Home Is Where the Hurt Is

Coloradoís Make My Day law was designed to protect homeowners who were forced to kill in self-defense. Hereís who itís really helped.

At his 1987 trial, Lopkoff claimed that Lafitte had forced his way into the house. Lopkoff, fearing for his life, had stabbed him in self-defense. But the Jefferson County District Attorney's Office painted a far different version of the confrontation: Prosecutor Laura Dunbar contended that Lafitte, who was unarmed, merely pushed open the door and asked if Michelle was there -- the story given by Scharlemann, who was listening from Lopkoff's bedroom.

Lopkoff, whose defense was based solely on the Make May Day law, was acquitted of second-degree murder. Hampering the prosecutions's case, of course, was that Lafitte was not present to give his side of the story.

David Guenther.
David Guenther.

Despite the strict legal requirements contained in the law, imagining a break-in by a stranger is easy enough for anyone who has heard a mysterious bump in the middle of the night. In their effort to make a strong case for the then-proposed law, in 1985 legislators and supporters laid out the same frightening scenario so often, it began to seem typical: It's 3 a.m., a homeowner is asleep in his bed, and he hears a noise. He grabs his (lawfully acquired) firearm and tiptoes downstairs, where he confronts an intruder intent on doing him and his loved ones harm. He aims and fires.

Why should he be the one who is legally blamed?

It is difficult to know exactly how many times the Make My Day law has kept a person who has taken another's life from going to trial or to prison. The law is an immunity statute: When it applies to a case, it generally prevents a person from being prosecuted. So from the standpoint of criminal-justice record-keeping, Make My Day cases aren't really cases at all -- rather, they're non-cases. As a result, there are no comprehensive statistics on how many times the law has been used in its fourteen-year life span.

Still, the law appears to have been applied rarely -- only about three times a year. Westword has found and reviewed approximately fifty cases in which the law was applied, or attempted to be applied, to self-defense killings or assaults. What is abundantly clear is that the classic profile drawn by legislators in 1985 as they attempted to sell the law are, by far, the exception rather than the rule.

Generally, the killings are much messier. Many of the people involved, like Richard Skala and Kelly Green, knew each other well and had themselves created a fractious social situation that spun out of control and into violence. Lovers' triangles make up a sizable percentage of Make My Day cases.

In many of the cases, the participants were, like Skala and Green, extremely drunk. When John Daniels entered Frank McNeese's apartment, his blood alcohol level was .349 -- nearly lethal. (Interestingly, no one who has used a gun in a Make My Day situation appears to have been charged with discharging a firearm while intoxicated, a criminal offense.) Some of the people who were not charged in Make My Day killings had already accumulated lengthy criminal records.

That isn't to say that drunks, ex-lovers or ex-cons don't have the right to protect themselves from violence in their homes. The idea of having that specific right resonates strongly with nearly everyone. And it's difficult to cook up sympathy for any burglar. Kopel points out that even though Coleman's shooting of his neighbor's burglar wasn't protected under the law, it was still, in some ways, a success. "That guy had a long criminal record," he says. "He was shot and paralyzed, and now he's out of the crime business." Yet despite such sentiments, it makes sense to acknowledge that the price of safekeeping those lives legislators actually thought they'd be protecting is being paid at the margins.

It also makes sense to review the results of the Make My Day law for the reason that the statute represents a philosophical stepping-stone toward greater gun liberalization -- for example, relaxing the state's concealed-carry laws, certain to be brought up again in this legislative session.

The Make My Day and concealed-carry laws are different. On its face, the question of who may carry a concealed weapon and when has nothing to do with the use of deadly force during self-defense, the point of Make My Day. Yet it is naive to think about giving citizens greater freedom to carry weapons in public without granting that, on occasion, they will use them to kill people. A person who has made the decision to pack a handgun has already, in one way or another, acknowledged that he is prepared to pull the trigger. (See related story, page 22.)

Beyond that, the Make My Day and concealed-carry laws share an even more fundamental connection, says Dave Kopel, a Second Amendment expert with the Independence Institute, a conservative think tank in Golden. "The question with both is: To what degree do people trust their fellow Coloradans with firearms?"

Though they couldn't have known it fifteen years ago, supporters of the Make My Day law had Lance Fehr and Francis Boutcher in mind.

Fehr lives in a trailer park squeezed into the center of suburban Lakewood. A disabled Vietnam vet, he spends most of his day surfing the Net. He has a personal interest in near-death experiences, which he researches over the Web, and he keeps up several regular online acquaintances. He has lived in the same place for thirteen years.

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