Self-defense in Colorado
| Publication year | 1995 |
| Pages | 2717 |
1995, December, Pg. 2717. Self-Defense in Colorado
The appellate courts in Colorado have issued a number of decisions in the past few years dealing with self-defense. While these decisions did not make significant breaks with prior case law, they did clarify some issues relating to the defense. This article reviews the basic law of self-defense and these recent decisions.
The law of self-defense has been codified, along with affirmative defenses generally, in CRS § 18-1-701 et seq. CRS § 18-1-704 reads:
A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.(fn1)
Subsequent sections establish the "make-my-day law,"(fn2) the right to defend premises,(fn3) the right to defend property(fn4) and the right to use force in making an arrest.(fn5)
Self-defense is an affirmative defense(fn6)---that is, one that generally admits the doing of the act but offers a legal justification for it.(fn7) This means that unless the prosecution's case-in-chief raises evidence of self-defense, a defendant who wishes to raise self-defense has the burden of presenting "some credible evidence" on the issue.(fn8) Once such evidence is raised, the burden shifts back to the prosecution to disprove self-defense beyond a reasonable doubt.(fn9) The determination of whether an affirmative defense fense has been raised by the evidence is made by the trial court.(fn10)
In Colorado, a person is entitled to act on appearances when exercising self-defense: a reasonable belief that you are in danger entitles you to defend yourself, even to the extent of taking human life, even though it may later turn out that you were mistaken about the danger.(fn11) It also is true in Colorado that a person who is under attack need not retreat in the face of that attack before lawfully exercising the right of self-defense,(fn12) even to the extent of using deadly force.(fn13)
In certain circumstances, an individual may lawfully use self-defense even if he or she started the fight. An initial aggressor who withdraws from the fight and communicates this intention to the other person has the right to lawfully exercise self-defense if the other person, despite knowledge of the initial aggressor's intent to withdraw, continues the fight. The initial aggressor must retreat, however, because the no-retreat doctrine has generally not been extended to initial aggressors.(fn14) It is for the jury to determine whether the initial aggressor adequately communicated his or her intention to withdraw.(fn15)
Self-defense may be used to defend against most homicide and assault charges. One exception to this general proposition is that self-defense is not available against a charge of felony murder.(fn16) Other exceptions are discussed below. With the right facts, self-defense may be used against a charge of resisting arrest(fn17) and menacing.(fn18) The Colorado Supreme Court has not decided whether self-defense can be used to defend against the charge of prohibited use of weapons(fn19) or criminal mischief.(fn20) In certain circumstances, when more than two people are involved in a fight, aggressive acts by one person may justify the use of force against another person.(fn21)
As noted, unless the prosecution's case-in-chief raises evidence of self-defense, the defendant is obligated to present "some credible evidence" of self-defense.(fn22) The Colorado Supreme Court has consistently held that where there is any evidence tending to establish self-defense, the defendant is entitled to have the jury instructed with respect to that defense.(fn23)
However, in the recent case of People v. Wilner,(fn24) the Supreme Court appeared to retreat from this principle, at least on the subsidiary issue of the no-retreat doctrine. The defendant shot and killed a man who was repossessing his car. The defendant testified that he heard his car backing out of the driveway and ran outside with a gun, that the car began to drive toward him and that he retreated and fired warning shots before firing the fatal shot. Other evidence contradicted these claims.
The Supreme Court found that the no-retreat doctrine did not apply here because the record did not support the defendant's claim that he was not the initial aggressor or, that if he was, he withdrew and communicated his withdrawal to the victim. The dissenting justice argued that the defendant's testimony was all that was required to make applicable the no-retreat doctrine and mandate an instruction on the issue.
While the burden on the defendant to present "some evidence" is a low burden,
To continue reading
Request your trial