Time to re-examine Make My Day law?
What if Colorado’s Make My Day Law didn’t exist?
Rather than finding Joseph Hoskins immune from prosecution in the fatal New Year’s Day shooting of Randy Cook, District Attorney Pete Hautzinger might have concluded that Hoskins unreasonably escalated the situation by introducing a shotgun into a fistfight. At a minimum, Hautzinger would have had some latitude in bringing charges against Hoskins and letting a jury decide if he acted in self-defense. In this hypothetical scenario, a jury would be tasked with factoring in whether extenuating circumstances, such as drinking, text threats and taunting, poked any holes into a legal defense predicated on the justifiable use of deadly force.
Instead, Make My Day took prosecutorial discretion out of the equation. As we noted earlier, we find no fault in Hautzinger’s application of the law. Indeed, the statute is so black and white that Hautzinger effectively had no choice in the matter. In announcing his decision, the DA expressed frustration that he could hold no one accountable.
The Cook shooting brings to light certain perverse outcomes when a prosecutor decides Make My Day is applicable. We’re not suggesting the Legislature needs to scrap it entirely, but the statute could use more robust language.
As it stands now, once a district attorney has decided that someone is immune from prosecution under Make My Day, there’s no recourse for the victim’s family. There’s no appeals process. One idea is to change the law so that it provides a legal remedy — an automatic judicial review. It would insulate prosectors and investigators from whisper campaigns and cover-up allegations and validate the results of the investigation.
A better idea is to tweak the language that provides blanket immunity or remove immunity altogether. Under Make My Day (Colorado Revised Statute 18-1-704.5) an occupant of a dwelling is immune from prosecution for using deadly physical force against another person if the other person has made an illegal entry into the dwelling and if the occupant reasonably believes the other person has committed or will commit any crime in the dwelling and the occupant reasonably believes the other person might use any physical force, no matter how slight.
Under these most liberal and subjective of parameters, prosectors’ hands are tied. Under the right conditions, a home- dweller could get immunity from killing an obnoxious neighbor in a shoving match over loud music. A woman could be shot, consequence-free, for barging into a house and slapping her ex for spreading rumors about her.
The law was intended for people to feel safe in their homes, but it lacks the precise language to prevent a miscarriage of justice.
We think the law should reflect that deadly force is justified when a person reasonably fears for his or her life.
Invariably any law will bump up against a perfect storm of special circumstances that reveal its shortcomings. Then it’s up to lawmakers to decide if it’s time to change it.