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November 6, 2014 |
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Why Do You Own Or Carry A Gun? |
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Dear Members,
We want to hear your stories and your feedback, tell us: why do you own and/or carry a firearm and what do your Second Amendment rights mean to you? The more responses and feedback we receive, the better we will be able to serve you, our members. We look forward to your responses.
Sincerely,
Dave Donchecz
Vice President of Member Services
To answer Dave’s question, simply click here or the photo above and respond in the comment section. Remember, you may need to be signed into your Facebook account to share your response. If you aren’t following U.S. Law Shield on Facebook, now is a perfect time to do so, simply click the “Like” button at the top of the U.S. Law Shield page for daily content regarding gun news and law changes across the country. We appreciate that some members don’t feel comfortable posting publically that they own firearms; please feel free to still share what it is you think the Second Amendment means or is intended to do or email Dave Donchecz at dave@uslawshield.com.
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Colorado Gun Law: The Castle Doctrine |
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For a man’s house is his castle, and each man’s home is his safest refuge – Sir Edward Coke 1628 (Institute of the Laws of England)
Dear Members and Friends,
If you have watched the news on TV or read a newspaper, you may have heard the phrases “Castle Doctrine,” “Make My Day,” and “Stand Your Ground” in reference to self-defense laws. There has been considerable debate about just what these laws are and how far they allow someone to go in protecting themselves, their homes, and their family. Unfortunately, not every news outlet or blog writer is as informed about these legal concepts as they could be.
The purpose of this article is to introduce these important legal concepts to you, and explain them clearly enough that you will be better prepared in case you ever need to protect your family, home or self from danger.
What is the Castle Doctrine?
The phrase “Castle Doctrine,” is a simple description of a complicated state law. However, the phrase is not actually found in the applicable state statutes. The concept of the Castle Doctrine comes from the philosophy that every person is the King or Queen of their home, and as such, is entitled to certain privileges that others are not entitled to. In the context of firearms self-defense law, it means that a person is given the presumption that their actions were reasonable when they use force or deadly force against an unlawful intruder. C.R.S.A Section 18-1-704.5 is Colorado’s version of the Castle Doctrine, and the first section of the law does a good job of describing this philosophy: “The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.”
In Colorado, some may know the Castle Doctrine as the “Make My Day” law, named from the famous line from Clint Eastwood’s Sudden Impact: “Go ahead, make my day!” This law found in C.R.S.A. § 18-1-704.5 affords you legal protection while inside your “castle” by allowing you to use any degree of physical force - including deadly force - against an unlawful intruder under certain circumstances. In effect, if it is necessary for you to use any degree of force, including deadly force: (1) against someone who has unlawfully entered into your dwelling, (2) when you reasonably believe that the intruder(s) has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the unlawful entry, and (3) when you reasonably believe that they might use any physical force against any occupant of the dwelling, no matter how slight, you are given the legal presumption to have acted reasonably in using that force.
It is important to note that the statute uses the word “dwelling” and not “property.” This serves to limit the areas in which you can use be justified under the Castle Doctrine in using force or deadly force against an unlawful intruder under this specific statute. C.R.S.A. § 18-1-901(g) defines dwelling as “a building which is used, intended to be used, or usually used by a person for habitation.” Your dwelling can be your family home, apartment, or some other building that is used or intended to be used for habitation. Under the plain language of this statute, property that is not your dwelling, including front and back yards, detached garages, and common areas of apartments, is not included in the places covered under the Castle Doctrine. On the other hand, an attached garage is considered to be part of a dwelling, because it is part of the building that a person lives in, and therefore, you may use force or deadly force if a person unlawfully enters into the garage and be covered under the Castle Doctrine.
Does Colorado’s Castle Doctrine Apply To Mere Trespassers?
No. As discussed above, you are only presumed to have acted reasonably in using force or deadly force against an unlawful intruder who enters your dwelling. This excludes trespassers who merely step onto your property without permission. Further, even if an intruder unlawfully enters into your detached garage or shed, you are not free to simply use any degree of force to get them to leave. Be sure that you do not fall victim to the common misconception that the Castle Doctrine gives you carte blanche to use deadly force against someone just because they are on your property! This could result in both criminal charges and a civil lawsuit, things you would be better off without!
You do have a legal right to exclude or remove trespassers from your land, however, you are limited to using non-deadly force to do so. C.R.S.A. § 18-1-705 allows a person in possession or control of any building, realty, or other premises to use reasonable and appropriate physical force against another person when and to the extent that it is reasonably necessary to prevent or terminate what that person reasonably believes to be the commission or attempted commission of an unlawful trespass by the other person in or upon the building, realty, or premises.
What If A Trespasser Starts Committing Other Crimes?
If a trespasser has more nefarious motives for being on your property, a mere criminal trespass may turn into a more serious crime where you could be justified in using not only force, but deadly force, to protect your premises or property. C.R.S.A. § 18-1-706 states that if a person enters your property and is committing theft, criminal mischief, or criminal tampering involving your property, you may use reasonable and appropriate physical force to the extent it is reasonably necessary to terminate the trespass, theft, criminal mischief, or criminal tampering. Deadly force is not allowed against a person in these circumstances.
On the other hand, C.R.S.A. § 18-1-704 and § 18-1-705 does allow a person to use deadly force against a trespasser who goes beyond being merely present or attempting to commit a relatively minor crime such as theft or criminal mischief. Specifically, if a trespasser commits or attempts to commit the more serious crimes of arson, robbery, burglary, kidnapping, sexual assault, or is engaged in an act to kill or cause great bodily injury, then the use of deadly force against that trespasser may be legally justified.
Unfortunately, it may be difficult to know what a trespasser intends to do on your property. Because of this, it is important that you act reasonably and be able to fully articulate what crime you suspect a trespasser is committing in case you must defend yourself in court. For this reason it is also a good idea not to give statements to 911 operators or police without an attorney.
Once again, however, if a trespasser comes onto your property, refuses to leave, and is not committing or has not committed any of the serious crimes listed above, you are likely not justified in using deadly force to remove the trespasser from your property. You may be justified in using reasonable and appropriate physical force if the trespasser is trying to steal something or commit criminal mischief, but you may not be justified in shooting your firearm at the trespasser!
Criminal Prosecution Even If You Were Justified
If all of the requirements of the “Make My Day” law are met, the statute provides immunity from criminal prosecution. This immunity is distinct from a self-defense claim. While the immunity under the “Make My Day” law is decided in a pre-trial hearing, a self-defense claim is decided at a later point in the trial by a judge or jury. Even if you lose the argument that you should be immune from criminal charges, you can still present a self-defense argument later in the trial.
However, while Colorado law may provide you a legal justification for using force or deadly force when someone enters your dwelling or attacks you, this does not mean that you are immune to being arrested and thrown in jail. Even if you were completely in-the-right and acted according to law, you may still be subject to all of the complicated and drawn-out processes of the legal system. Your right to assert a legal justification under the “Make My Day” law is just that: a legal justification. It is neither a “Get Out of Jail Free Card,” nor blanket exemption from the legal process.
In fact, always remember there is a high probability that you will go to jail and have to post bond to get out long before the issue of justification is considered by the court. We see cases like this frequently, not to mention other cases similar to these unfolding all over the country every day. You may end up having to go through the process of a criminal trial to assert your justification defense before a judge or jury in order to be absolved of any guilt in the eyes of the legal system. In addition, this process may take months, years, or even a lifetime to get resolved, if a jury doesn’t agree with your affirmative defense!
Colorado’s Stand Your Ground Law
The phrase “Stand Your Ground,” just like the phrases “Castle Doctrine and “Make My Day,” is not found in Colorado statutory law, despite its common use in the media. The phrase “Stand Your Ground” refers to the absence of a duty to retreat from a threat prior to using force or deadly force against that threat. While Colorado statutory law has never explicitly required an individual to retreat before using force or deadly force when confronted with a threat, the Colorado Supreme Court has addressed this issue.
In People v. Toler, 9 P.3d 341 (Colo. 2000) the court held that neither Colorado common law nor C.R.S.A. § 18-1-704, Colorado’s statute laying out the requirements to use physical force in defense of a person, require a person to retreat before using force as long as they are not the aggressor and they are entitled to use deadly physical force in defense, regardless of whether the person is in a place where they have a right to be. Additionally, the court held that a person does not have to try to escape before using reasonable non-deadly physical force to defend against unlawful force by an aggressor.
Qualifications To Use Force or Deadly Force Under the Colorado Defense of Person Statute
While you may not have to try to escape or retreat before using force or deadly force, it is imperative that you are justified in using them! C.R.S.A. § 18-1-704 states that a person is allowed to use force or deadly force in defense of himself or another person under certain conditions. This statutes provides a legal justification to use force or deadly force outside of your dwelling and, in effect, gives you the ability to meet force with force when necessary. Under the statute, you are justified in using physical force against another person to defend yourself or a third person from what you reasonably believe to be the imminent use of unlawful physical force by the other person.
You are justified in using deadly force only if you reasonably believe that a lesser degree of force is inadequate to defend yourself or another and (1) you have “reasonable ground” to believe, and you do believe that you or another person is in imminent danger of being killed or suffering great bodily injury; (2) the offending party is using or reasonably appears about to use physical force against an occupant of a dwelling or business while committing or attempting to commit burglary, or (3) the offending party is committing or reasonably appears about to commit kidnapping, robbery, assault, or sexual assault.
To put it more plainly, you have no duty to retreat and have the right to “stand your ground” and use force if you meet all of the following four conditions. You have the right to use deadly force if you meet the requirements above for deadly force and all of the following four conditions:
- You are facing an imminent threat;
- You did not provoke the unlawful use of force;
- You were not the initial aggressor or you communicated your withdrawal from the conflict; and
- You were not involved in agreed combat.
An important restriction is that you may only use a degree of force that you reasonably believe to be necessary for defending yourself or another and not a level of force higher. As an example, suppose that you are walking down the street and are attacked by an unarmed thug playing the “knockout game.” The thug’s punch fails to achieve its purpose of knocking you out, and in an effort to defend yourself from further attack, you pull out your firearm while still lying on the ground, ready to discharge the weapon at the attacker. If you see the attacker running away, you will not be justified in shooting at the attacker, as deadly force is not necessary to defend yourself from further attack and it is unlikely that a jury would find it necessary to shoot an unarmed individual in the back as he was running away in order to defend yourself. It should be mentioned, however, that it can difficult to tell what the attacker plans to do next, e.g. he may be running to grab a gun.
In a different scenario, suppose that you are in a convenience store buying a soda late at night. A masked man wielding a sawed-off shotgun kicks open the door of the store, fires a shot at the clerk, and points his shotgun at you, as if to shoot you. In this case, you would probably be justified in using deadly force against the criminal, because you would have “reasonable ground” to believe that you are in imminent danger of death or seriously bodily injury.
Disqualifications
There are a number of situations where your conduct may disqualify you from being able to use of force or deadly force. As mentioned above, you must meet four conditions in order to use force or deadly force. If any of these four conditions are not met, you will not be justified in using force or deadly force, regardless of whether you may would have otherwise had the right to stand your ground. There are a number of situations in which these conditions may not be met. If you fall under one of the following situations, your use of force or deadly force against another will not be justified:
- No Imminent Threat : The use of force is not justified if the threat you are facing is not imminent. For example, if someone merely verbally insults you 500 feet away, you cannot use force against them.
- No Provocation: If you provoke the other person into using force against you, intending to cause bodily injury or death to the person, your subsequent use of force or deadly force will not be justified.
- No Initial Aggression: You may not be the initial aggressor, except your use of physical force against the other person is justifiable if you withdraw from the encounter and effectively communicate your intent to do so and the other party threatens or continues unlawful force.
- Combat By Agreement: Use of force or deadly force during agreed combat is not justifiable. Thus, if you engage in a pistol duel with another person, your shooting of the other person cannot be justified.
Conclusion
As you can see, the Colorado versions of the "Castle Doctrine" (also known as "Make My Day") and "Stand Your Ground" laws are extremely complex and cannot be summarized with simple catch phrases. These topics consume thousands of pages of legal treatises and continue to be a huge part of many lawyers' careers, so obviously this article is only a brief overview. We hope, however, that this newsletter provides you with a better understanding of both of these legal topics. If you have any questions about these or other Colorado firearms laws, please do not hesitate to contact us, and we will be happy to help.
DISCLAIMER
Members and friends please keep in mind that each circumstance may be different and although this is a general discussion of the law, it should not be considered legal advice for you or any other situation. If you have any legal questions make sure you contact a licensed lawyer, or, members better yet, if you have a question we can get you in contact with one of our independent firearms program attorneys who will be happy to answer your firearms questions.
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Featured Seminars: Members, Join Us and Bring a Friend |
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U.S. Law Shield is proud to host informative Gun Law Seminars and Workshops all over the State of Colorado. Come join us as our independent program attorneys and firearms experts separate legal fact from fiction.
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DENVER
Tanner Gun Show
Saturday, November 8, 2014
1 p.m. to 4 p.m.
Cost: $15, registration includes a 2-day pass to Tanner Gun Show
Sign up here!
COLORADO SPRINGS
Whistling Pines Gun Club
Monday, November 10, 2014
5:30 p.m. to 8:30 p.m.
Cost: $35 - use promo code USLS for $25 off registration
Sign up here!
LAKEWOOD
BluCore Shooting Center
Saturday, November 15, 2014
1 p.m. to 4 p.m.
Cost: $10
Sign up here!
CENTENNIAL
Centennial Gun Club
Gun Law Seminar For Educators
Thursday, November 20, 2014
6 p.m. to 9 p.m.
Cost: $10
Sign up here!
LOVELAND
Tanner Gun Show
Saturday, November 22, 2014
Cost: $15, registration includes a 2-day pass to Tanner Gun Show
1 p.m. to 4 p.m.
Sign up here!
COLORADO SPRINGS
Whistling Pines Gun Club
Monday, November 24, 2014
5:30 p.m. to 8:30 p.m.
Cost: $35 - use promo code USLS for $25 off registration
Sign up here!
LAKEWOOD
BluCore Shooting Center
Monday, November 24, 2014
5:30 p.m. to 8:30 p.m.
Cost: $10
Sign up here!
CENTENNIAL
Centennial Gun Club
Tuesday, November 25, 2014
5:30 p.m. to 8:30 p.m.
Cost: $10
Sign up here!
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To view a complete list of seminars and workshops in your area, please go to www.GunLawSeminar.com. We hope to see you at one of our next events!
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