The Bussey Law Firm PC Wins Colorado Supreme Court “Make My Day Case”

Patrick Rau and his girlfriend rented a second-floor apartment in an old 19th century Victorian home that had been converted into seven apartments. Early in the morning on January 19, 2017, Mr. Rau’s girlfriend noticed that the door to the basement was open. She told Mr. Rau that she suspected that someone had broken into the basement.


Client Was Facing Second Degree Murder

Bussey-Logo-BlueMr. Rau grabbed a headlamp and armed himself with a loaded revolver for protection and went to the basement. In the basement he discovered a large man sleeping in a small storage closet that is normally locked. Mr. Rau nudged the intruder with his foot and attempted to wake the intruder up. Mr. Rau verbally told the intruder that he was not supposed to be in there and told him that he needed to leave. The intruder’s behavior escalated as he yelled unintelligibly at Mr. Rau, became aggressive, and began throwing things. Mr. Rau believed that the intruder was on drugs.

As the intruder’s behavior escalated, Mr. Rau was frightened and he warned the intruder that he had a gun. These warnings did not alter the intruder’s behavior and Mr. Rau warned the intruder that he would “count to five,” and if the intruder did not leave, he would shoot the intruder. Mr. Rau counted loudly and not only did the intruder not leave, his menacing and aggressive behavior continued. Mr. Rau, in fear, fired one shot and the intruder died.

A grand jury indicted Mr. Rau for second degree murder (heat of passion). Mr. Rau was facing many years in prison for the alleged murder and turned to experienced trial attorney Timothy R. Bussey, founder of The Bussey Law Firm P.C.

The Make My Day Law

Many people have heard of what is referred to as Colorado’s Make My Day law. The name comes from a Clint Eastwood movie named Sudden Impact. The belief is that if an intruder is in your home, you can lawfully defend yourself under this Make My Day law. The law is under section 18-1-704.5, C.R.S. (2021). This law states in part that an occupant of a dwelling is justified in using any degree of physical force, including deadly force, against another when: 1) The other person has made an unlawful entry; 2) 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; 3) and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

Mr. Rau asserted an immunity against prosecution based upon C.R.S 18-1-704.5. Mr. Rau would have to meet the requirements of C.R.S. 18-1-704.5 by a preponderance of evidence in order to obtain an immunity against prosecution pursuant to the Make My Day law. The Bussey Law Firm P.C. was up against what appeared to be an insurmountable task based upon previous case law.

The Cushinberry Decision

In 1992, the Colorado Court of Appeals in the case of People v. Cushinberry, 855 P.2d 18 (Colo. App. 1992), declared that common areas in an apartment complex are not part of a dwelling for purposes of an immunity against prosecution pursuant to 18-1-704.5. The existing law in the state of Colorado was that a person living in a multifamily residence such as Mr. Rau would not be able to claim that a basement accessible by other residents would be considered part of the “dwelling.” Essentially, Mr. Rau could not assert the defense because it was the basement of a multifamily residence, as opposed to a single-family home, and the basement was a “common area” under Cushinberry.

The Long Road to Justice

Attorney Bussey was undeterred and began an almost five-year defense of Mr. Rau. Mr. Bussey personally visited the scene and interviewed witnesses. He reviewed the evidence and compiled a compelling defense for Mr. Rau. In multiday hearings he presented evidence to assert an immunity against prosecution for Mr. Rau. On September 7, 2018, the District Court judge ruled that the basement was part of Mr. Rau’s dwelling despite the Cushinberry decision.

The District Attorney appealed the decision relying heavily on the Cushinberry decision. The case went to the Colorado Court of Appeals after months of briefing and oral argument. Mr. Bussey continued to defend Mr. Rau. On June 11, 2020, the Colorado Court of Appeals ruled in Mr. Rau’s favor and determined that the basement in question was part of Mr. Rau’s dwelling.

The District Attorney requested that the Colorado Supreme Court review the case as the District Court judge and the Colorado Court of Appeals had ruled in Mr. Rau’s favor despite the existing Cushinberry decision that had been in existence since 1992. The Supreme Court, which does not accept every case for review, decided to address the Rau case.

Again, months of briefing occurred and then oral argument on November 8, 2021. Mr. Bussey appeared before the Colorado Supreme Court and argued the case. The oral argument can be viewed here.

The Supreme Court, after reviewing the record, the briefs, and oral argument, issued a decision on January 10, 2022. The decision, written by Justice Samour, and joined by the other six justices, concluded that the basement where Mr. Rau shot the intruder was his dwelling for purposes of the statute. The transcript of the proceedings can be found here.

Dedication, Creativity, and Skill

The Bussey Law Firm P.C. has a long and rich history of assisting Coloradoans in both criminal cases and person injury actions. The Rau case shows the amount of time, dedication, creativity, legal skill, and stubbornness that is required on large cases. If you have been charged with a crime or injured in an accident, contact The Bussey Law Firm P.C. at (719) 475-2555.