CO Make my day law CO Make my day law

A Rocky Mountain News article today titled: Aurora man kills intruder is a bit misleading as to the CO "Make My Day" law, C.R.S. 18-1-704.5. It states that: It will be up to prosecutors to determine whether the shooting falls under Colorado's Make My Day law, which allows people to use deadly force to protect themselves in their homes from intruders. The problem with that statement is that the prosecutor does not make the ultimate determination. Rather, he just makes a charging decision. The ultimate decision is made by the courts. Indeed, it appears to be a two step process, with a court first determining whether the statute provides immunity from prosecution. Then, at trial, it can also be utilized as an affirmative defense.

The article also quotes a police spokesman who said: "We don't want people shooting people for stealing a TV," he said. "It's critical that they are in the home to commit a crime and you believe they intend to attack someone in the home." That too is a bit inaccurate. Obviously, stealing a TV is a crime. Plus, the standard is not that the intruder intends to attack anyone in the home, but rather, that "the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant".

As I mentioned above, it is interesting that the statute has been interpreted to provide both immunity and an affirmative defense. In the former, the burden of proof is on the defendant to prove it by a preponderance of the evidence, but in the later, the burden is on the prosecution, and requires a jury instruction to that effect.