I spent a few hours the other night going through the statute law & figured I'd make a post out of it. Besides, with the talk of expanding certain provisions of the use of force laws it'd be nice to have a reference to what's on the books right now.
There are 4 sections of Colorado law that deal with the use of force (excluding special situations such as assisting a police officer or administering treatment under direction of a physician, etc...). I'll list the text with a link to the LexisNexis page on them. The LexisNexus page includes selected bits of case law applicable to the specific sections but I wouldn't consider it to be all inclusive. I'm ommitting the internal links found on the page dealing with each section so if you wish to follow the links to other sections of Colorado law visit the LexisNexus page.
"18-1-704. Use of physical force in defense of a person.
Statute text
(1) Except as provided in subsections (2) and (3) of this section, 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; or
(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or
(c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.
(3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:
(a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or
(b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
(4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes."
I'll argue that dueling should not be illegal some other time. :) That section is fairly inclusive & it should cover most, but not all situations where using force is necessary to defend life & limb.
"18-1-704.5. Use of deadly physical force against an intruder.
Statute text
(1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.
(2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person 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 uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.
(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.
(4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force."
That's the much talked about "make my day" law in its entirety. It merely justifies the use of deadly force under the presumption that an unlawful intruder in your home means to do you some sort of harm. As you can see fromt he text it is not a "shoot your neighbor" law as it requires an entry into a home as a prerequisite to the use of deadly force (thought the previous section would cover the use of deadly force on your property under certain circumstances). The truth is many situations where you'd use deadly force against an intruder could be covered by either this section of law or the previous one. It's preferable to use the "make my day" statute because it A: makes it harder for an anti-self defense DA to press charges & B: it offers specific protection from civil liability.
"18-1-705. Use of physical force in defense of premises.
Statute text
A person in possession or control of any building, realty, or other premises, or a person who is licensed or privileged to be thereon, is justified in using reasonable and appropriate physical force upon another person when and to the extent that it is reasonably necessary to prevent or terminate what he 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. However, he may use deadly force only in defense of himself or another as described in section 18-1-704, or when he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the trespasser to commit first degree arson."
This section justifies bodily removing someone from your property. It only allows for the use of deadly force as provided in the first section of law quoted above (18-1-704) or if you think someone is about to commit arson. Funny, I don't hear the newspapers raising hell that this will lead to people planting matches on people they've just shot.
"18-1-706. Use of physical force in defense of property.
Statute text
A person is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704."
This section justifies using a certain amount of force to prevent a property crime but deadly force is only justifiable if it's used in accordance with 18-1-704.
"18-1-710. Affirmative defense.
Statute text
The issues of justification or exemption from criminal liability under sections 18-1-701 to 18-1-709 are affirmative defenses."
That's a very important modifier to the use of force laws. Wikipedia has a page on affirmitve defense that gives a good overview of what it entails. The gist is that an affirmitive defense is something that must be brought up by a defendant in order to negate any criminal or civil action being taken. The burden of proof is on the defendant although the standard of proof is usually lower than "beyond a reasonable doubt" but that will vary from state to state & in some cases from one specific affirmitive defense to another.
The important thing is that since all the above are affirmitive defenses you can be arrested & brought to trial even when they are applicable to your situation. In the case of 18-1-704.5 (the "make my day" law) it's usually used as a means of pre-trial dismissal of charges (from what I've seen) but I'm not certain if the other sections are commonly used in pre-trial motions or brought up in the course of the trial itself.
An asshat DA can & sometimes will push for an indictment even if there's a decent chance of one of the use of force statutes being applicable.
Colorado's use of force laws aren't bad, but they could be a bit better. I think that DA's pushing for convictions even though the use of force defenses are applicable is a problem & could get worse. I also think that some clarity should be brought to the use of deadly force for business owners (even though the law that covers that currently isn't that bad more protection should be afforded to curtail anti-self defense DA's). The use of deadly force in your car can & usually is covered by 18-1-704 but again to make sure some asshat prosecutor doesn't make things more complex some additional protection should be added to cover those situations. I would also like to see a presumption of harmful intent by anyone who violates a restraining order but that's unlikely given the current political climate.
Some tweaking could make things better but as long as you don't get an overzealous anti-self defense DA the current laws aren't too bad. Course the problem is that there are too many overzealous anti-self defense DA's floating around, especially in Denver proper, which means that some additions to the law are necessary.
Posted by Publicola at February 3, 2007 06:14 PM | TrackBack