The state Supreme Court has agreed to review a Colorado Springs homicide that tests the limits of Colorado’s “make my day” law, which permits people to use deadly force against unlawful intruders.
The justices on Monday announced they would review the attempted prosecution of Patrick Rau for second degree murder. Rau fatally shot Donald Russell, a man experiencing homelessness, in the basement of Rau's Colorado Springs apartment building in January 2017.
Russell reportedly became belligerent, after which Rau threatened to “count to five” and shoot if Russell did not leave. Rau then fatally shot Russell.
Colorado’s “make my day” law authorizes an occupant of a dwelling to use deadly force against unlawful entrants if the occupant believes the intruder has committed, is committing or “intends to commit a crime against a person or property.”
The government in Rau's case argued the apartment building's basement did not count as a dwelling, but the Court of Appeals agreed in June 2020 that Rau deserved immunity.
“Rau was scared that (Russell) was going to charge at him,” wrote Judge Diana Terry. “The detective also testified that Rau believed that (Russell) was using drugs because Rau found drug paraphernalia in and around the basement when he went to confront (Russell)”
Aya Gruber, a law professor at the University of Colorado, told Colorado Politics at the time that the wording of the “make my day” law is “not an accident. The legislature meant to give people in their homes broad authority to kill.”
The Supreme Court will consider whether the Court of Appeals correctly decided the basement was covered under the “make my day” law’s definition of a dwelling, given that the appellate court in 1992 affirmed the murder conviction of a man who killed someone in the stairwell landing of his apartment building.
The stairwell, concluded the 1992 appellate panel, was a common area within the apartment building. Under the “make my day” law, “the common areas of an apartment building do not constitute a dwelling.”
Colorado adopted its law in 1985 and it is a form of the “castle doctrine,” which legalizes the use of force in defense of one’s home. The policy is related to “stand your ground” laws that remove a person’s obligation, when threatened, to retreat before using force. Critics of the state-sanctioned self defense statutes refer to them as “shoot-first laws.”
A 1990 journal article suggested the Colorado General Assembly intended to protect homeowners who react to the scenario of a nighttime intruder, but the “make my day” law is actually a means of acquitting people for murders that happen to occur within dwellings.
The case the Supreme Court will consider is People v. Rau.
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