A Colorado Springs man who shot and killed an intruder in the basement of his apartment building is protected from criminal prosecution by the state’s “Make My Day” law, the Colorado Supreme Court unanimously ruled Monday.
Patrick Rau was charged with second-degree murder in 2017 after he killed a man who had been sleeping in the basement of the house where Rau rented one of seven apartments.
Rau argued he was protected from prosecution by the state’s “Make My Day” law, which gives gun owners the right to shoot and kill intruders to their homes in self-defense if they believe the person intends to commit a crime and use physical force.
The state Supreme Court’s ruling Monday upholds the rulings of lower courts, which consistently found Rau could not be criminally prosecuted under the law.
Fourth Judicial District Attorney Michael Allen’s office had argued that the law should not protect Rau because the basement of the subdivided single-family home he lived in was a common area and did not qualify as his actual home. The district attorney’s office argued that granting Rau immunity would set a “absurd” precedent that would allow apartment dwellers to shoot anyone almost anywhere on the property and then claim home defense.
The Supreme Court justices rejected that argument, but noted that apartments and shared living situations pose an interesting question to the state’s self-defense laws.
“In 1985, when (the law) came into being, the legislature may not have foreseen the types of shared living arrangements that have become conventional in 2022,” Justice Carlos Samour wrote in the unanimous opinion. “To be sure, times have changed. But we have no authority to redraft (the law) in an attempt to contemporize it. It is for the legislature, not our court, to rewrite a statute.”
The opinion cautioned that the justices did not intend to “establish that all common areas in shared living arrangements” count as residents’ homes under the state’s “Make My Day” law, but rather that the justices were looking specifically at Rau’s case.
Rau killed 37-year-old Donald Russell in January 2017, after he discovered the man sleeping in the basement of the house he lived in. Rau nudged Russell, who was homeless, awake with his foot and told the man to get out.
Russell rose to his knees and began to shout and throw objects. Rau warned Russell that he was armed with a gun, and told the man he would count down from five and then shoot him if he had not left. Rau counted down and then shot and killed Russell.
There is no duty to retreat under Colorado’s self-defense laws, but to use deadly force a person must fear immediate injury or death.
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