"Make my Day" defense for drug dealer who killed his own daughter?

[Stagger Lee]

OK, so here's a drug-dealing gang member, complete with prison tats, who was using his 8 year old daughter to act as a go-between with his customers when his customers tried to rob him. He shot at them but hit and killed his daughter, who dies with marijuana in her hand.

Now he's claiming that he should escape prosecution under Colorado's "Make my day" law, which allows deadly force to be used against attackers in one's home.

http://www.denverpost.com/search/ci_10107889

I call total BS.

 

[JuanCarlos]

Don't most self-defense laws have an exception (as in, you can be convicted) for uses of force during the commission of a crime? Or maybe it's only felonies. Or maybe I'm wrong, I'm sure somebody else will know.

Also, I'm pretty sure a majority of self-defense laws also don't necessarily cover recklessly causing the death of a third party, in this case his daughter. Of course, recklessness must be proven, but it sounds like it might not be too difficult in this case.

So I say good luck to this guy in his defense. And, of course, I mean good luck in the most sarcastic sense possible.

 

[TwoXForr]

Any cites on the actual wording of the law? Would be intrested in the elements of the law.

 

[divemedic]

Or maybe it's only felonies.

Distribution of a controlled substance is a felony in every state that I am aware of.

 

[Tim Burke]

OK, say he's off the hook for shooting at the other drug dealers. Nevertheless, a death resulted from his commission of a felony. In many jurisdictions, that's felony murder. He's grasping at straws.

 

[DaveBeal]

The Colorado "Make My Day" law:

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.​

I don't see any exception for criminal activity by the shooter.

 

[Socrates]

HMMM. This is how we loose rights. Bad facts equals bad law.

We don't know if his action was a misdeameanor, selling pot, or felony. That might affect the felony murder rule in that state.

The crime is the other 4 guys coming in, and trying to rob him, and, since they started shooting, I suspect they were trying to kill him. The felony-murder rule, if they have one, should apply to the robbers, not the drug dealer. Even though the dealer shot his daughter, some states have extended the felony-murder rule to apply to innocents shot by the police, or, people defending themselves.

As abhorent as using a 10 year old to walk pot out of the house is, it's SOP with the dealers in this area.

This is a case of a DA using the high profile for publicity.

The drug dealer was guilty of dealing drugs. He is probably guilty of child abuse in about 100 ways.
It's a HUGE jump to go from that legal position, to that he's responsible for the criminal actions of a group trying to rob and kill him, and, the actions and results that follow from that action.

The entire concept of felony-murder is that if someone dies in the commission of 8 usually enumerated felonies,
that the participants in the crime, the BAD GUYS THAT STARTED THE SHOOTING, can be charged with first degree murder. In other words, the entire team of bad guys, by their action to rob have provided sufficient evidence of the prong of first degree murder, intent, to elevate murder, to first degree murder.

The proper action for the DA is to file felony murder charges against the robbers, not the parent.

 

[Brian Pfleuger]

...when that other person has made an unlawful entry into the dwelling

The story is not completely clear if it was an actual home invasion or if they were there to buy drugs.


That's the kicker. If he invited them in and things went sour it's murder and attempted murder AND felony distribution.

 

[Stagger Lee]

Actually, if he hadn't been dealing drugs and possessing a firearm illegally (he's been charged with that too) the whole thing never would have happened. The guy is a piece of crap who needs to die in prison. He is just as responsible as the guys who tried to rip him off. So what if they were trying to rip him off? They were doing so because he was operating an ongoing criminal enterprise--distribution of narcotics.

"The running of any kind of drug-distribution operation involving guns and gang interaction would be subjecting a child to abuse," Silverman said. "He's not getting accused of pulling the trigger. He's accused of either allowing or creating an atmosphere that helped lead to this sad situation.

And they are charging the other four criminals too.

The downside is that the story just begs the legislature to revisit the "Make my Day" law.

 

[jrfoxx]

Well, since the law doesnt seem to have the usual "does not apply if you are in the process of committing a crime" exception, he may be covered in the death of any of the ROBBERS he shot, but since his daughter was NOT a threat to his life, his shooting of her wouldnt seem to be covered under the "make my day" law. She wasnt committing a crime that would allow him to shoot her, so his shooting her wouldnt be justified under any law. Dont see who the fact he shot her on accident would apply under the law as written either. It doesnt say that you are covered for people you shoot accidentally. I would be STUNNED if ANYONE fell for this weak attempt of a defense here, and suspect hes going to prison for manslaughter or some type of murder charge, as well as a selection of child abuse, endangerment, and drug laws.

I foresee a minimum 10 years in prison for this idiot, at the very least, with 15-25 being more likely, as I think they will be able to make a whole bunch of felonies stick at the trial. This loser is hosed, and rightfully so, regardless of one's opinion on the war on (some) drugs and the drug laws. He made his kid commit crimes, put her in danger, and then killed her. He deserves life in prison for that alone.

 

[Socrates]

This is why we have laws. He should be charged for the crimes he committed, not because of the outrage we feel.
At BEST, he could be charged with negligent manslaughter, NOT murder. The usual definition of murder is the 'intentional killing of another human being'.

How any one could stretch an accidential shooting of your own daughter, defending yourself against being murdered, to murder, is really beyond me...

What if this same fact pattern occurs, without the drugs, or, the guy being tried in the press, for prior bad acts and gang affiliations?

Leo Cisneros — who is charged with child abuse resulting in death — is asking a Denver district judge to dismiss the felony case.

OK: That's what he's charged with. Here's a summary of that law:

Specific examples of abuse or neglect, under Colorado State law include the following:
Physical Abuse: when there is evidence the child has experienced physical harm or injury by the parent or caretaker, or has been subjected to circumstances that could reasonably pose a serious threat of physical harm or injury.
Neglect of Basic Needs: when the parent or caretaker fails either deliberately or through inability, to take those actions necessary to provide a child with adequate food, clothing, shelter, or other essential care.
Educational Neglect: when the parent or caretaker either through action or omission, fails to provide for the child’s education and/or school attendance.
Abandonment: when the child has no parental support nor available alternate caretaker.
Medical Neglect: when the child requires medical treatment that the parent/ caretaker has not provided, and the failure to provide such care presents a substantial risk to the child.
Emotional Maltreatment: when the parent or caretaker’s acts or omissions have caused, or are likely to cause, identifiable and substantial impairment to the child’s psychological or intellectual capacity or functioning.
Lack of Supervision: when the child’s age and skill level would require parental supervision and could or did result in harm to the child.
Sexual Abuse: when a child has been subjected to sexual intercourse, sexual contact, including touching of the genitals, buttocks, or breasts. Sexual abuse also includes actions and behaviors when there is not physical contact, including but not limited to exhibitionism, sexual exploitation, and pornography.
Lack of Adequate Care: when the parent is unavailable to provide care due to incarceration or hospitalization and there is no alternate caretaker.

It appears that the prosecutor has a strong case for physical and emotional prongs of the statute, in this case.

 

[Socrates]

Parental Substance Abuse

Parental substance abuse is an element of the definition of child abuse or neglect in some States.9 Circumstances that are considered abuse or neglect in some States include:

* Prenatal exposure of a child to harm due to the mother's use of an illegal drug or other substance10
* Manufacture of a controlled substance in the presence of a child or on the premises occupied by a child11
* Allowing a child to be present where the chemicals or equipment for the manufacture of controlled substances are used or stored12
* Selling, distributing, or giving drugs or alcohol to a child13
* Use of a controlled substance by a caregiver that impairs the caregiver's ability to adequately care for the child14

They also have a strong case under the above part of the law.

Neglect
Citation: Rev. Stat. §§ 19-1-103; 19-3-102

Child abuse or neglect includes any case in which a child is a child in need of services because the child's parent has failed to provide adequate food, clothing, shelter, medical care, or supervision that a prudent parent would take.

A child is neglected or dependent if:

* A parent, guardian, or legal custodian has subjected the child to mistreatment or abuse or has allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring.
* The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian.
* The child's environment is injurious to his or her welfare.
* A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other necessary care.
* The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian.
* The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian.
* The child tests positive at birth for either a schedule-I or schedule-II controlled substance, unless the child tests positive for a schedule-II controlled substance as a result of the mother's lawful intake of such substance as prescribed.

Certainly guilty of the above, in bold.

For the rest of Colorado law:
http://www.childwelfare.gov/systemw...e/index.cfm?event=stateStatutes.processSearch

 

[44 AMP]

Leaving out the drug related activity...

As a homeowner, defending his life from attackers, and killing his daughter as a result of bad aim, (and depending on how his state defines the crime), guilt of manslaughter, but not murder.

Sure, guilty of the drug crimes, and as a result of them, child abuse as well, but, as relating to the shooting, manslaughter (negligent homicide or other equivalent term), but not murder (murder 1, premeditated murder, etc.) of th child.

So sad.

 

[divemedic]

Remember, a person was killed while the shooter was engaged in a felony (distribution of a controlled substance) which results in a murder charge in many states. That is the law. He was not defending his life as much as he was defending his drug stash. As much as I think drugs should be legal, they are not- and had he not been an illegal drug dealer, this would not have happened.

 

[Socrates]

But Denver prosecutors filed the felony charge against Cisneros because, they say, Cisneros was selling drugs out of the apartment, which prompted the deadly confrontation.

Is selling pot in Colorado a felony???
I thought mary jane was the state plant...no evidence they were engaged in selling anything that was a felony. If so, why weren't charges already filed.???

I see. We have conviction by appearance, past history, and enuendo> NONE are admissible in court...

 

[Danzig]

Actually, it is quite possible for the OTHER persons involved to be charged with the girl's murder.

During the commission of a felony, it is the perps, NOT the shooter, who are liable in the case of an unintentional death. For instance. Person "A' commits armed robbery against a gas station. The attendant, referred to as person "B" draws a legally owned firearm and inadvertently shoots another patron, person "C", of the gas station while trying to defend against person "A" There have been cases where person A was charged with the murder of person C even though person B actually fired the deadly shot.

This is because whoever initiates a felony crime is held responsible for all actions that occur as a result of their actions.

This in no way excuses the father as far as I am concerned..but the other individuals may face as much, or more, criminal liability as he does.

 

[TwoXForr]

I can see Felony-Murder charges against the guys entering the home. Manslaughter against the father also for the death of the girl, and probably a crap load of Child Abuse/Endangerment issues against the parents as well.

 

[hammer4nc]

Re: The OP.

Someone's missing the obvious conclusions?

1. This article means "make my day" laws should be repealed;

2. Gives all gun owners (esp. CCW's) a bad name;

3. Though not mentioned in the article, actor was probably a camo-wearing, militia member, who didn't volunteer.

Just sayin'...

 

[Erik]

Aargh... I lost a long post because of firewall issues. I hate when that happens.

Anyway, the father is facing a laundry list of felony charges, depending on the details that the investigation uncovers, and the prosecutor's take on those details. Just a few possibilitites:

18-18-407, Special Offender, two counts for (f) and (g), both class 2 felonies. The first for having available and using a weapon, to wit a firearm, and the second for soliciting, inducing, encouraging, intimidating, employing, hiring, or procuring a child, to wit his daughter, to act as his agent to assist in the unlawful distribution, manufacturing, dispensing, sale, or possession for the purposes of sale of any controlled substance in violation of section 18-18-405.

18-6-701, Contributing to the Delinquency of a Minor, a class 4 felony, for inducing, aiding, or encouraging his daughter to violate any federal or state law, municipal or county ordinance, or court order.

18-18-405, Unlawful Distribution, Manufacturing, Dispensing, Sale, or Possession of a Controlled Substance, a class... it depends on the amount, usually a felony.

18-18-406, Offenses Relating to Marijuana and Marijuana Concentrate... The father may have committed several felonies under this section, classes 4 and 5.

18-2-301, Criminal Solicitation, a class 5 felony, for commanding, inducing, entreating, or otherwise attempting to persuade his daughter to commit a felony, whether as principal or accomplice, with intent to promote or facilitate the commission of that crime, and under circumstances strongly corroborative of that intent.

18-2-101, Criminal Attempt (of 18-18-405 and 406 as appropriate), a class 5 felony, for engaging in conduct constituting a substantial step toward the commission of the offense.

18-3-105, Criminally Negligent Homicide, a class 5 felony, for causing the death of another person by conduct amounting to criminal negligence.

I'm sure there are more. That said, I wouldn't want to stake my defense on the "make my day" law as a defendant, or use this guy as an anti-2A advocate to attack the law.

 

[shortwave]

+1 Socrates and Danzig, and a good prosecutor will see to it.