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Colorado’s “Make My Day” Law No Longer Applies to Prisoners

by David Reutter

On the heels of the dismissal of murder charges against two Sterling Correctional Facility (SCF) prisoners under the state’s “Make My Day” law, lawmakers quickly rolled back the self-protection statute’s applicability to prisoners.

Prosecutors charged SCF prisoners Antero Alainz and Aaron Bernal with second-degree murder in the 2011 death of prisoner Cleveland Flood, who was classified as a habitual offender and serving a 48-year sentence on a burglary charge.

In December 2014, a Colorado judge dismissed murder charges against Alainz, and Bernal was cleared of any criminal wrongdoing in the killing of Flood in July 2015. The courts cited the state’s “Make My Day” law in both cases. [See: PLN, June 2016, p.63; Dec. 2015, p.63].

According to Alainz, Flood entered the cell he shared with Bernal uninvited while armed with a shank, and Alainz claimed that he and Bernal had acted in self-defense. An autopsy found Flood had 90 stab wounds all over his body.

Under Colorado’s “Make My Day” law, enacted in 1985, any “occupant of a dwelling” may use “any degree of physical force” against a person who breaks into the dwelling and poses a threat, no matter how slight, to the dwelling’s residents.

“We really had no belief that a court would find in any way that a prison cell was a dwelling,” said Logan County District Attorney Brittny Lewton, who indicated the dismissal of the murder charges against Alainz and Bernal would be appealed. “I think [the ruling] could limit how the Department of Corrections is able to run a safe facility.”

However, not everyone disagreed with the outcome in the Alainz and Bernal prosecutions.

“A prison is in fact a dwelling for several thousand people,” said former Colorado lawmaker Jim Brandon, one of the original sponsors of the “Make My Day” legislation. “[Alaniz’s] prison cell is ‘his home’ and had the individual who is now deceased not crossed his threshold, [Alainz] wouldn’t have had any right to take the action that he did.”

Nevertheless, in April 2016, Colorado Governor John Hickenlooper signed into law modifications of the “Make My Day” statute that barred application of the law to a prison setting.

State prosecutors had lobbied in favor of the modification, citing prison safety and operational concerns – particularly concerns that prisoners could assault guards who enter their cells and be absolved under the “Make My Day” law.


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