Colorado's Supreme Court justices on Monday rejected a narrower reading of the state's arson law in favor of one that allows prosecutors to charge arsonists for each building destroyed, each person endangered and for the damaged property of each affected person.
The ruling upheld the 18 convictions of Christopher Magana, who set a single fire in Lakewood to his ex-girlfriend's car in April 2016. The blaze ended up spreading to another car and a duplex home, where 14 people were inside. Prosecutors charged Magana for all of the objects and people affected under the state's first-degree, second-degree and fourth-degree arson laws, which pertain to buildings, property and people, respectively.
The justices split, however, on the question of whether fire is a "deadly weapon" under the first-degree offense. The Supreme Court's majority decided it is not, while two dissenting members said a jury should decide that question case-by-case.
Although unmentioned in the court's decision, multiple justices during oral arguments in February referenced the destruction from the Marshall Fire, which tore through residential parts of Boulder County in December and ultimately destroyed more than 1,000 buildings. Justice Richard L. Gabriel asked the Colorado Attorney General's Office about the arson law's prohibition on the knowing destruction of "any building" or "any property of another."
"If 'any' is what you say it is," Gabriel observed, "then if you look at the Boulder fires recently, you can probably have 100,000 counts against someone. Every sock, every paperclip — that's a problem."
For now, the court's decision leaves open the ability of prosecutors to file a large number of criminal charges against any perpetrator. A spokesperson the Boulder County District Attorney's Office said it would "carefully consider this decision in determining the appropriate charges and number of counts in any arson case." The cause of the Marshall Fire is still under investigation.
Magana had challenged his Jefferson County convictions, asking the Supreme Court to find that 18 counts for a single fire was "too many." He argued the legislature had intended for the unit of prosecution to be each act of setting a fire, rather than each building, person or personal property affected by an arson. Under that reading of state law, Magana should have had three convictions: one for burning the duplex, one for burning the vehicles and one for endangering the occupants.
In October 2020, the state's Court of Appeals disagreed with Magana's interpretation. While the constitutional prohibition against double jeopardy governs whether there can be multiple punishments based on the same criminal conduct, the focus of the arson law is on the damage done, not the fires set.
"To put a sharper point on it, under Magana’s construction, if three different defendants each set a single fire, one burning three dwellings, another burning three cars, and the third endangering three people, each is subject to just a single felony," wrote Judge Craig R. Welling for the appellate court. "But, under that same interpretation, if a fourth defendant sets a single fire that burns a dwelling and a car and endangers one person, that defendant is subject to three felonies. An odd result, indeed."
The Court of Appeals also addressed an aspect of Magana's sentencing. Jurors had asked during their deliberations whether "fire itself" was a deadly weapon, which would prompt an enhanced sentence for Magana's first-degree arson convictions. District Court Judge Randall C. Arp responded that fire "can be," and the jury concluded Magana had, in fact, used a deadly weapon.
However, Arp declined to impose the enhanced sentence, which would have resulted in 10 to 32 years' imprisonment, compared with four to 12 years without the enhancement. Arp reasoned that if fire were a deadly weapon, every first-degree arson would be a crime of violence. The Court of Appeals countered that the General Assembly had not excluded fire as a deadly weapon, and therefore Arp was bound by the jury's findings.
On appeal to the Supreme Court, the attorney general's office told the justices that not every arson would qualify as a violent crime because some fires are "ineffective" or do not fully ignite.
The Supreme Court's majority upheld in part the Court of Appeals decision. It agreed the legislature had criminalized the damage to "any" building and "any" property or the endangerment of "another" person, which left no support for Magana's argument that the number of fires matters more than the damage done.
"The legislature’s focus on the victimization 'of another' in the arson statutes correlates the unit of prosecution to the impact of the defendant’s actions, rather than the defendant’s actions themselves," wrote Justice William W. Hood III in the June 13 opinion.
In answering whether Magana should have received an enhanced sentence for using fire as a deadly weapon, the majority evaluated whether the fire was used or intended to be used as a weapon and whether it was capable of causing serious bodily injury. A first-degree arson conviction, Hood wrote, necessarily means a defendant weaponized fire for purposes of destruction.
"Thus, fire poses an inherent risk that is not present with other instruments that we classify as deadly weapons only on an ad hoc basis, such as motor vehicles," he elaborated. Because the legislature did not indicate fire is a deadly weapon in arsons, the court's majority concluded that fire alone could not enhance Magana's sentence.
Chief Justice Brian D. Boatright complained in dissent that the court's majority had ruled out fire as a deadly weapon in arson crimes, while simultaneously finding fire to be the literal definition of a deadly weapon.
"Simply put, this question is a factual one for the jury, not one that the majority can decide in one fell swoop," he wrote for himself and Justice Maria E. Berkenkotter.
Boatright raised the example of an arsonist who sets fire to a part of her ex-boyfriend's remote cabin, with the fire extinguishing itself before it can spread. In his view, the fire would not be a deadly weapon and, therefore, the arsonist would not be convicted of a crime of violence.
"If the majority is correct that first degree arson by fire would always be a COV, then it must always be a COV — no exceptions," wrote Boatright. "As this illustration reveals, however, fire (even in the realm of first degree arson) is not always a deadly weapon."
The case is Magana v. People.
Editor's note: This story has been updated with a statement from the Boulder County District Attorney's Office.