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Law of Self Defense: Prosecutors Again Test Colorado’s “Make My Day” Law

Law of Self Defense: Prosecutors Again Test Colorado’s “Make My Day” Law

Does “Make My Day” law apply to the common space of an apartment building?

A prosecutor in Colorado Springs is going to once again test the legal boundaries of Colorado’s “make-my-day” statute, which came into law in 1986.

The “Make My Day” law, properly §18-1-704.5. Use of deadly physical force against an intruder, has several substantive sections:  one relaxes the proportionality requirement when dealing with a home intruder under certain circumstances.  Two others provide for criminal and civil immunity under those same circumstances.

Special Provisions Defending Highly Defensible Property

As a general rule, deadly defensive force normally requires a deadly force threat. Many states have special provisions that legally presume a defender is facing an imminent deadly force threat when facing an intruder in highly-defensible property, such as one’s home.

In effect, this presumption gives the defender three of the five elements required to justify deadly defensive force; the Castle Doctrine grants a fourth element.  Thus the defender has been handed four of the five elements needed to justify a use of deadly defensive force.

Note that these legal presumptions of reasonableness do not eliminate the requirement of a deadly force threat–they presume that the requirement has been met. That presumption can still be countered by evidence showing otherwise.

Colorado’s Unusual Approach: “Make-My-Day”

Colorado takes a different approach. The state entirely eliminates the proportionality requirement, if the conditions of the law are met. This is not a presumption that can be overcome. They are getting rid of the requirement entirely.

Paragraph (2) of the “make-my-day,” statute sets out the special conditions for “make-my-day”: (1) an unlawful entry by an intruder, (2) a reasonable belief by the defender that the intruder is going to commit some additional crime in addition to the entry; (3) and a reasonable belief by the defender that intruder may use even non-deadly force against someone.

So, under the conditions of the “make-my-day” law, even non-deadly force can justify a deadly response.

Paragraph (3) in the “make-my-day” statute provides that if the conditions of paragraph (2), above, are met, the defender is entitled to immunity from criminal prosecution. Paragraph (4) does the same for immunity from civil suit.

Does “Make-My-Day” Apply to Common Space in Apartment Building?

Last year the boundaries of the “make my day” law were tested at trial, where a detached garage was found to count as “make-my-day” applicable property. Now, in this most recent case, reported on by a local Colorado newspaper, the question is whether the law applies to the common space basement of an apartment building.

In this case, a resident of an apartment complex, Patrick Rau, rightfully suspected there was an intruder in the basement of his building. There had been repeated difficulties with homeless people unlawfully entering the building, and he saw an exterior door into the basement ajar.  Equipping himself with a headlamp and a handgun, Rau entered the basement and confronted the intruder.

Then the facts get complicated. Rau claims that the intruder started acting crazy and throwing objects at him, which would certainly qualify as force “no matter how slight.”

There is also evidence that Rau gave the intruder a verbal countdown–“5, 4, 3, 2, 1” before shooting him, suggesting that he did not genuinely believe he was facing a serious threat.  Certainly such conduct is not obviously consistent with necessary self-defense, and it was likely this conduct that led a grand jury to indict Rau for manslaughter.

Rau then sought immunity under “make-my-day,” by convincing the hearing judge by a preponderance of the evidence that he meets the conditions of paragraph (2).  Fortunately for Rau, the hearing judge decided in his favor, and Rau has been granted immunity.

Unfortunately for Rau, Colorado law allows prosecutors to appeal a grant of immunity under “make-my-day,” and in this case the prosecutor has chosen to do so, to a Colorado mid-level court of appeals. (Interestingly, a defendant does not have the right to appeal a denial of immunity.)

Prior Court of Appeals Ruling Says No “Make-My-Day” In Common Spaces

Also unfortunately for Rau there is existing Colorado case law that restricts the application of “make-my-day” from applying to common areas in an apartment building on the basis that such common areas do not count as a defender’s dwelling from which he has a right to deny others access. That would certainly apply the common area of the basement where this shooting took place. See People v. Cushinberry, 855 P.2d 18 (CO Ct. App. 1992).

Note that Cushinberry is a decision by a mid-level court of appeals, and one in a different district than the one that will hear this appeal. It’s possible for two such courts to come to different conclusions–in which case the next likely step would be for the Colorado Supreme Court to hear the matter and make a definitive ruling.

Fair Warning: Don’t Make Yourself Look Like a Test Case

So, fair warning: do your best to stay well within the legal boundaries of use-of-force law. When you skirt the edges not only do you take on more legal risk than necessary, you might just incentivize an intellectually curious prosecutor to make you a test case.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Learn more about self-defense law from Attorney Andrew F. Branca and Law of Self Defense LLC by visiting the Law of Self Defense Patreon page for both free and paid-access content, and by viewing his free weekly Law of Self Defense Show.

[Featured image is a screen-capture from the 1983 Clint Eastwood movie “Sudden Impact.”]

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Comments

I am looking forward to your comments on the Botham Shem Jean shooting.

If I were assessing this case, I would say no, the common areas are not covered. Though part of my reasoning comes from the question of how can you be sure that the individual is an intruder and not, say, a guest of another resident of the complex. It would be reasonable to me to revert to standard self defense conditions in common areas, as you do not have an expectation of exclusive control over who accesses them.

A phone call for police to investigate is all it takes. Sounds like a trespassing case.

Perhaps if the defendant was not actively looking for an intruder, the Police will come and do that if you call them. The common space dosen’t sound like he had to enter it to access his living space. Don’t think this will hold up, or should hold up. Looks like he was trying to find a reason to do something, when he really didn’t have to.

    I tend to agree that “common spaces” wouldn’t qualify, and Mr Rau is likely in a heap o’ trouble.

    With that out of the way, I have to disagree with the idea of “call the cops” to some degree. Not from an as-is legal matter, but a moral one. (And most of the arguments for it, here, are about legal risk-shifting.)

    Why should a police officer be allowed to investigate potential danger and a non-police citizen not? What’s the added training, skills, or knowledge a police officer has that prevents him from shooting an innocent that the non-LEO does not have (or cannot obtain)? I don’t think you can claim that the police (overall) have a better track record than your average citizen (at shooting/harming non-bad guys).

    “…the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”
    Peelian Principles

When you have to shoot, shoot! Don’t talk! (Eli Wallach)

    JusticeDelivered in reply to txvet2. | September 14, 2018 at 12:31 pm

    If you are dealing with a situation where someone really needs to be neutralized, a countdown is likely to get you killed. No matter how you look at this, it is never smart to give up the advantage of surprise. And if someone has time to do a countdown, then it does not seem that the threat rise to the level it merits shooting them. I think this guy is headed to jail.

      JusticeDelivered in reply to JusticeDelivered. | September 14, 2018 at 12:41 pm

      I think I have figured out the cause of double postings, I inadvertently pushed submit two times quickly. The software apparently does not catch a duplicate post if happens at the the instant a post is being processed.

    JusticeDelivered in reply to txvet2. | September 14, 2018 at 12:31 pm

    If you are dealing with a situation where someone really needs to be neutralized, a countdown is likely to get you killed. No matter how you look at this, it is never smart to give up the advantage of surprise. And if someone has time to do a countdown, then it does not seem that the threat rise to the level it merits shooting them. I think this guy is headed to jail.

Please define “non-deadly force.”

Any force, if properly and/or repeatedly applied is (or can be) deadly force. The trouble is, you have to be part way through a beat-down with some types of force (as was GZ) before you (may) realize that you’re actually facing a lethal threat. You may even be lucky enough to still be conscious.

If you’re too late in recognizing the threat posed by an unarmed (which is not to say “weaponless”) attacker, you could end up ded (d-e-d, ded – tip o’ the hat to Buddy Cianci) due to your assailant’s proper and/or repeated application of “non-deadly” force.

    tom_swift in reply to DaveGinOly. | September 13, 2018 at 10:27 pm

    That would probably be where the “Reasonableness” requirement comes in.

    Are you STILL strumming this one string guitar?

    Non-deadly force is any initial application of force which is unlikely to cause death or great bodily harm during its initial application. A single shot from a firearm is very likely to cause death or great bodily harm. A single stab or slash from an edged weapon is very likely to cause great bodily harm or death. The initial strike from a hammer, a crowbar, a baseball bat, etc. is very likely to cause death or great bodily harm. Punching someone is not very likely to cause death or great bodily harm to another.

    Now, can a none deadly instrument cause death or great bodily harm? Sure, if it applied properly or the victim is unlucky. Training and experience can make this a likely occurrence, hence the old myth about a boxer’s hands being registered as deadly weapons. But, the law requires that a reasonable man, acting upon his knowledge at the time, would reasonably assume that an attack using a specific instrument would likely cause great bodily harm or death, unless deadly force was used to stop it. Facing a gun, knife, sword, hammer, baseball bat or crowbar would satisfy the requirement that a man would reasonably believe that being struck by any of these instruments would result in death or great bodily harm. A hand, however, can not be reasonably believed to be likely to cause such damage. If it was, spanking your child would constitute aggravated battery with a deadly weapon. Defending yourself by pushing an attacker away would constitute a use of deadly force, and if the other person was not using deadly force or a deadly weapon, then you would be looking at being arrested, tried and convicted for aggravated battery.

      tom_swift in reply to Mac45. | September 13, 2018 at 11:59 pm

      Are you STILL strumming this one string guitar?

      That’s your instrument. It’s the only one you play. The tune is getting monotonous.

        tom_swift in reply to tom_swift. | September 14, 2018 at 12:02 am

        Sorry, never mind. Ill-considered rudeness is something I try to avoid.

          JusticeDelivered in reply to tom_swift. | September 14, 2018 at 2:19 pm

          Ill considered rudeness seemed to be Rags stock and trade. I gather that he left mad, taking his marbles to a new sandbox.

        I have explained the legal definition of deadly force and deadly weapon as well as explained the legal justification for NOT designating hands, feet and fists deadly weapons. And still you keep bringing this up. Give it a rest. The rest of the world does not rest on YOUR misguided desires.

        I realize that you are attempting to justify the use of deadly force in any self defense situation, but the law does not allow that. So, I suggest that you train to defend yourself with your hands and feet or run away, if a fist fight is developing.

          iconotastic in reply to Mac45. | September 14, 2018 at 12:46 pm

          Are there exceptions for, say, seniors? I recall an incident in my city where a 30-ish man punched a 60 year old who subsequently died. Or a punch from a large 200+lb man striking a small woman?

          Mac45 in reply to Mac45. | September 14, 2018 at 5:40 pm

          “Are there exceptions for, say, seniors? I recall an incident in my city where a 30-ish man punched a 60 year old who subsequently died. Or a punch from a large 200+lb man striking a small woman?”

          Yes. This is known as disparity of force. If an obvious disparity of force exists between two people, with the victim being significantly weaker, then it can be argued that the victim was lawfully entitled to use deadly force even if the attacker is unarmed. The reason for this is that deadly force can be used when the initial attack is likely to result in great bodily harm or death, unless deadly force is used to prevent it. The problem here is that there usually has to be a clear, actual disparity of force at the time of the attack.

          Now, seniors, as victims, becomes even murkier in the states which allow deadly force to be used to defend against a violent felony and where state statutes make it a violent felony to physically attack a person over a certain age. Say both attacker and victim are of similar age and physical condition. No disparity of force exists, but the initial victim would be able to us deadly force lawfully, simply because his age makes attacking him, by any means, a violent felony.

          The danger in attempting to prove that a disparity of force, sufficient to allow the use of deadly force in self defense, can be tricky, depending upon the appearance of the people involved, at the time of the attack.

A couple of things here.

First, the use of force law, in Colorado, would not apply to the common areas of an apartment complex, because the tenants do not have any legal control over those areas. The ownership or management would, but not the individual tenants. The way the law is written, it is limited to residential property over which a person has direct control and in which he resides. And, there are several very good, sensible reasons for this.

Second, the state would have the right of appeal in a pretrial immunity hearing because, a grant of immunity to the defendant effectively stops the prosecution and acquits the defendant. If the judge makes a mistake, in his decision, the state must be able to appeal that decision. If the defendant loses the immunity hearing, he can still go to a jury trial and present the same evidence to legally justify his actions.

Look, I keep harping upon the need for people to learn the use of force laws in their state and to apply them in the narrowest possible manner. Use of force laws are based upon the wording of the statutes involved, not on a person’s belief of what they allow or his desire as to what they should allow.

Voice_of_Reason | September 14, 2018 at 9:30 am

Was the basement of the apartment building where the tenants had storage spaces? It’s pretty common. Would those storage spaces be considered part of the tenant’s residence?

Still, I think calling the cops would have been better in that situation than investigating yourself, and if you’ did investigate and found an intruder in the common area of an apartment building , leaving the area if safely possble and calling the cops is better than shooting someone and going to court.

“There is also evidence that Rau gave the intruder a verbal countdown–“5, 4, 3, 2, 1” before shooting him, suggesting that he did not genuinely believe he was facing a serious threat. ”

Or maybe he’s like most decent folks who really hope they don’t have to shoot anyone and will give them every chance to give up before pulling the trigger. Your statement indicates that mercy is a mistake. Was that your intention?

      Let me ask a similar question, then, if I may:
      What makes the countdown problematic for a legal defense? And how much so?

      I can see a couple of arguments that would turn that into a positive for the shooter. (I understand the basics of why it’s a problem, too – like warning shots.) Do you consider it to be an absolute shutdown of the shooter’s defense? Or just a “most likely” outcome, with caveats about juries and such?

        For deadly defensive force to be lawful you (generally) need to be facing an imminent threat of a deadly force attack, a deadly force attack about to happen in the next moment.

        A reasonable person facing such an imminent threat would believe they need to act in self-defense right now, not five seconds from now. If you believe you have at least five seconds, to the degree that you actually do a five second countdown, before you need to act in self-defense, arguably you yourself don’t believe you’re facing an imminent threat.

        Further, he didn’t just count down in his head, he did so verbally to the victim–suggesting that the countdown was of the nature a parent might do with a child–“You’d better comply with my request, or you’re going to be in trouble!”–such that the threat and use of force was not actually for purposes of self-defense, but to compel the victim to comply with the defendant’s demands (perhaps to leave the basement, who knows). You’re not allowed to shoot someone simply because they don’t do what you tell them to do, absent other justification for the use of deadly defensive force.

        –Andrew

The countdown makes it clear he wasn’t in fear of an IMMINENT threat.

One area of self-defense law that interests me concerns women. Unless we are crazy feminist leftist loons, we don’t think peeing on ourselves is a good self-defense plan. Me? I’d rather have a full glock than a full bladder.

My question here is, what if a man wouldn’t feel threatened by the mere presence of a stranger in one’s home, but a woman would? Some strange man shows up in my house in the dead of night … I am pretty sure he’s not there to sell me Tupperware. I live in Florida, so this is probably moot, but does it matter at all that a woman will feel an imminent threat from a man far more quickly and acutely than a man will?

    I’ll give you my opinion.

    Usually, it can be assumed that a disparity of force exists between your average man and your average woman. All else being equal, the male will be physically stronger. And, if the woman weighs significantly less than the man, this would further increase the disparity of force involved. This can make it easier to use deadly force against an unarmed male attacker, if you are a woman.

    As to feeling threatened, that is not enough to justify the use of force in self defense. You would have to reasonably assume that an attack was imminent, before you could use force.

    While Florida has pretty liberal self defense laws, there are a few things to remember about using deadly force in self defense in that state.

    1) If you are confronted by a person, who forcibly entered your residence, or can be reasonably believed to have forcibly entered your residence [including an occupied motor vehicle], it is assumed that person intends to cause you great bodily harm or death. Therefor you could lawfully use deadly force against that person to STOP the assumed imminent attack. But, the statute is clear that you can not use deadly force against a person who has not yet gained entrance to your residence.

    2)You might be able to use deadly force against another person, while they are still outside your secured home, or other building, if that person was threatening you with a distance weapon [firearm] which could inflict death or great bodily harm without requiring the person to enter the premises to attack you. And that it can be reasonably believed that such an attack was imminent.

    3)You can no longer threaten to use imminent deadly force against another, in self defense, unless you are legally justified in using actual deadly force. In both FSS 776.012 and 776.013, the threatened use of deadly force has been equated with the actual use of deadly force. A few years ago, the threatened use of deadly force was controlled solely by 790.10 [under statute] and by case law. Both allowed for the use of deadly force to be threatened in necessary self defense.

    Confused yet? Look, anyone who believes that they may have to use deadly force in self defense in their life, owes it to themselves to research the laws governing use of force in self defense closely and to interpret those laws in the strictest manner possible. By training yourself to act within the legal perimeters existing, one can avoid a lot of problems if one has to use force, especially deadly force in self defense.

      Wow, Mac, thanks for taking the time to write all this up for me. 🙂 It’s so helpful. I don’t believe I will ever need to know it, but you just don’t know what might come. You’re right, we have an obligation to learn about this stuff if we are prepared to use deadly force (and every woman I know is).

      As an aside, I do know that I would not have felt the need to shoot that handicap parking spot guy. He shoved and then backed off, clearly indicating that he wasn’t going to continue with a more physical attack. Who shoves someone to the ground and then steps back, doesn’t do anything else, if their intent is murder or bodily harm? My guess is that guy saw how feeble the shooter was and didn’t want to harm him. It’s really kind of sad to me how that played out.

        The secret to mastering any skill in life is training and practice. This includes cooking, sewing, balancing a checkbook, driving a car and effectively and lawfully defending yourself and others. Most people fail to train to defend themselves lawfully. The reasons are many. People don’t think they need it, or don’t want to believe that they need it.

        I have always trained people to use deadly force only as a last resort. If you make a mistake, as the Dallas PD officer did, there is no do-over. Make sure that you can justify your actions. This is where tactical training and practice come into play. Role playing scenarios, or the popular electronic shooting scenarios, really give a person an idea of exactly what such a situation is like. You have to be mentally prepared to drop the hammer, if necessary, as well as being mentally aware of when you should and should not pull that trigger.

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