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November 6, 2014 |
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Why Do You Own Or Carry A Gun? |
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Dear Members,
We want to hear your stories and your feedback, tell us: why do you own and/or carry a firearm and what do your Second Amendment rights mean to you?
The more responses and feedback we receive, the better we will be able
to serve you, our members. We look forward to your responses.
Sincerely,
Dave Donchecz
Vice President of Member Services
To answer Dave�s question, simply click here
or the photo above and respond in the comment section. Remember, you
may need to be signed into your Facebook account to share your response.
If you aren�t following U.S. Law Shield on Facebook, now is a perfect
time to do so, simply click the �Like� button at the top of the U.S. Law Shield
page for daily content regarding gun news and law changes across the
country. We appreciate that some members don�t feel comfortable posting
publically that they own firearms; please feel free to still share what
it is you think the Second Amendment means or is intended to do or email
Dave Donchecz at [email protected].
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Colorado Gun Law: The Castle Doctrine |
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For a man�s house is his castle, and each man�s home is his safest refuge � Sir Edward Coke 1628 (Institute of the Laws of England)
Dear Members and Friends,
If you have watched the news on TV or read a newspaper, you may have
heard the phrases �Castle Doctrine,� �Make My Day,� and �Stand Your
Ground� in reference to self-defense laws. There has been considerable
debate about just what these laws are and how far they allow someone to
go in protecting themselves, their homes, and their family.
Unfortunately, not every news outlet or blog writer is as informed about
these legal concepts as they could be.
The purpose of this article is to introduce these important legal
concepts to you, and explain them clearly enough that you will be better
prepared in case you ever need to protect your family, home or self
from danger.
What is the Castle Doctrine?
The phrase �Castle Doctrine,� is a simple description of a complicated
state law. However, the phrase is not actually found in the applicable
state statutes. The concept of the Castle Doctrine comes from the
philosophy that every person is the King or Queen of their home, and as
such, is entitled to certain privileges that others are not entitled to.
In the context of firearms self-defense law, it means that a person is
given the presumption that their actions were reasonable when they use
force or deadly force against an unlawful intruder. C.R.S.A Section
18-1-704.5 is Colorado�s version of the Castle Doctrine, and the first
section of the law does a good job of describing this philosophy: �The
general assembly hereby recognizes that the citizens of Colorado have a
right to expect absolute safety within their own homes.�
In Colorado, some may know the Castle Doctrine as the �Make My Day� law, named from the famous line from Clint Eastwood�s Sudden Impact:
�Go ahead, make my day!� This law found in C.R.S.A. � 18-1-704.5
affords you legal protection while inside your �castle� by allowing you
to use any degree of physical force - including deadly force - against
an unlawful intruder under certain circumstances. In effect, if it is
necessary for you to use any degree of force, including deadly force:
(1) against someone who has unlawfully entered into your dwelling, (2)
when you reasonably believe that the intruder(s) 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 unlawful entry, and (3) when you reasonably believe that they might
use any physical force against any occupant of the dwelling, no matter
how slight, you are given the legal presumption to have acted reasonably
in using that force.
It is important to note that the statute uses the word �dwelling� and
not �property.� This serves to limit the areas in which you can use be
justified under the Castle Doctrine in using force or deadly force
against an unlawful intruder under this specific statute. C.R.S.A. �
18-1-901(g) defines dwelling as �a building which is used, intended to
be used, or usually used by a person for habitation.� Your dwelling can
be your family home, apartment, or some other building that is used or
intended to be used for habitation. Under the plain language of this
statute, property that is not your dwelling, including front and back
yards, detached garages, and common areas of apartments, is not included
in the places covered under the Castle Doctrine. On the other hand, an
attached garage is considered to be part of a dwelling, because it is
part of the building that a person lives in, and therefore, you may use
force or deadly force if a person unlawfully enters into the garage and
be covered under the Castle Doctrine.
Does Colorado�s Castle Doctrine Apply To Mere Trespassers?
No. As discussed above, you are only presumed to have acted reasonably
in using force or deadly force against an unlawful intruder who enters
your dwelling. This excludes trespassers who merely step onto your
property without permission. Further, even if an intruder unlawfully
enters into your detached garage or shed, you are not free to simply use
any degree of force to get them to leave. Be sure that you do not fall
victim to the common misconception that the Castle Doctrine gives you carte blanche to
use deadly force against someone just because they are on your
property! This could result in both criminal charges and a civil
lawsuit, things you would be better off without!
You do have a legal right to exclude or remove trespassers from your
land, however, you are limited to using non-deadly force to do so.
C.R.S.A. � 18-1-705 allows a person in possession or control of any
building, realty, or other premises to use reasonable and appropriate
physical force against another person when and to the extent that it is
reasonably necessary to prevent or terminate what that person reasonably
believes to be the commission or attempted commission of an unlawful
trespass by the other person in or upon the building, realty, or
premises.
What If A Trespasser Starts Committing Other Crimes?
If a trespasser has more nefarious motives for being on your property, a
mere criminal trespass may turn into a more serious crime where you
could be justified in using not only force, but deadly force, to protect
your premises or property. C.R.S.A. � 18-1-706 states that if a person
enters your property and is committing theft, criminal mischief, or
criminal tampering involving your property, you may use reasonable and
appropriate physical force to the extent it is reasonably necessary to
terminate the trespass, theft, criminal mischief, or criminal tampering.
Deadly force is not allowed against a person in these circumstances.
On the other hand, C.R.S.A. � 18-1-704 and � 18-1-705 does allow a
person to use deadly force against a trespasser who goes beyond being
merely present or attempting to commit a relatively minor crime such as
theft or criminal mischief. Specifically, if a trespasser commits or
attempts to commit the more serious crimes of arson, robbery, burglary,
kidnapping, sexual assault, or is engaged in an act to kill or cause
great bodily injury, then the use of deadly force against that
trespasser may be legally justified.
Unfortunately, it may be difficult to know what a trespasser intends to
do on your property. Because of this, it is important that you act
reasonably and be able to fully articulate what crime you suspect a
trespasser is committing in case you must defend yourself in court. For
this reason it is also a good idea not to give statements to 911
operators or police without an attorney.
Once again, however, if a trespasser comes onto your property, refuses
to leave, and is not committing or has not committed any of the serious
crimes listed above, you are likely not justified in using deadly force
to remove the trespasser from your property. You may be justified in
using reasonable and appropriate physical force if the trespasser is
trying to steal something or commit criminal mischief, but you may not
be justified in shooting your firearm at the trespasser!
Criminal Prosecution Even If You Were Justified
If all of the requirements of the �Make My Day� law are met, the
statute provides immunity from criminal prosecution. This immunity is
distinct from a self-defense claim. While the immunity under the �Make
My Day� law is decided in a pre-trial hearing, a self-defense claim is
decided at a later point in the trial by a judge or jury. Even if you
lose the argument that you should be immune from criminal charges, you
can still present a self-defense argument later in the trial.
However, while Colorado law may provide you a legal justification for
using force or deadly force when someone enters your dwelling or attacks
you, this does not mean that you are immune to being arrested and
thrown in jail. Even if you were completely in-the-right and acted
according to law, you may still be subject to all of the complicated and
drawn-out processes of the legal system. Your right to assert a legal
justification under the �Make My Day� law is just that: a legal
justification. It is neither a �Get Out of Jail Free Card,� nor blanket
exemption from the legal process.
In fact, always remember there is a high probability that you will go to
jail and have to post bond to get out long before the issue of
justification is considered by the court. We see cases like this
frequently, not to mention other cases similar to these unfolding all
over the country every day. You may end up having to go through the
process of a criminal trial to assert your justification defense before a
judge or jury in order to be absolved of any guilt in the eyes of the
legal system. In addition, this process may take months, years, or even a lifetime to get resolved, if a jury doesn�t agree with your affirmative defense!
Colorado�s Stand Your Ground Law
The phrase �Stand Your Ground,� just like the phrases �Castle Doctrine
and �Make My Day,� is not found in Colorado statutory law, despite its
common use in the media. The phrase �Stand Your Ground� refers to the
absence of a duty to retreat from a threat prior to using force or
deadly force against that threat. While Colorado statutory law has never
explicitly required an individual to retreat before using force or
deadly force when confronted with a threat, the Colorado Supreme Court
has addressed this issue.
In People v. Toler, 9 P.3d 341 (Colo. 2000) the court held that
neither Colorado common law nor C.R.S.A. � 18-1-704, Colorado�s statute
laying out the requirements to use physical force in defense of a
person, require a person to retreat before using force as long as they
are not the aggressor and they are entitled to use deadly physical force
in defense, regardless of whether the person is in a place where they
have a right to be. Additionally, the court held that a person does not
have to try to escape before using reasonable non-deadly physical force
to defend against unlawful force by an aggressor.
Qualifications To Use Force or Deadly Force Under the Colorado Defense of Person Statute
While you may not have to try to escape or retreat before using force
or deadly force, it is imperative that you are justified in using them!
C.R.S.A. � 18-1-704 states that a person is allowed to use force or
deadly force in defense of himself or another person under certain
conditions. This statutes provides a legal justification to use force or
deadly force outside of your dwelling and, in effect, gives you the
ability to meet force with force when necessary. Under the statute, you
are justified in using physical force against another person to defend
yourself or a third person from what you reasonably believe to be the
imminent use of unlawful physical force by the other person.
You are justified in using deadly force only if you reasonably
believe that a lesser degree of force is inadequate to defend yourself
or another and (1) you have �reasonable ground� to believe, and you do
believe that you or another person is in imminent danger of being killed
or suffering great bodily injury; (2) the offending party is using or
reasonably appears about to use physical force against an occupant of a
dwelling or business while committing or attempting to commit burglary,
or (3) the offending party is committing or reasonably appears about to
commit kidnapping, robbery, assault, or sexual assault.
To put it more plainly, you have no duty to retreat and have the right to �stand your ground� and use force if you meet all
of the following four conditions. You have the right to use deadly
force if you meet the requirements above for deadly force and all of the following four conditions:
- You are facing an imminent threat;
- You did not provoke the unlawful use of force;
- You were not the initial aggressor or you communicated your withdrawal from the conflict; and
- You were not involved in agreed combat.
An important restriction is that you may only use a degree of force that
you reasonably believe to be necessary for defending yourself or
another and not a level of force higher. As an example, suppose that you
are walking down the street and are attacked by an unarmed thug playing
the �knockout game.� The thug�s punch fails to achieve its purpose of
knocking you out, and in an effort to defend yourself from further
attack, you pull out your firearm while still lying on the ground, ready
to discharge the weapon at the attacker. If you see the attacker
running away, you will not be justified in shooting at the attacker, as
deadly force is not necessary to defend yourself from further attack and
it is unlikely that a jury would find it necessary to shoot an unarmed
individual in the back as he was running away in order to defend
yourself. It should be mentioned, however, that it can difficult to tell
what the attacker plans to do next, e.g. he may be running to grab a
gun.
In a different scenario, suppose that you are in a convenience store
buying a soda late at night. A masked man wielding a sawed-off shotgun
kicks open the door of the store, fires a shot at the clerk, and points
his shotgun at you, as if to shoot you. In this case, you would probably
be justified in using deadly force against the criminal, because you
would have �reasonable ground� to believe that you are in imminent
danger of death or seriously bodily injury.
Disqualifications
There are a number of situations where your conduct may disqualify you
from being able to use of force or deadly force. As mentioned above, you
must meet four conditions in order to use force or deadly force. If any
of these four conditions are not met, you will not be justified in
using force or deadly force, regardless of whether you may would have
otherwise had the right to stand your ground. There are a number of
situations in which these conditions may not be met. If you fall under
one of the following situations, your use of force or deadly force
against another will not be justified:
- No Imminent Threat : The use of force is not justified if
the threat you are facing is not imminent. For example, if someone
merely verbally insults you 500 feet away, you cannot use force against
them.
- No Provocation: If you provoke the other person into using
force against you, intending to cause bodily injury or death to the
person, your subsequent use of force or deadly force will not be
justified.
- No Initial Aggression: You may not be the initial
aggressor, except your use of physical force against the other person is
justifiable if you withdraw from the encounter and effectively communicate your intent to do so and the other party threatens or continues unlawful force.
- Combat By Agreement: Use of force or deadly force during
agreed combat is not justifiable. Thus, if you engage in a pistol duel
with another person, your shooting of the other person cannot be
justified.
Conclusion
As you can see, the Colorado versions of the "Castle Doctrine" (also
known as "Make My Day") and "Stand Your Ground" laws are extremely
complex and cannot be summarized with simple catch phrases. These topics
consume thousands of pages of legal treatises and continue to be a huge
part of many lawyers' careers, so obviously this article is only a
brief overview. We hope, however, that this newsletter provides you with
a better understanding of both of these legal topics. If you have any
questions about these or other Colorado firearms laws, please do not
hesitate to contact us, and we will be happy to help.
DISCLAIMER
Members and friends please keep in mind that each circumstance may be
different and although this is a general discussion of the law, it
should not be considered legal advice for you or any other situation. If
you have any legal questions make sure you contact a licensed lawyer,
or, members better yet, if you have a question we can get you in contact
with one of our independent firearms program attorneys who will be
happy to answer your firearms questions.
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Featured Seminars: Members, Join Us and Bring a Friend |
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U.S. Law Shield is proud to host informative Gun
Law Seminars and Workshops all over the State of Colorado. Come join us
as our independent program attorneys and firearms experts separate legal
fact from fiction.
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DENVER
Tanner Gun Show
Saturday, November 8, 2014
1 p.m. to 4 p.m.
Cost: $15, registration includes a 2-day pass to Tanner Gun Show
Sign up here!
COLORADO SPRINGS
Whistling Pines Gun Club
Monday, November 10, 2014
5:30 p.m. to 8:30 p.m.
Cost: $35 - use promo code USLS for $25 off registration
Sign up here!
LAKEWOOD
BluCore Shooting Center
Saturday, November 15, 2014
1 p.m. to 4 p.m.
Cost: $10
Sign up here!
CENTENNIAL
Centennial Gun Club
Gun Law Seminar For Educators
Thursday, November 20, 2014
6 p.m. to 9 p.m.
Cost: $10
Sign up here!
LOVELAND
Tanner Gun Show
Saturday, November 22, 2014
Cost: $15, registration includes a 2-day pass to Tanner Gun Show
1 p.m. to 4 p.m.
Sign up here!
COLORADO SPRINGS
Whistling Pines Gun Club
Monday, November 24, 2014
5:30 p.m. to 8:30 p.m.
Cost: $35 - use promo code USLS for $25 off registration
Sign up here!
LAKEWOOD
BluCore Shooting Center
Monday, November 24, 2014
5:30 p.m. to 8:30 p.m.
Cost: $10
Sign up here!
CENTENNIAL
Centennial Gun Club
Tuesday, November 25, 2014
5:30 p.m. to 8:30 p.m.
Cost: $10
Sign up here!
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To view a complete list of seminars and workshops in your area, please go to www.GunLawSeminar.com. We hope to see you at one of our next events!
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