Home defense or murder? “Make My Day” shooting heads to Colorado Supreme Court

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The Colorado law that gives residents the right to kill intruders into their homes will face a new test before the Colorado Supreme Court on Monday in a case that stems from the 2017 shooting of a homeless man in a basement.

Colorado Springs renter Patrick Rau was charged with second-degree murder after he shot and killed a man who had been sleeping in the basement of the house where Rau lived — a former single-family home that had been subdivided into seven apartments.

But Colorado’s courts have so far cleared him of wrongdoing, finding he was protected 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 Colorado Supreme Court will reconsider the case Monday after an appeal from prosecutors in Fourth Judicial District Attorney Michael Allen’s office, who argue that the state’s Make My Day law should not apply to Rau’s case because he was in a common area of his apartment complex — the basement wasn’t part of his actual home, they say, and shouldn’t be covered by the law.

The state’s Make My Day law offers immunity to people who are within their own homes — but it doesn’t cover other parts of a property, like detached garages, yards, porches or driveways.

“To include the common areas of an apartment building leads to an absurd result in which the entire building — including common areas where tenants have shared control and areas where they are entitled to no control — serves as the dwelling of each resident,” Senior Deputy District Attorney Doyle Baker wrote in a brief arguing the basement wasn’t part of Rau’s dwelling.

Rau’s attorney, Timothy Bussey, argued in a counter-filing that the basement was a “secured, integral part” of Rau’s home. It was the only place in the house where the residents could change their thermostat setting, Bussey wrote in a brief, adding that the subdivided house is nothing like a traditional apartment complex and that Rau considered the entire structure to be his home.

The January 2017 incident began when Rau heard there might be an intruder in the house’s basement. He grabbed a headlamp and a loaded revolver and went to investigate, according to court records.

Rau found a man asleep on the floor in the unlit basement. He nudged the man awake with his foot and told him to get out. The man sat up and began to shout, gesture and throw things.

Rau told the man he’d count down from five, and then he would shoot the man if he hadn’t left. After the countdown, Rau followed through, shooting and killing the man, court records show.

The man killed, 37-year-old Donald Russell, was homeless, had used methamphetamine and had a knife and burglary tools beside his makeshift bed in the basement, Bussey wrote in court filings. The man was one of many people to trespass on the property and break in; it was a consistent problem at the house, Bussey wrote.

“Patrick shot because he was scared the intruder would react to ejection by becoming violent,” Bussey wrote.

There is no duty to retreat under Colorado’s self-defense laws, which allow people to stand their ground in threatening situations, though to use deadly force a person must fear immediate injury or death.

Typically in Make My Day cases, courts tend to consider the residents’ genuinely held beliefs about where the boundaries of their homes fall, said Stan Garnett, former Boulder County district attorney.

“In most criminal cases it will be cut in favor of the defendant,” he said. “If a defendant believes something is his dwelling, he will probably be entitled to invoke the Make My Day law protections… What the courts look for is people creating a faux defense. In those situations, if it doesn’t appear to be a genuine, subjective belief of the defendant, the courts will find a way to say Make My Day doesn’t apply.”

The case will be argued at 2 p.m. Monday.