Examining Oklahoma's Revised SDA

[DeltaB]

In light of the current Ersland case, this fear is a reality... and one of the things that will end up in Curcuit Court...and is one of the issues our amended law brings with it..

(from the ColoradoStatesman)
There is no period of time or limit on what the occupant can do. The criminal may have been rendered unable to move or may even be unconscious. That does not matter under the present law. Wilbanks points out defendant’s response does not have to be a reasonable use of force. In a number of cases, after the intruder can no longer “participate” the defendant continued to inflict damage. Wilbanks writes of a case where defendant stabbed the victim 32 times and even kept stabbing him after he had fallen to the floor. The case was dismissed under “Make My Day.”

“The occupant could start by shooting intruder’s toes and work his way up and torture or even execute the intruder. The law does not indicate the threat has to be continuing.” The law should be changed to require immunity only when the threat is believed to be continuing.

 

[Bartholomew Roberts]

DeltaB, I am not sure how the Colorado law was written as your article does not include that, so I can't say if the assessment in the article is correct. I can point out that the statute is not similar to Oklahoma though because one of the major changes the article you linked to recommends is to change "uninvited entry" to "unlawful entry."

As you can see, the Oklahoma statute already started out using the phrase "unlawful."

 

[carguychris]

I can point out that the statute is not similar to Oklahoma though because one of the major changes the article you linked to recommends is to change "uninvited entry" to "unlawful entry."

As you can see, the Oklahoma statute already started out using the phrase "unlawful."

+1 again. I've found the CO statute in question...

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.

(emphasis mine)

From the contents of the Colorado Statesman article, I assume that the CO proposal was to add business owners and employees to this statute.

Note that the CO statute requires two tests before criminal intent comes into question:

• The entry must be unlawful; and
• The visitor must be uninvited.

However, many businesses naturally and routinely invite the general public to enter, so the "uninvited test" would have to be removed to make the law meaningful. However, the wording of the statute makes this change difficult without rendering the entire law overly broad.

Also, as the author of the article (IMHO correctly) points out, the statute already contains one apparent contradiction- does it apply to "citizens... within their own homes" (section 1) or "any occupant of a dwelling" (section 2)? Section 1 implies ownership, while Section 2 merely implies physical presence, rendering the statute somewhat vague. Can the maid shoot an uninvited intruder? What about the UPS delivery man?

I suspect that supporters of the existing law were afraid of throwing the baby out with the bathwater and let the proposal die in committee rather than risk gutting the existing poorly-worded law.

IMHO the OK law is worded better because it establishes at the outset that the entry must be "unlawful and forcible", and it is more specific about who is allowed to use deadly force.

 

[Bartholomew Roberts]

Another important distinction is that whether in a home or a business, the Oklahoma law gives you the presumption that you had a reasonable fear, which can be rebutted by evidence that your fear was not reasonable as I explained earlier.

The Colorado law has much stronger language for the homeowner than the Oklahoma law. If we applied just the statute that carguychris quoted (disregarding any other relevant statutes or case law and assuming a place of business is covered) to the Ersland case, then all Ersland would need to justify shooting the man on the ground under Colorado law is a reasonable belief that the man "might use any physical force, no matter how slight, against an occupant."

If I was Ersland's attorney, I'd like my chances under the Colorado law much better than the Oklahoma law. Because the Oklahoma law is drafted so differently from the Colorado law, I don't think that using the Colorado attempt to expand Castle Doctrine to businesses is a good comparison for your argument that the Oklahoma law is overbroad.

IMHO the OK law is worded better because it establishes at the outset that the entry must be "unlawful and forcible", and it is more specific about who is allowed to use deadly force.

+1 back at ya. Even though the Colorado law appears to offer stronger protection, it isn't drafted very well. I think the Oklahoma law offers plenty of protection for the homeowner or business owner while being drafted better and having less grey areas.