No Need To Read The Denver Post

I mentioned a few days ago that the Denver Post had an editorial up condemning the proposed expansion of Colorado's use of force laws. Let's go ahead & give it a proper fisking shall we?

"No need to expand home-intruder law
HB 1011 is an unnecessary attempt to expand the current 'Make My Day' law to cover people who feel threatened while in their cars and businesses."

So the Denver Post is arguing that people who feel threatened don't need legal protection?

"Colorado already has two laws that protect crime victims who use deadly force to protect themselves. That's why a controversial proposal dubbed the "Make My Day Better" bill is unnecessary and potentially troublesome. Lawmakers should quickly consign it to the legislative history file."

There are two laws that cover the use of deadly force. They'd be 18-1704 & 18-1-704.5 respectively. I did a post about Colorado's use of force laws here. But the problem is that businesses & cars are not specifically mentioned in them, so anti-self defense minded DA's can make a world of trouble for folks.

"The legislation, House Bill 1011, sponsored by Rep. Cory Gardner, R-Yuma, would expand the current home-intruder law to include people who feel threatened by another person while in their cars and businesses. It creates the 'presumption' that the person in the house or car or business 'has a reasonable fear of imminent death or serious bodily injury' to themselves or others."

Here's a .pdf of House Bill 1011. It amends Colorado Statute 18-1-704.5 (the infamous "make my day" law) to include vehicles & businesses. It further spells out the exceptions to its protection which would also be applicable to vehicles & businesses.

"Current law places the onus on home occupants to prove they were in fear of their lives. Gardner's bill places the burden on police and prosecutors to prove they weren't. That's preposterous."

Guess "innocent until proven guilty" is out of vogue at the Denver Post.

I must call bullshit. The use of force laws in Colorado, including any amendments made by House Bill 1011, would be affirmative defenses. That means the burden of proof is on the defendant that claims the laws' protection.

Further the current "make my day" law does not require anyone to prove they were "in fear of their lives". What the current law does is create a legal presumption that if someone commits an illegal entry into an occupied dwelling then it's not necessary to prove the occupants were afraid of being hurt or killed. What the current law demands is that a person who claims protection under Colorado's use of force laws must prove that certain facts were present. That's quite different than trying to convince someone of an emotional response to circumstances.

"Colorado's current intruder law says that 'any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force' against an intruder if they reasonably believe 'that such other person might use any physical force, no matter how slight, against any occupant."

There's a little more to it than that:

"...any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant."

That's the meat of Colorado statute 18-1-704.5

"The state's self-defense law says that 'deadly physical force' may be used if a person has 'reasonable ground to believe' they or others are in 'imminent danger of being killed or of receiving great bodily injury,' whether they're in a car, office or elsewhere."

Here's the meat of Colorado statute 18-1-704 which they partially quoted:

"(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or

(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or

(c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203."

"The bill is scheduled for a hearing before the House Judiciary Committee on Wednesday."

According to RMGO's Billwatch page it's passed & the next step is debate on the floor of the House.

"We're satisfied that Colorado already has ample law to immunize potential victims of, say, carjackings and business intrusions from prosecution."

I'm not. Neither is one Mr. Christou. I agree that the law should cover most situations as is, but the problem is DA's that think self defense is anachronistic in theory & practice & anyone who is not a cop should not be permitted to use deadly force against anyone.

"Moreover, HB 1011 has the potential to expand gun violence."

Sigh. Technically yes, but the Denver Post fails to recognize there's a good form of gun violence (self-defense) as well as a bad form of gun violence (confrontational crime). But they rally to their anti-gun phrases in an effort to keep both kinds of firearm violence away from their sensibilities.

"Colorado law allows people to carry concealed weapons in their homes, cars and businesses."

Allow? No; Colorado law recognizes the Right of folks to carry in their homes, vehicles & businesses. When the Denver Post can understand the difference they may have some hope.

"It seems to us that this measure will have the unintended consequence of providing cover to criminals, including gang members, who decide to shoot from their cars."

That's primarily because the editorial board of the Denver Post is incapable of seeing that protective firearm uses are not the same as predatory firearm uses. But I see no circumstances where this law would make predatory use of firearms any more legally justified than they would be under the current laws which the Denver Post states covers vehicles.

"District Attorney Mark Hurlbert of the 5th Judicial District said, 'If it's not self-defense, we don't need to create another law that makes it self-defense.' He said the bill raises 'serious concerns that this potentially could be used as a defense for drive- by shootings and those kinds of crimes."

Enter the hoplophobic asshat known as the DA.

How the hell can a law that creates a presumption of self defense when a vehicle is invaded justify a drive-by? It sometimes amazes me that a person could make it through law school yet still have the reading comprehension of a 2nd grader. House Bill 1011 clearly states that:

"(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling, PLACE OF BUSINESS, OR VEHICLE is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, PLACE OF BUSINESS, OR VEHICLE, and..." (emphasis mine)

As for the first part of his statement, the problem is that in many cases it is self defense but asshat DA's prosecute anyway just to see if they can make something stick. Hulrbert's ilk are the reason that an expansion of the use of force laws are needed so of course they'll complain that it's not a good idea to do so.

"The Colorado District Attorneys Council is not taking a position on the measure. Colorado sheriffs support the bill. But Boulder County Sheriff Joe Pelle, president of the association, has asked the bill's sponsor to amend the bill to exempt law officers serving a warrant or making a vehicle felony stop at gunpoint. 'We don't want this to become a defense' for shooting an officer, he said."

I guess the sheriff doesn't want a 92 year old woman who hits a few cops that serve a faulty warrant to walk away scot free (if she lives). There is no reason to believe House Bill 1011 could be used to justify shooting a cop who is performing his or her legitimate duty. Now if the warrant is flawed or if the vehicle stop is performed under illegal circumstances then it might come into play, but given jurisprudence in that regard it's doubtful that it'd be an effective defense. The sheriff has little reason to worry - he'll still be one of "the only ones" even if House Bill 1011 passes.

"That's reason enough to reject this unnecessary measure altogether."

Of course the Denver Post looks to the opinion of one law enforcement professional who fears his "immuner-than-thou" status being threatened as more than ample reason to enable overzealous anti-self defense DA's to keep on using tax payer money to put folks behind bars for protecting themselves.

The Denver Post's anonymous objections are bullshit. This proposed amendment to the use of force laws creates no harm that I can see to non-predatory folks. I do have an objection to the bill though it's much different than something the Denver Post would fuss about.

In the exceptions to the law the following appears:

"(2.5) THE PRESUMPTION SET FORTH IN SUBSECTION (2) OF THIS SECTION DOES NOT APPLY IF:

(c) THE OCCUPANT IS ENGAGED IN AN UNLAWFUL ACTIVITY OR IS USING THE DWELLING, PLACE OF BUSINESS, OR VEHICLE TO FURTHER AN UNLAWFUL ACTIVITY."

This means if I'm smoking a cigarette in my bar or if I'm parking illegally then some asshat DA is going to assert that I cannot claim self defense. Before you say that it's unlikely a DA would be that much of an ass I should remind you that the reason House Bill 1011 is needed is because DA's (around Denver especially) are often that much of an ass.

I'd hope they clean up the "unlawful activities" language a bit but even as is it'd be a possible fix to the problem of folks in cars &/or businesses being wrung through the legal system by asinine prosecutors. Well as long as they don't smoke or double park.

The Denver Post's objections are not to any real harm that would be caused by this bill, but to the idea that folks are responsible for their own safety & should not be prosecuted for it. Luckily the bill's fate is not up to the editorial board of a paper that's best use is to line bird cages with. If you're a Colorado resident get in touch with your legislator & senator & urge passage of House Bill 1011, but without any amendments exempting law enforcement specifically & with a redaction of the "unlawful activities" language.

& for the record, the Denver Post, like its' namesake, can go to hell.

Posted by Publicola at February 4, 2007 03:08 AM | TrackBack