- The Washington Times - Monday, February 2, 2009

COLORADO SPRINGS

Sean Kennedy, a 22-year-old golf pro, drunkenly banged on the door, yelled obscenities and smashed a window as he tried to enter what he thought was his house.

But it wasn’t his home. The house, located a block from Mr. Kennedy’s residence, but showing the same house number, belonged to James Parsons. As Mr. Kennedy reached his arm through the broken window in an effort to unlock the back door, Mr. Parsons, who was inside with his girlfriend, shot and killed him.

Colorado Springs prosecutors last week exonerated Mr. Parsons, saying that he acted within the scope of the state’s “Make My Day” law, which allows homeowners to use deadly force against intruders.

“A reasonable person in those circumstances would have believed that [Mr. Kennedy] was going to do a crime against them or their property,” District Attorney Dan May said.

Nonetheless, the decision reignited debate over whether such laws allow homeowners to use more force than necessary in their defense. Critics argue that the laws, which have proliferated in recent years, have essentially given homeowners a license to kill.

“What’s happening among gun owners is that there’s less accountability and less responsibility,” said Scott Vogel, spokesman for the Freedom States Alliance in Chicago, which opposes the “Make My Day” laws. “Gun owners are taking these laws and drawing their own conclusions and using them as a ‘get out of jail free’ card.”

The debate is likely to intensify as more states adopt and expand such statutes. Since 1985, 16 states have approved “Make My Day” statutes - known to critics as “Shoot to Kill” laws - with more legislation expected this year, said Sam Hoover, staff attorney for the Legal Community Against Violence in San Francisco.

Besides Colorado, the 15 other states are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Michigan, Mississippi, Missouri, Oklahoma, South Carolina and South Dakota, Mr. Hoover said.

Even in states that have approved such laws, however, deciding whether the statute applies can be tricky. Colorado Springs prosecutors wrestled with the case for a month before deciding against filing charges in the Dec. 28 shooting.

About 10 p.m., Mr. Kennedy, who had been drinking at a Denver Broncos football party with friends, drove up in his truck to the house at 3212 Virginia Ave. and tried to enter. Police say he was looking for a house he shared with roommates at 3212 N. Institute St., located a block away. His blood alcohol level was later tested at 0.26, more than three times the legal limit of 0.08 for driving in Colorado.

When Mr. Parsons and his girlfriend heard the pounding at the door, they called 911 and pleaded for help. Mr. Parsons’ girlfriend stayed on the phone for about 4 1/2 minutes, during which time the shots were fired.

“Oh, my God, he’s coming in the back door,” said the woman, who was not identified, during the call. “Are they on their way because - oh my God, he broke in the glass!”

At that point, Mr. Kennedy had walked around the house and broken a window next to the back door. He was reaching through the broken glass to unlock the dead bolt when Mr. Parsons fired three shots through the window with a .38 Special.

“Get the ambulance! I shot him,” Mr. Parsons said in the background. “He broke his arm in the window, and he was coming in the house!”

Mr. May said the panicky call and efforts by the homeowners to deter Mr. Kennedy - they shouted for him to leave several times - offered proof that they were in fear for their safety.

The Colorado law states that “citizens of Colorado have a right to expect absolute safety within their own homes,” and that lethal force may be used against someone who illegally enters a dwelling with the intent to commit a crime or use physical force against the occupant.

“The evidence from the dispatch tape and from investigative interviews indicated that they were both terrified during this incident and were traumatized by these events,” said Mr. May in a statement.

One point of contention was whether Mr. Kennedy could be considered an intruder, since he never actually entered the home. Prosecutors said that having his arm inside the house constituted breaking and entering.

“It doesn’t have to be the entire body. His arm was in the house,” Deputy District Attorney Gail Warkentin said. “Breaking and entering might have been breaking the lock on the screen door - it could be as little as that - but certainly after he had his arm in the house.”

Mr. Kennedy’s family remains distraught over the shooting, she said. After graduating from high school in 2004, Mr. Kennedy had worked as a golf pro at two Colorado Springs golf clubs.

“I spoke to Sean’s father, and he’s obviously grieving for his son. He told me he wished the homeowner had shown more restraint,” Ms. Warkentin said. “He said his son didn’t deserve to die.”

Critics called the Kennedy case a classic example of a fatality that could have been avoided if the homeowner had taken evasive action - for example, leaving the house through the front door - but having a “Make My Day” law on the books makes it less likely that homeowners will do so.

“There’s every indication that this gun owner could have shouted at this guy, yelled at him,” Mr. Vogel said. “Instead, even though he hadn’t been harmed, he just shot him. You didn’t sense that he and his girlfriend were in immediate peril, and that used to be the standard.”

Dudley Brown, president of Rocky Mountain Gun Owners, said the couple couldn’t have known how violent Mr. Kennedy was, or whether he was armed.

“There’s no such thing as ‘shoot to wound.’ That’s only in movies,” said Mr. Brown, a certified firearms instructor. “They made their best effort to let law enforcement deal with it, but here’s a news flash for liberals: The police can’t always be there when you’re in trouble.”

Despite the debate, “Make My Day” laws remain popular with state legislatures, with new bills introduced every year to implement or expand such laws.

In Colorado, a legislative committee last week heard testimony on behalf of a bill known as “Make My Day Better,” which would extend the law to include businesses. But the bill was killed in committee on a straight party-line vote, with Democrats voting against and Republicans voting in favor.