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No “Make-My-Day” Immunity for Colorado Woman Who Killed Estranged Boyfriend

No “Make-My-Day” Immunity for Colorado Woman Who Killed Estranged Boyfriend

A Colorado judge denied immunity under the state’s “Make My Day” law to a woman charged with 1st degree murder. The defendant, Marla Abling, has been charged with first degree murder for the strangulation killing of her estranged boyfriend, Rory Alba.

The couple had a history of alleged domestic violence, and Abling had obtained a temporary restraining order that forbid Alba from going to Abling’s apartment. Despite this, Alba was in Abling’s apartment when she killed him.

CO’s “Make-My-Day” Statute Allows Deadly Defensive Force Against Intruders

Abling made a pre-trial motion for immunity from criminal prosecution under Colorado’s “Make-My-Day” law. In relevant part, §18-1-704.5 “Use of deadly physical force against an intruder” authorizes the use of deadly force, and provides both criminal and civil immunity for such use of force, even against a person who does not present an imminent threat of death or grave bodily harm if all of the following conditions are met:

(1) The person using the deadly defensive force is the occupant of a dwelling at the time, AND
(2) The person against whom the deadly defensive force is used has made an unlawful entry into the dwelling, AND
(3) The occupant has a reasonable belief that the other person has committed a crime in the dwelling (in addition to the uninvited entry) OR the other person is committing or intends to commit a crime (in addition to the uninvited entry) AND
(4) The occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

Abling argued that she meets the conditions of the “Make-My-Day” law because (1) she was the occupant of the dwelling; (2) Alba’s entry into the dwelling was unlawful because of the presence of the temporary restraining order; (3) based on his prior conduct she had a reasonable belief that he intended to commit a crime in addition to the unlawful entry; and (4) for similar reasons she had a reasonable belief that he might use physical force against her.

Abling’s Immunity Claim Fails After Six Days of Hearings

Unfortunately for Abling, however, over the course of six days of testimony on the immunity motion, the prosecution presented evidence that convinced the judge that Abling’s conduct did not fall within the scope of the “Make-My-Day” statute.

There was evidence that Alba may have been invited to the apartment by Abling, rather than being an intruder. Phone records indicated ongoing and mutual communication between Alba and Abling, and the two had also been seeing together around town, despite the prohibitions against this by the restraining order.

Further, Alba’s keys were found hanging neatly on the key hook by the front door. It also appeared that Alba spent hours at the apartment with Abling before he was killed, and that the two may have engaged in consensual sex during that time. All of this seems behavior more consistent with that of an invited (and welcome) guest than of an unwanted intruder.

Most damning, however, was the prosecution witness that testified to overhearing Abling at a hair salon days before Alba’s death talking about ways to kill him. Oops.

Intriguingly, news reports also indicate that Alba may not have been the first man to die of other than natural causes in Abling’s apartment.

Finally, while I have seen a great many items used as defensive weapons in my years as a defensive trainer and in my legal work in the law of self-defense, the claimed necessity to kill an attacker by means of strangulation via electrical cord is certainly novel to my experience.

The motion for immunity from prosecution having been denied, Abling will now proceed to trial on her first degree murder charge. In the meantime, she remains in jail, held on $150,000 bond.

Marla Abling, held on $150,000 bail and awaiting first degree murder trial.

Marla Abling, held on $150,000 bail and awaiting trial on charge of first degree murder.

Varying Approaches to the Use of Deadly Defensive Force Against Non-Deadly Threats

That’s it for the news part of this post, so if that’s the extent of your interest feel free to stop right here. The rest is some off-the-cuff commentary on Colorado’s rather unique “Make-My-Day” statute, which might be of interest to some of the law of self-defense geeks among us.

In general, deadly force in self-defense can be used to prevent an imminent threat of death and grave bodily harm. Some states expand the right to use deadly defensive force to include imminent threats of certain specified “forcible felonies”–such as robbery or sexual assault–that generally involve a meaningful risk of death or grave bodily harm.

To my knowledge, however, only Colorado lowers the threshold of the attacking force necessary to justify a deadly-force response to the level of “any physical force, no matter how slight.” Further, the level of confidence with which the defender must believe this attack, however slight, will occur is also extremely low–he must merely believe that the intruder “might” use such minimal force. (Interestingly, Texas’ §9.42 “Use of force in crime prevention” allows the use of deadly force against not just a non-deadly threat, but against no threat whatever–if its numerous conditions are met.)

Legal Presumptions of Reasonableness: The More Common Approach to Intruders

Many states have statutes that seek to provide legal protection for persons in their home who use deadly force against an intruder. South Carolina’s §16-11-440. “Presumption of reasonable fear of imminent peril when using deadly force against another unlawfully entering residence, occupied vehicle or place of business,” is fairly representative of such statutes. It provides, in relevant part that:

“a person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:
(1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and
(2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.”

(FYI, Florida has an essentially identical legal presumption statute, §776.013 “Home protection; use of deadly force; presumption of fear of death or great bodily harm”, as do many other states.)

It is interesting to note a couple of important differences between the Colorado “Make-My-Day” statute from the more common approach illustrated by the South Carolina statute.

Legal Presumptions of Reasonableness Can Be Rebutted by Preponderance of the Evidence

The first major difference between the South Carolina approach and that of Colorado is that the former creates merely a legal presumption of reasonable fear. Any such legal presumption is rebuttable by the prosecutors if they can disprove the presumption by a preponderance of the evidence. (Indeed, to win on this element of self-defense the state must disprove it beyond a reasonable doubt, a vastly higher standard than a preponderance of the evidence–except in Ohio, of course.) The Colorado statute, in contrast, does not merely provide a rebuttable presumption of reasonableness if the statute’s conditions are met, but rather bestows complete justification.

“Forcible Entry” versus “Unlawful Entry”

The second major difference is that the South Carolina approach requires evidence that the intruder’s entry be “forcible,” whereas the Colorado statute merely requires that the entry be “unlawful”. This difference means that a person who, as in the Abling case, peaceably enters a dwelling contrary to a temporary restraining order may fall within the scope of the Colorado statute, but would not fall within the scope of the South Carolina statute. It also means, of course, that the South Carolina law would not apply to a person who was induced into an unlawful entry, as appears to have been the case in the killing of Alba.

Mea Culpa, Mea Culpa, Mea Culpa

In closing, I’ll note that I’ve been remiss in my contributions to Legal Insurrection on the law of self defense front. The cause has been a combination of other tasks dominating my time and a relative paucity of eye catching self-defense news. I’ll seek to do better moving forward. 🙂

–Andrew, @LawSelfDefense

Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.  In addition to the book, Andrew also conducts Law of Self Defense Seminars all around the country, with upcoming seminars scheduled Atlanta GA (11/16), and Epping NH (11/24, at the SigSauer Academy, where Andrew is a Guest Instructor). Click here for reviews of recently completed seminars in Ohio, Virginia, Florida, South Carolina, and elsewhere.  You can follow Andrew on Twitter at @LawSelfDefense, on Facebook, and at his blog, The Law of Self Defense.


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Subotai Bahadur | October 25, 2013 at 7:36 pm

Just in passing, I will note that the picture of Alba shows him in the uniform of a prisoner in the Colorado Department of Corrections; so he was a convicted felon. While it does not justify his murder, it mitigates my concern over it quite a bit.

Second, the terms of Colorado’s Make My Day law were based on a series of legal decisions by Democrat District Attorneys and Judges that functionally gave an intruder into your home far more legal safety than the resident. Coloradans got tired of it. We don’t take kindly to criminals being given priority over the law abiding. It is a lesson we have to learn every so often, because every time Colorado Democrats gain power as governor or in the legislature, they try to do that.

Subotai Bahadur

    Serials killers have been known to select prostitutes and homosexuals, for example, because good citizens are less concerned about their deaths. I would offer, however, some very good advice from a famous rabbi:

    “Whatsoever you do to the least of my brothers, that you do unto Me.”

    I’m glad the prosecutors are paying attention to this case.

This is a good time of the year to ride.

Indeed, it is a good time of year to ride. I’ve been riding into Boston several times a week, to the marvelous Social Law LIbrary–lovely riding. Cool weather, easy parking (if you know the “secret spots”). Just wonderful.

–Andrew, @LawSelfDefense

[…] as if she overplayed her hand… Self-Defense | Immunity | Colorado | Make My Day law Reply With […]

Always interested in MMD cases. Haven”t followed them that closely over the last couple of years, but was there when they passed the law, and hope to be back for the winter. We shall see.

The list of horribles predicted by all the opponents failed to materialize. The quesitonable case during the earrly yearrs was somewhat similar to this one – it wasn’t a question really of a forceable entry, but rather permission to be in the house having been supposedly revoked. That guy walked on this charge, but, I think ultimately was convicted of another murder. He claims to have allowed the victim into his house, then later revoked that permission, telling him to leave. The victim didnt, or didnt do it fast enough, and was shot and killed. That is really the big problem that I see with this law – that someone can invite someone into their home, then later tell them to leave, and if they don’t, shoot them. Pretty much all the other early cases were fairly straight forward – for example, someone breaks in and gets shot. That may not appeal to everyone, but everyone knows the rules, and if they then put themselves within the reach of the law by breaking into someone’s home, I consder it to be assumption of the risk in Colorado.

Looking at the size of him compared to her, the death by strangulation was suspect on its face. The only way she could have strangled him was by sneaking up behind him and looping the electric cord; or by waiting until he was asleep, straddling him, and then looping the cord. Either way, it’s murder.

Mr. Branca,

You noted that South Carolina’s law requires entry to be “forcible” and you contrast that with Colorado’s merely requiring entry to be “unlawful.”

However I wonder if that is really a big difference in practice.

In Texas, the parallel to the South Carolina and Colorado laws on intruders in your home is Texas Penal Code 9.31. Among other requirements, it presumes a homeowner’s use of deadly force is justified if the intruder enters or attempts to enter “unlawfully and with force.”

It does not have to be much “force,” however. At the time this law was enacted, there was concern in the legislature about what this really meant. The legal eagles present assured the legislators that “force” could be as little as pushing open a door or opening a window — it didn’t require overcoming locks, splintering doors, or breaking glass (although all those things would be helpful explaining to the police what happened).

From reading up on this, it seems this is a pretty common interpretation of “force” across the country — at least in Free America — when it comes to intruders and habitations.

    How much force is required for an entry to be “forcible” will vary by state, as you note.

    It seems clear, however, that at least some states have in mind an intruder as someone “breaching” the home’s “defenses”, as opposed to someone, like a neighbor’s out of town guest, who accidentally walks into the wrong (identical appearing) condo. The out of town guest’s entry into the wrong condo is unlawful–he has no right to enter–but not what most would consider forcible in the sense of a home invasion, burglary, or some other entry with evil intent.

    –Andrew, @LawSelfDefense

    Bruce Hayden in reply to EricIT. | October 26, 2013 at 8:05 am

    One big difference, as I point out above, is where permission is revoked, and the victim is asked to leave. Entry was legal and without force, but remaining is not. In CO, that has worked at least once (but really didn’t here, due to other evidence). Presumably won’t work elsewhere.

      An invited guest who is asked to leave and refuses to comply becomes a simple trespasser, and reasonable force (almost always non-deadly) may be used to remove a simple trespasser, but that doesn’t mean he committed an “unlawful entry” and would fall within the scope of a Make-My-Day or “presumption of reasonableness” statute that is conditioned on such an unlawful entry. To the contrary, his entry was lawful.

      –Andrew, @LawSelfDefense

Phillep Harding | October 28, 2013 at 6:34 pm

She was able to gain sufficient control of him to strangle him, but not toss him out the door?