Colorado law that gives residents the right to kill intruders in their homes will face a new trial before the Colorado Supreme Court on Monday that stems from the 2017 shooting of a homeless man in a basement.
Colorado Springs tenant Patrick Rau was charged with second-degree murder after shooting and killing a man who was sleeping in the basement of the house where Rau lived—a former single-family home known for seven years. The apartment was divided into
But Colorado courts have so far cleared him of wrongdoing, finding that he was protected by the state’s “Make My Day” law, which gives gun owners the right to shoot and kill intruders in their homes in self-defense. if they believe that the person intended to commit an offense and to use physical force.
The Colorado Supreme Court will reconsider the case on Monday following an appeal from prosecutors in the office of Fourth Judicial District Attorney Michael Allen, who argue that the state’s Make My Day law should not apply to Rau’s case because he is a member of his apartment complex. Were in a common area—the basement was not part of their actual home, they say, and should not be covered by law.
The state’s Make My Day law provides immunity to people who are inside their homes — but it doesn’t cover other parts of the property, such as detached garages, yards, porches, or driveways.
“An absurd result is to include the common areas of an apartment building in which the entire building – including the common areas where tenants share control and the areas they are entitled to control – serves as the residence of each resident. Senior Deputy District Attorney Doyle Baker wrote in a brief argument that the basement was not part of Rau’s residence.
Rau’s attorney, Timothy Bassi, argued in a counter-filing that the basement was a “secure, integral part” of Rau’s home. It was the only place in the house where residents could change their thermostat setting, Bassi wrote briefly, adding that the sub-divided house is nothing like a traditional apartment complex and that Rao considered the entire structure his home.
The incident started in January 2017 when Rau heard that there might be an intruder in the basement of the house. According to court records, he grabbed a headlamp and a loaded revolver and went to investigate.
Rau found a man sleeping on the floor in the basement without burning. He pushed the waking man with his leg and asked him to get out. The man sat up and started shouting, pointing and throwing things.
Rau told the man that he would count out of five, and then he would shoot the man if he had not left. After the countdown, Rau followed, shooting and killing the man, court records show.
The man killed, Donald Russell, 37, was homeless, had used methamphetamine and had a knife and stolen tools next to his makeshift bed in the basement, Bassi wrote in the court filing. The man was one of many who trespassed on and broke into the property; This was an ongoing problem in the house, Bassi wrote.
“Patrick shot because he was afraid the intruder would react violently to the eviction,” Bassi wrote.
There is no duty of retreat under Colorado’s self-defense laws, which allow people to stand their ground in dangerous situations, although a person must fear immediate injury or death in order to use deadly force.
Stan Garnett, a former Boulder County District Attorney, said that typically in Make My Day cases, courts consider residents’ truly held beliefs, depending on where the boundaries of their homes fall.
“In most criminal cases it will be cut in favor of the defendant,” he said. “If a defendant believes something is his residence, he would probably be entitled to apply Make My Day law protections … What courts see is people making counterfeit defenses. In those situations, if If it does not appear to be the defendant’s genuine, subjective belief, the courts will find a way to say that Make My Day does not apply.”
The matter will come up for hearing on Monday at 2 pm.