed with a cellphone,” she said.
By contrast, 81-year-old homeowner Robert Wallace was charged with attempted first-degree murder when he fired his gun at Alvaro Cardona and Damacio Torres-Ochoa, two men in a pickup stealing a flatbed trailer outside his Wheat Ridge home in 2010. One shot struck Cardona in the face, blinding him and causing a serious brain injury.
” ‘Make my day’ did not apply. He was not in danger in his residence,” said Pete Weir, the district attorney in Jefferson County. “Somebody fleeing from the scene, you’re just not allowed to be shooting at them.”
Wallace ultimately pleaded no contest to reduced charges and did not go to prison. He is 84 now. In an interview last week, he said he had no idea he was breaking the law and did not know he had shot one of the men until police came to arrest him days later for attempted murder.
As he fired at the men driving off in the dark, “the trailer almost ran me over,” he said.
He estimates he spent $70,000 on legal fees and related costs. “That took away my nest egg,” he said. He also spent $5,000 for a new chain-link fence around the field beside his small brick house on busy Sheridan Boulevard.
It encloses the flatbed trailer.
David Olinger: 303-954-1498, dolinger@denverpost.com or twitter.com/dolingerdp
This story has been updated to remove the name of the intruder in the Boulder case in accordance with Denver Post policy on removing names on older stories where the name is of limited value to the article.