October 22, 2006

Denver Discedere Ad Inferos

Discedere ad inferos is Latin for "go to hell" in case you were wondering.

Denver. It'd be an alright place except for the scum who run the damned town.

Denver prosecutor Dawn Weber is arguing that the state's "make my day" law does not apply to businesses while she's prosecuting Christakes Christou for first degree assault. Christou is the Denver bar owner who shot an intruder last January.

"I believe the intent of the law is to enable people to protect their families and themselves in their homes,' Steinhauser said. She said Christou, however, can claim self-defense."

Depending upon how a judge looks at things Steinhauser may be right. Letís look at some of the legal aspects in a little more detail:

Just to make things clear the misguided fellow who broke into Christou's bar was shot in the stomach but recovered. He pled guilty to trespass & was placed on probation but since has violated said probation & is serving a two year sentence.

Looking at Colorado law I found that assault in the first degree can either be a class 5 or a class 3 felony. It depends heavily on the DA accepting that it was committed in the heat of some passion which a reasonable person would be effected by. If that is the case it's a class 5 felony. Otherwise it's a class 3.

According to the sentencing guidelines for Colorado a class 5 felony will get you from 1 to 3 years in prison. A class 3 will land you 4 to 12 years in the big house. Either one would make it illegal under federal law to own a firearm ever again. Oh & there's a mandatory sentencing statute applicable to violent crimes. It makes the minimum sentence at least half of what the maximum could be. So if it's a class 5 felony that'd mean a minimum sentence of 1.5 years. If it's a class 3 that'd make the minimum sentence 6 years.

For comparison first degree criminal trespass is a class 5 felony. Second degree criminal trespass is a class 3 misdemeanor. Third degree criminal trespass is a class 1 petty offense. Here's the sentencing statute for misdemeanors. A class 3 misdemeanor will get you from 6 to 18 months. Needles to say a petty offense is less than a misdemeanor.

Assuming the two years was for the same offense & not a compilation of offenses or a separate charge then it looks like it was first degree criminal trespass that was pled to. That'd be consistent with the 1 to 3 years in prison the statue law sets out.

Still he got a lesser minimum than Christou would because of the additional sentencing accompanying a crime of violence. If he was sent to prison last April & Christou gets convicted in December then he may get out of prison before Christou does.

But it's a damn shame the guy is being prosecuted at all. It seems it would have been mentioned if there were circumstances that warranted such a prosecution. Since there wasn't then it stands to reason that the criminal in question broke into Christou's bar & was promptly shot for the deed. They're not saying it was an unjustified shooting because it was an immoral act. They're saying it was an unjustified shooting because the "make my day" law doesn't apply to businesses. The presumption is that if said law did apply to businesses then Christou would be in the clear.

Granted I've heard not much more about this case than I've linked to but I haven't heard anyone say "even under the make-my-day law this was a bad shooting". If that were the case the press would have seized on that & ran it in the first few paragraphs of the story.

What we have here is Ms. Weber (& presumably her bosses) saying that since Christou used deadly force then they'll prosecute him & hope the judge agrees that he acted outside of the "make my day" law.

Let's look at the relevant sections of Colorado law pertaining to self defense.

18-1-704. Use of physical force in defense of a person.

"(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

(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"

Now call me old fashioned but usually when someone breaks into a bar & discovers people there they tend to haul ass unless for some reason they think they can take whoever is in the building. It is not unreasonable to believe that in such a case a person will either run or attack. It's that whole "fight or flight" thing. So it is not unreasonable to conclude that the burglar was capable & willing to use force against the occupants of the bar.

The guy was committing burglary. He was committing burglary in a place described in the text of the law ("business establishment"). It is likely that he "reasonably appeared" to be close to using force against one or more of the occupants.

18-1-704.5. Use of deadly physical force against an intruder.

"(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

(2) Notwithstanding the provisions of section 18-1-704, 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.

(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force."

That's the infamous "make my day" law.

The defense is arguing that since Christou sometimes sleeps in his bar that it constitutes a dwelling according to the "make my day' law. Not an unreasonable argument but I think he'd be better relying on the preceding section of Colorado law regarding the use of physical force in defense of person (18-1-704).

In any case the Denver DA is going for a felony conviction. The Denver DA has not said that if this had occurred in a private residence that it would still be prosecuted. Therefore I can only presume that it's an attempt by those asshatted rejects from Subphylum Vertebrata to test the "make my day" law. It seems that they don't think it's justifiable simply because of the type of building the act of defense occurred in. Not that the act itself was immoral, but that it occurred in a place not zoned for it.

A hearing on the merits of the "make my day" law defense will be held in November. Giving Colorado's judiciary I won't hold my breath that it'll work out for Christou. I'll be hoping though.

I don't know how much public opinion would sway the DA but in case you'd like to explain that your tourist dollars may go elsewhere because of their actions then feel free to express yourself (politely of course).

Denver DA contact info. That number again is (720) 913-9000.

Posted by Publicola at October 22, 2006 06:42 AM | TrackBack

Leaving the issue of whether it was a good shooting or not aside for a second, I think that its worth pointing out that English common law (and our version of it) has always treated businesses and residences differently.

Burglary is traditionally accorded a higher level of punishment than merely stealing from a business. That is, Burglary is traditionally ONLY nighttime entry into an occupied dwelling for the purposes of committing a felony.

So the distinction between residences and businesses isn't some sort of weird contrivance by the Denver DA. Hell for that matter, no matter what one thinks is moral or correct, there's precious little tradition to support a shooting to protect property from theft alone.

Posted by: Bob at October 23, 2006 05:44 PM

I would make arguments that using force in defense of property is not necessarily a bad ting & in some cases may be constitutionally protected. But that's another argument.

Burglary is not just unauthorized entry into an occupied dwelling &/or a private residence. A lot (if not most) burglaries occur when the premises is unoccupied. Least in the states it seems to lean that way.

I can understand the rationale behind treating businesses differently than residences during business hours. After business hours however the reasons for the different treatment evaporate.

It may be legally correct that the "make my day" law applies only to residential dwellings. My beef is that the Denver DA's office is not concerned with it being a justifiable shooting in general. It seems they just wish to use this to A: remind folks that they're (the .gov) the only ones who should use force & B: try to test & constrict the possible limits of the "make my day" law.

Posted by: Publicola at October 24, 2006 12:44 AM

You're ocmpletely correct that most states have defied burglary to encompass more than just the common law version I mentioned. I guess part of my opoint was just to throw some context on why the law would have any differences between residences and businesses.

I actually agree that force to protect property can be morally/ethically ok in some situations, but the vast majority of states don't see it that way (and haven't historically). I mainly threw that into the discussion just to point out that the shooting a guy that's stealing from the till in your bar has some legal issues of its own.

The way I read the Colorado castle doctrine/make my day law is that you do have to have a reasonable fear of physical harm for a shooting to be justified in your home. So, in essence, the bullets better enter from the front, not the back of the guy as he's running for the door. Do you have any idea if there's been any cases on that topic yet?

I honestly don't know enough from reading the news reports to have any idea what the bar shooting was actually good or not. I am pretty suspicious of the Denver PD/DA since they've done a lot of illicit gun confiscation in the past.

Posted by: Bob at October 24, 2006 09:59 AM
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