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Publish Date: 9/17/2005

Weld DA will make call on ‘Make My Day’ shooting

It’s 3 a.m. Sunday, May 13, 1990.

The sound of a window breaking awakens Ona Boutcher, who alerts her 69-year-old husband, Francis. Francis Boutcher pulls his .38-caliber revolver out of a closet and confronts the intruder in the kitchen of his home at 1020 Collyer St.

The two struggle. In the dining room, the intruder shoves Boutcher, who fires one shot and misses. The intruder throws a chair at Boutcher and pushes him to the floor.

Boutcher fires two more times.

One bullet hits Laureano Jacobo Griego Jr. in the head, killing him.

An autopsy later revealed the 18-year-old Longmont man had been drinking and smoking marijuana before he died.

The Boulder County District Attorney’s Office did not pursue charges against Boutcher, citing Colorado’s “Make My Day” law.

The Colorado Homeowner’s Protection Act of 1985 gives the occupant of a dwelling the right to use “any degree of physical force, including deadly physical force,” if a person is there illegally and seems intent on committing another crime. The occupant must have a “reasonable belief” that the intruder has committed or will commit a crime or might use physical force against anyone inside.

The law got its colloquial nickname from a line in a Clint Eastwood movie.

While Boutcher’s killing of Griego was justified under the law, it was not easy for the couple to accept, according to police.

“They were both devastated,” said Longmont Police Cmdr. Craig Earhart, who was the first sergeant at the scene that morning. “They were both very shook up by it.”

Both Francis and Ona Boutcher have died since the incident.

Almost immediately, police knew the “Make My Day” law applied to the situation, Earhart said. He believes it was the first situation of its kind in Longmont after the law passed.

Even without the “Make My Day” law, Francis Boutcher likely would have been protected by laws allowing people to defend themselves.

The difference is, self-defense laws require someone to use a reasonable degree of force against an imminent threat. The “Make My Day” law allows a resident to use any degree of force against an intruder to protect himself, other residents or his property, Earhart said.

“You don’t have to believe they’re going to kill you or assault you,” Earhart said.

The Weld County District Attorney’s Office will have to consider if the “Make My Day” law applies to Wednesday morning’s shooting in Meadow Vale, a subdivision east of Longmont. James Haflich, 49, shot Nathan Weathers after the 2004 Skyline High School graduate crawled into his house through the back window at about 4 a.m., according to the Weld County Sheriff’s Office.

Weathers, 19, survived and is in serious condition at Longmont United Hospital.

The gunshot wound was not serious, and his injuries likely were sustained in a motorcycle crash from earlier in the night, according to a sheriff’s spokeswoman.

The sheriff’s office said Weathers was intoxicated and likely thought he was entering his father’s house, a block away and on the same side of the street and distance from the corner.

While Boulder County District Attorney Mary Lacy agrees with the law’s foundation — “You should be able to defend yourself in your own home,” she said — the possibility that people could be shot and killed does make her nervous.

She is, after all, the chief prosecutor in a college town, where intoxicated students do sometimes wander into the wrong houses.

“Make My Day,” she said, makes such situations more dangerous.

“There’s good and bad to (the law),” Lacy said.

Because “Make My Day” cases in which charges are not filed are not tracked judicially, it’s impossible to know exactly how often the law comes into play.

But such cases often make headlines.

In 2003, Weld County District Attorney Al Dominguez appeared on a national cable talk show to explain the law and why he was not charging Ault resident Eric Griffin with murder. Griffin shot and killed his neighbor, Richard Hammock, on Nov. 2 that year after Hammock threatened to burn down Griffin’s house and broke a window in his front door.

The law also can be used as a defense at trial, allowing attorneys to argue that their clients were allowed to use deadly force.

Court cases have continued to refine the law. For example, the Colorado Supreme Court said “unlawful entry” means a “knowing, criminal entry.”

The court also set the standard that the “reasonable belief” of the resident is more important than the intruder’s conduct when determining if the intruder was going to commit a crime after illegally entering the home.

Before the Legislature passed the “Make My Day” law, Coloradans were not legally permitted to “instantly” kill someone else to protect their property. The court ruled in 1887, for example, that “a man may use all reasonable and necessary force” to protect his property, but “he cannot instantly carry his defense to the extent of killing the aggressor. If no other way is open, he must yield” and seek legal assistance — through criminal or civil courts — to recover his property.

Victoria Camron can be reached at 303-684-5226, or by e-mail at vcamron@times-call.com.

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