Tulsa Law Review Volume 23 Issue 3 Spring 1988 Oklahoma's Make My Day Law Donna Smith Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Donna Smith, Oklahoma's Make My Day Law, 23 Tulsa L. J. 533 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol23/iss3/7 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Smith: Oklahoma's Make My Day Law RECENT DEVELOPMENT OKLAHOMA'S "MAKE MY DAY" LAW I. INTRODUCTION On April 30, 1987, Governor Henry Bellmon signed into law Oklahoma House Bill No. 15111 which contained the controversial "Make My Day" law.2 This new law expanded Oklahoman's right to use deadly force to protect their homes from intruders. In addition, the law provides immunity from civil liability.3 The law changed hundreds of years of self-defense in the home or defense of dwelling law in order to protect the sanctity of the home. Although Oklahoma's "Make My Day" law addresses both nondeadly and deadly force, the following dis- cussion of the law will be generally limited to the use of deadly force and, therefore, the defense of justifiable homicide. II. DEFENSE OF DWELLING-HISTORY AND DEVELOPMENT A cursory look at the development of self-defense and defense of dwelling law provides a background for examination of Oklahoma's pre- vious and present law in this area. The doctrines of self-defense and de- fense of dwelling have evolved over hundreds of years. An innocent person's right to defend himself from an unlawful attack is well estab- fished. The exact boundaries of this right to defend against an attack inside or outside the home, however, are not easily defined. The diffi- culty in defining the limits of self-defense and defense of dwelling reflects the innumerable fact patterns under which the issue can arise, as well as the confusing development of this area of the law.4 1. H. 1511, 41st Leg., 1987 Okla. Sess. Law Serv. 205 (West). 2. Id. The bill was nicknamed the "Make My Day" bill early in its history. See Okla. Legis- lative Reporter, March 20, 1987; 'Home is Castle'BilIFiled in Oklahoma Senate, NEw GUN WEEK, Feb. 27, 1987, p. 2. 3. H. 1511, 41st Leg., 1987 Okla. Sess. Law Serv. 205 (West). 4. See Brown v. United States, 256 U.S. 335 (1921). The Court stated that "historical mis- takes" may be part of the law of self-defense. Id. at 343. Published by TU Law Digital Commons, 1987 1 Tulsa Law Review, Vol. 23 [1987], Iss. 3, Art. 7 TULSA LAW JOURNAL [Vol. 23:533 A. Early English Law Under the early English law regarding use of deadly force in self- defense, the defender was justified in the use of deadly force only when committed in execution of the King's law.5 In other situations when an innocent person killed another in self-defense, the defender was convicted of homicide but was often automatically pardoned. 6 The early English law of self-defense included the requirement that the degree of force used by the defender could not be greater than the threat of the attacker as reasonably perceived by the defender.7 The early English law of self- defense further required that a defender was justified in using deadly force against an attacker only when he had retreated "to the wall."8 In 1532, England enacted a statute codifying the common law, but failed to address the duty to retreat.9 Perhaps because the statute was silent regarding the duty to retreat, confusion still reigned in this area. The English courts split in their application of the duty to retreat under the new statute. Some courts required an innocent victim to safely re- treat from a murderous attack, while others imposed no such duty.10 The law and the courts continued to require, however, that the amount of force used by the defender be proportionate to the force used by the attacker. I I Somewhat different rules developed with regard to use of deadly force to defend one's dwelling. In early England, the castle was seen as a sanctuary from danger. The protection it offered was jealously protected by the law.12 The duty to retreat was not imposed when the defender was warding off an assault upon the castle. 13 Early English law reflected 14 the high regard for the castle as a refuge. 5. Beale, Retreatfrom a MurderousAssault, 16 HARV. L. REV. 567, 567-68 (1903). 6. Id. at 568; W. WALSH, OUTLINES OF THE HISTORY OF ENGLISH AND AMERICAN LAW 373-74 (1923). 7. Comment, CriminalLaw-Lovers and Other Strangers: Or, When Is A House a Castle?- Privilege of Non-Retreat in the Home Held Inapplicableto Legal Co-Occupants--State V.Bobbitt, 415 So. 2d 724 (Fla. 1982), 11 FLA. ST. U. L. REv. 465, 467 (1983) [hereinafter Castle Doctrine]. 8. Comment, Dwelling Defense Law in Missouri: In Search of Castles, 50 UMKC L. REv. 64, 66 (1981) [hereinafter Dwelling Defense Law in Missouri]. 9. Id.; see also 2 F. POLLOCK & F. MAITLAND, HISTORY OF ENGLISH LAW 478-79 (1968). 10. Dwelling Defense Law in Missouri,supra note 7, at 66-67. 11. 3 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 12 (1883); 4 STEPHENS' COMMENTARIES ON THE LAWS OF ENGLAND 38 (W. Winder & L. Warmington eds. 1950). 12. See 4 W. BLACKSTONE, COMMENTARIES 223 (1898). In discussing the right of habitation, Blackstone stated that, "the law of England has so particular and tender a regard to the immunity of a man's house, that it styles it his castle, and will never suffer it to be violated with impunity ...... IdL 13. Castle Doctrine, supra note 7, at 467-68. 14. 5 Coke 91, 77 Eng. Rep. 194 (1604); see also Comment, Is a House a Castle?, 9 CONN. L. https://digitalcommons.law.utulsa.edu/tlr/vol23/iss3/7 2 Smith: Oklahoma's Make My Day Law 1988] "MAKE MY DAY'" LAW B. American law 1. Criminal liability for defense of dwelling American courts and legislatures adopted and codified the English law in the area of self-defense. The duty to retreat when threatened with a deadly assault was adopted by some states.15 Others adopted what came to be called the "true-man" rule holding that retreat was unneces- sary to justify homicide committed in self-defense.' 6 All states, however, adopted the rule that deadly force could be used only when the defender believed that death or serious bodily injury was threatened.17 Some jurisdictions held that the homicide was justified when that belief was honest, 18 while other jurisdictions required a rea- sonable belief.19 REv. 110, 114 (1976) (characterizing early English defense of habitation law as allowing deadly force to defend any intrusion on the home). The Semayne's Case stated: That the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose; and although the life of man is a thing pre- cious and favoured in law; so that although a man kills another in his defence, or kills one per infortun', without any intent, yet it is felony, and in such case he shall forfeit his goods and chattels, for the great regard which the law has to a man's life; but if thieves come to a man's house to rob him, or murder, and the owner of his servants kill any of the thieves in defence of himself and his house, it is not felony, and he shall lose nothing. Semayne's Case, 5 Coke 91, 77 Eng. Rep. 194, 195 (1604). The two classifications of homicide recognized in England are reflected in the court's language. For homicide in self-defense, the de- fendant was required to forfeit his goods. Homicide in defense of the home, however, was justified and the defendant lost nothing. For a discussion of homicide in self-defense and justifiable homicide, see Green, The Jury of the English Law of Homicid 1200-1600, 74 MICH. L. REv. 413, 428-44 (1976). 15. King v. State, 233 Ala. 198, 171 So. 254 (1936); State v. Donnelly, 69 Iowa 705, _, 27 N.W. 369, 370 (1886); State v. Cox, 138 Me. 151, -, 23 A.2d 634, 641-42 (1941); State v. Dettmer, 124 Mo. 426, _, 27 S.W. 1117, 1119 (1894); State v. Abbott, 36 N.J. 63, _, 174 A.2d 881, 884-86 (1961); State v. Jackson, 227 S.C. 271, -_, 87 S.E.2d 681, 685 (1955). An early Alabama court upheld jury instructions that embodied the rationale behind the duty to retreat. "'In the system [of self-defense] so established no balm or protection is provided for wounded pride or honor in declin- ing combat, or sense of shame in being denounced as cowardly. Such thoughts are trash, as com- pared with the inestimable right to live.'" Springfield v. State, 96 Ala. 81, _ I1 So. 250, 252 (1892). 16. Brown v. U.S., 256 U.S. 335, 342-43 (1921); People v. Hecker, 109 Cal. 451, -, 42 P. 307, 313 (1895); Enyart v. People, 67 Colo. 434, -, 180 P. 722, 723-24 (1919); Runyan v. State, 57 Ind. 80, 84 (1877); Burgess v.