A home intruder is everyone’s worst nightmare. The home is where we feel the safest, where we can relax, knowing that we are protected by four strong walls and a locked door. But an intruder can shatter that sense of safety in a heartbeat. This is why the right to defend your home, otherwise known as the “Make My Day” law, is such an important one in Colorado.
In the state of Colorado, everyone has the right to use deadly force against an unlawful intruder who intends to commit a crime, as written in 18-1-704.5, C.R.S. So, when our client, Mr. Rau, went into his basement only to find an aggressive intruder, he shot and killed the intruder, exercising his right to defend his home.
In People v. Rau, 18CA2025, the district attorney sought to indict our client for second-degree murder. In seeking the indictment for a class 2 felony, the prosecutor theorized that the immunity set down in the “Make My Day” law, which would normally protect someone who was defending their home from criminal prosecution, did not apply in our client’s case. The prosecutor argued that, based on a 1992 case, People v. Cushinberry, 855 P.2d 18, that because our client lived in a multi-family home, the basement was a shared space and not part of the actual dwelling. Thus, Mr. Rau was not immune to criminal prosecution.
As a result, Mr. Rau was indicted by a grand jury for second-degree murder. Mr. Rau sought the assistance of The Bussey Law Firm P.C. to defend him against the serious murder allegation. The Bussey Law Firm P.C. investigated the case and researched the law. After this investigation the Bussey Law Firm P.C. challenged the murder charge. Attorney Timothy Bussey prepared and filed a motion to dismiss the charge against Mr. Rau based under the protections under the “Make My Day” law. Bussey advocated that the Mr. Rau the basement, where the shooting occurred, was part of his dwelling. Following a litigated hearing that involved many witnesses, the District Court Judge declared that our client is indeed immune from prosecution and dismissed the murder charge against him.
However, the district attorney seemed to be unwilling to accept that judgment and appealed to the Colorado Court of Appeals. In a published decision on June 11, 2020, the Court of Appeals affirmed the ruling that Mr. Rau is immune. As many court cases are based on past rulings, this decision is a monumental one. It sets a new precedent for the “Make My Day” law and declines to follow the precedent already set forth by the People v. Cushinberry case. This means that moving forward, the “Make My Day” law protects home occupants in areas in multifamily housing as long as it meets the statutory definition of a dwelling.
However, we would like to caution readers that this is not yet a final appellate judgment, meaning that there is still a chance for it to be overturned. The district attorney may seek and obtain a review by the Colorado Supreme Court. The Supreme Court’s decision whether to hear the case is discretionary. If they do choose to hear it, then our client’s immunity and the right to protect your home—whether you are in a shared space or not—will be once again questioned and addressed by the higher court.
We at The Bussey Law Firm, P.C. are optimistic about this case and Mr. Rau’s immunity. This appellate win in the Court of Appeals is an important step in the defense of our client’s rights. The decision is encouraging, as it protects the integrity and scope of the “Make My Day” law, which impacts every person living in Colorado.
The Bussey Law Firm, P.C. will continue to act as zealous advocates for the freedom of our fellow Colorado citizens. No one may take our rights from us, especially not the right to protect ourselves, our families, and our homes. If you or a loved one has been arrested for using defensive physical force, call a Colorado Springs criminal defense attorney at (719) 475-2555 to learn how to protect your rights.