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.

"I never thought I'd take a man's life," Boutcher says. "I never even featured it. But I wasn't thinking about what I was doing. When someone breaks into the home that you bought and paid for -- I'm not going to let a person come in and take what I put my sweat and blood into."

Several days later, the Boulder County District Attorney's Office informed Boutcher that he would not be charged with murder. "The Make My Day law is about the only thing that saved my butt from being sued," he says today.

Still, Boutcher has paid a private price for taking a man's life. For months after the incident, he had trouble falling asleep, kept awake by an endless nightmare film loop of him killing another human being.

David Guenther.
David Guenther.

"There's no glory in it," he said soon after the 1989 incident. "God did not put us on this earth to take other people's lives. A young man lost his life on Mother's Day. It's a tragedy. It's too much."

By the time a gun showed up, Mr. Hermis had twice assaulted his supervisor, Mr. Brown, with a knife. And there was the promise of more conflict: After the second near-stabbing was broken up, Hermis had sworn that the next time the two men fought, one of them would "go off in a black box."

Brown was not about to be that person. He started carrying a handgun with him to work. The precaution proved useful. Several days later, Hermis came at his boss with a knife yet again. Brown ran back to his coat, about 25 feet away, and, while Hermis struck at him with the knife, shot four times.

Brown was convicted of murder after the judge instructed the jury that "it is necessary to remember, in considering the question of self-defense, that the party assaulted is always under the obligation to retreat so long as retreat is open to him." Incensed, Brown appealed, and in 1920, the case was heard by the United States Supreme Court. A year later, Justice Oliver Wendell Holmes wrote his opinion, a turning point in self-defense:

"The failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing, not a categorical proof of guilt. The law has grown, and...it has tended in the direction of rules consistent with human nature...If a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his guard. Detached reflection cannot be demanded in the presence of an uplifted knife."

It was the first time the country's highest court had stated so clearly that a person being attacked had the right to actively defend himself -- to the death, if necessary -- rather than run away. Since then, laws generally have moved in the direction of giving the benefit of the doubt to the person being attacked.

In the early 1980s, a wave of states began drawing a legal distinction between a man being attacked in, say, a bar and a person repelling an intruder in his own home. California was one of the first, with its 1984 "Home Protection Bill of Rights." The new law turned the traditional notion of self-defense upside down. Before, a homeowner who killed an intruder in his own house had to prove that he had feared severe injury or death in order to escape prosecution for murder. But California's Bill of Rights gave the homeowner the benefit of the doubt: It assumed that once someone broke into a house, the person inside had every reason to be afraid he could be hurt -- and thus was justified in killing the intruder.

Colorado's Homeowner Protection Act followed California's by a year. Vicki Armstrong, then a state senator from Grand Junction (today the Colorado secretary of labor) got the idea after a series of town meetings in which citizens voiced their fears. The Colorado version was slightly less liberal than California's; a homeowner here had to prove he feared some kind of physical threat -- "no matter how slight" -- from a trespasser before he could kill him. In theory, a homeowner who thought he might only be jostled could nevertheless use deadly force to defend his house and family. (Armstrong did not return several calls from Westword.)

This significantly changed the self-defense laws Colorado already had on the books. In the old laws, a person who killed another in self-defense had to prove that deadly force had been the only possible course of action to repel the attack. One couldn't shoot someone who merely shoved him and then expect to get away with it.

The first Make My Day case to hit the courts proved that no matter how carefully crafted a law may be, unforeseen circumstances can still squeeze through. The case involved an Idaho Springs police officer who was severely beaten while trying to take a child from a local man, a situation the law's authors could not have predicted. In November 1985, Jerry Malczewski was cleared of assault charges when a Clear Creek judge, William Jones, decided the police officer had entered Malczewski's house illegally, and so the new Make My Day law applied. "It's a scary statute, gentlemen," the judge commented as he dismissed the charges. The state Supreme Court later reversed him and sent the case back to district court, but the police officer died before the case could be retried.

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