Colorado Is A No Duty To Retreat State - But Martin Case Would Receive Different Treatement - Prosecuted First - No Immunity

March 24, 2012  


As a result of the tragic and incomprehensible shooting of 17 year old Trayvon Martin in Florida -- much attention has been centered on Florida's No Duty To Retreat Law. The truth is Colorado has a caselaw version, (not a statutory or legislatively passed) version of the law for many years. In the case of Idrogo v. People decided by the Colorado Supreme Court in 1991, the Court held that that:

"an innocent victim of an assault is not bound to retreat before using deadly force when the use of such force is reasonable under the circumstances." The principle that you have no duty to retreat applies regardless of the level of force you employ to defend yourself.

Wihle there is always a requirement that the amount of force used be appropriate under Colorado law, one must be in fear of imminent serious bodily injury or death before one can use deadly force to defend themselves. But a person who is in fear of serious bodily injury or death need not retreat before using deadly force.

The law is codified in part under the affirmative defense to a charge of unlawful use of force in CRS 18-1-704.

The affirmative defense of self-defense is found at section 18-1-704, 8B C.R.S. (1986).

That statute states, in pertinent part, as follows:

(1) ... 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.

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury....

Where Colorado DIFFERS from Florida is in the grant of immunity under the No Duty To Retreat Doctrine. Colorado ONLY offers immunity from prosecution (as opposed to raising the affirmative defense of self defense at a trial) in the so called Make My Day Case.

The "Make My Day" statute creates certain additional rights of self defense. Section 18-1-704.5, C.R.S. provides that the occupant of a dwelling is justified in using any degree of physical force against a person who has unlawfully entered the dwelling, if the occupant reasonably believes that the intruder has committed, is committing or is about to commit a crime in addition to the unlawful entry and also reasonably believes that the intruder might use any physical force against any occupant.

The Colorado Make My Day Law goes further than other forms of self defense by providing for immunity from prosecution (as well as from civil liability) rather than merely establishing an affirmative defense. Section 18-1-704.5, C.R.S. provides that the occupant of a dwelling is justified in using any degree of physical force against a person who has unlawfully entered the dwelling, if the occupant reasonably believes that the intruder has committed, is committing or is about to commit a crime in addition to the unlawful entry and also reasonably believes that the intruder might use any physical force against any occupant.

Florida's self-defense law has eliminated a citizen's duty to retreat before
using deadly force to confront an attacker AND the law includes a similar Make My Day provision that grants "immunity" from prosecution or civil suit if a person is deemed to have acted in self-defense, though lawmakers did not clearly specify exactly who bestows the immunity.

H. Michael's Take:

Colorado's Make My Day law makes sense to me. Also known as the so called "Castle Doctrine" the grant of immunity arises from a family protecting itself from intruders into their home. Our nation has always placed the home as the ultimate bastion of privacy - both for search warrant purposes and for arrest warrant requirements. It is a place where we have a constitutionally protected right to feel safe.

The extension of the Make My Day law, taken out of the home and onto the "street" - exists in one form or another in over 23 states. Colorado has taken a more intellegent and tempered response to the No Duty To Retreat Doctrine - and has, over the years, averted the problems we are now seeing in Florida in the Zimmerman case.

In Colorado Mr. Zimmerman would have been arrested - THEN he would have the right to raise self defense as an affirmative defense against the charge of Second Degree Murder...and a jury would decide if his actons were justified. That makes sense to me.