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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.

History
Source: L. 85: Entire section added, p. 662, § 1, effective June 6.

Annotations
Cross references: For limitations on civil suits against persons using
physical force in defense of a person or to prevent the commission of a
felony, see § 13-80-119.

Annotations
ANNOTATION

Annotations
Am. Jur.2d. See 6 Am. Jur.2d, Assault and Battery, §§ 64, 65, 69; 40 Am.
Jur.2d, Homicide, §§ 173-176.

C.J.S. See 40 C.J.S., Homicide, §§ 100, 101, 109.

Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717
(1995).

Prerequisite for immunity under this section is an unlawful entry into the
dwelling, meaning a knowing, criminal entry. People v. McNeese, 892 P.2d 304
(Colo. 1995).

To be immune from prosecution under this section a defendant must establish
by a preponderance of the evidence that he or she had a reasonable belief
that the intruder was committing or intended to commit a crime against a
person or property in addition to the uninvited entry. This inquiry focuses
on the reasonable belief of the occupant, not on the actual conduct of the
intruder. People v. McNeese, 892 P.2d 304 (Colo. 1995).

Sufficient evidence existed to support trial court's denial of defendant's
pre-trial motion to dismiss on the basis defendant had not met his burden as
established by the supreme court. People v. Janes, 962 P.2d 315 (Colo. App.
1998).

Trial court is authorized to dismiss criminal prosecution at pretrial stage
when conditions of statute are satisfied, and this does not infringe upon
prosecution's discretion to file charges. People v. Guenther, 740 P.2d 971
(Colo. 1987); Young v. District Court, 740 P.2d 982 (Colo. 1987).

Defendant bears burden of establishing right to immunity by preponderance of
evidence when issue of immunity is raised at pre-trial stage. People v.
Guenther, 740 P.2d 971 (Colo. 1987); People v. Eckert, 919 P.2d 962 (Colo.
App. 1996).

Fact that a homicide victim was on the defendant's porch does not permit the
defendant to claim immunity from prosecution for unlawful entry to
defendant's dwelling unless the court finds that defendant believed that the
victim intended to commit a crime or use physical force against the
defendant. People v. Young, 825 P.2d 1004 (Colo. App. 1991).

Defendant may still raise immunity as defense at trial when pretrial motion
to dismiss is denied. People v. Guenther, 740 P.2d 971 (Colo. 1987).

For purposes of this section, the common areas of an apartment building do
not constitute a dwelling. People v. Cushinberry, 855 P.2d 18 (Colo. App.
1993).

Where pretrial motion to dismiss on grounds of statutory immunity provided
in this section is denied, defendant may raise it as an affirmative defense
at trial. In such case, the burden of proof which is generally applicable to
affirmative defenses would apply. People v. Malczewski, 744 P.2d 62 (Colo.
1987).

Because this section creates an immunity defense as well as an affirmative
defense, and because the burden of proof for each defense is different, when
raised at trial, this section poses special problems when instructing a
jury. In such a case, instruction based on language from People v. McNeese,
which dealt with pretrial immunity, must be put into context so as not to
confuse or mislead the jury about the burden of proof with respect to an
affirmative defense raised at trial. People v. Janes, 982 P.2d 300 (Colo.
1999).

Defendant did not establish by a preponderance of the evidence that he was
entitled to immunity under this section where he could not show the struggle
and wounding of the victim took place in defendant's bedroom of the house he
shared with the victim. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).

Trial court did not commit reversible error by refusing to instruct the jury
that it need only determine whether the victim made an unlawful entry into a
part of a dwelling that was occupied by defendant, as defendant failed to
show that the bedroom was exclusively his province and that the victim's
entry into the bedroom was unlawful. People v. Eckert, 919 P.2d 962 (Colo.
App. 1996).

Instruction requiring jury to find that defendant had a reasonable belief
that victim "had committed" a crime and omitting "was committing or intended
to commit" a crime was erroneous but did not constitute plain error. There
was no evidence that the victim's entry into defendant's house was unlawful
and, therefore, no basis on which a reasonable jury could have otherwise
acquitted defendant under this section. People v. Phillips, 91 P.3d 476
(Colo. App. 2004).

Trial court erred in interpreting subsection (2) as including the concept of
"remain lawfully" within the statutory phrase "unlawful entry". Defendant
failed to establish the legal elements of this section to bar prosecution
where the victim was initially invited into defendant's residence and, after
arguing, was later asked to leave. People v. Drennon, 860 P.2d 589 (Colo.
App. 1993).

The reference to "uninvited entry" in subsection (2) refers back to the term
"unlawful entry" used in the same subsection. People v. McNeese, 892 P.2d
304 (Colo. 1995).

Victim's entry was unlawful and uninvited for the purposes of statute
providing immunity for use of force where wife of murder victim did not have
authority to invite the decedent into defendant's apartment and was staying
with the defendant on the condition that she not invite the victim into
defendant's apartment. People v. McNeese, 865 P.2d 881 (Colo. App. 1993).

When this section is being used as an affirmative defense, it is error for a
jury instruction to place the burden on the defendant to prove the
affirmative defense. People v. Janes, 962 P.2d 315 (Colo. App. 1998).

Applied in People v. Arellano, 743 P.2d 431 (Colo. 1987).





OzOne wrote in message ...
On 8 Nov 2005 14:31:09 -0800, "rgnmstr" scribbled
thusly:

Unfortunately in most states it's against the law to protect property
with deadly force.

That would be fortunately would it not....can't see a few litres of
petrol or a garden gnome being worth a life.


Oz1...of the 3 twins.

I welcome you to crackerbox palace,We've been expecting you.