COA: No "Good Faith" Exception to Unlawful Entry Element of "Make My Day" Law

The Colorado Court of Appeals has ruled that there is no intruder "good faith" exception concerning the unlawful entry element of Colorado's "Make My Day" law. In People v. Zukowski, the defendant was convicted of first degree assault of a person who entered the defendant's condominium after 1 AM. The defendant was denied pre-trial immunity based on the "Make My Day" law, but asserted the law as an affirmative defense at trial. At trial, the jury was instructed, in part, that "...in order for the [Make My Day defense] to apply, the other person's unlawful entry into the dwelling must have been made in knowing violation of the criminal law. An entry made in the good faith belief that it is lawful, is not an entry made in knowing violation of the criminal law." (emphasis added) On appeal, the COA ruled that the instruction was not in accordance with the "Make My Day" statute, which makes no such provision for a "good faith" exception to the unlawful entry element of the defense. As a result, Zukowski's conviction was reversed and the case remanded for a new trial consistent with the COA's ruling.

To review, Colorado law provides immunity and/or an affirmative defense when the occupant of a dwelling uses deadly force against a person who has unlawfully entered the occupant's dwelling and the occupant has a reasonable belief that the intruder 1) has committed, is committing or intends to commit a crime inside the dwelling other than the unlawful entry, and 2) uses or may use physical force, no matter how slight, against any occupant of the dwelling. All three elements--unlawful entry, additional criminal activity, and use/threat of force against an occupant--must be present to assert immunity/defense under "Make My Day." This is but one example of many legal defenses that can be asserted to refute criminal charges; anyone charged with a crime should consult an experienced attorney to explore all possible legal defenses.