A man who killed a homeless intruder in his apartment building is entitled to immunity under the law that allows for deadly force in the face of perceived threats, the Colorado Court of Appeals ruled on Thursday.

Colorado’s “make my day” statute permits the occupant of a dwelling to use deadly force against someone who unlawfully enters if they are committing – or intend to commit – a crime. The resident is immune from civil or criminal liability if he or she “reasonably believes that such other person might use any physical force, no matter how slight.”

Patrick Rau and his girlfriend lived in a multi-unit building in Colorado Springs. In January 2017, Rau’s girlfriend noticed that the basement door was open and told him that a homeless man may be inside. Rau took his gun and a light to the basement, where he found a sleeping Donald Russell.

After Rau nudged him awake, Russell became belligerent – throwing objects around the room. Rau said he would “count to five” and then shoot if Russell did not leave. Rau followed through and fatally shot him.

Prosecutors charged Rau with second degree murder, but he sought immunity under the “make my day” provision. A district court agreed, but prosecutors appealed, arguing that the basement was not a “dwelling” covered under the law.

Judge Diana Terry, writing for the appellate panel, cited a 1982 Colorado Supreme Court decision that deemed a garage to be a “dwelling” in a burglary case. A dwelling was therefore a building that is used or intended to be used for habitation, and does not exempt common areas from its definition.

“Although the basement was uninhabitable and was accessible to all tenants of the building, it was nonetheless part of the building that was used by Rau for habitation,” Terry wrote. “The basement was the only place where Rau could adjust the heat and water controls for his apartment, and therefore it involved uses that were ‘incidental to and part of the habitation uses of the residence itself.'”

The court explained that under the “make my day” rule, defendants had to show that a person made unlawful entry into a dwelling, giving the defendant a reasonable belief that they had committed or were intending to commit a crime. Defendants must also believe that the intruder might use physical force against an occupant of the dwelling. Prosecutors believed there was insufficient evidence that Russell was about to use force against Rau, or that Rau was reasonable in thinking Russell committed a crime other than the unlawful entry.

The El Paso County trial court concluded that “clearly we have an intimidation at that point in time” because the two men were “five to six feet apart…in a dark basement.” The appeals court affirmed that finding.

“The detective who interviewed Rau following the incident testified that Rau told him that when he warned D.R. to leave, D.R. became more aggressive and started to yell and throw things,” Terry wrote, referring to Russell by initials. “Rau was scared that D.R. was going to charge at him. The detective also testified that Rau believed that D.R. was using drugs because Rau found drug paraphernalia in and around the basement when he went to confront D.R.”

Qusair Mohamedhai, a partner at Rathod | Mohamedhai in Denver, pointed out the irony of prosecutors pursing charges in a private citizen’s use-of-force case while police officers generally receive qualified immunity for deploying deadly force in a similar fashion.

“When it involves law enforcement, like with De’Von Bailey, they will, in a grand jury, present the affirmative defense of a police officer in a very aggressive way. So it’s the double standard that prosecutors have,” Mohamedhai said, referencing the black teenager whom Colorado Springs police killed in 2019. “This is how the system is different for police officers and for people.”

Aya Gruber, a law professor at the University of Colorado, said that the “make my day” law “is telling people not to exercise compassion or reason by calling the proper authorities, but instead to kill.”

“Unlawful entry – what this unhoused person did – is a misdemeanor offense, and one would think it does not deserve the death penalty.  The George Floyd protests have shown that Coloradans do not think minor crime enforcement is worth taking a life,” she explained. “The wording of this law is not an accident.  The legislature meant to give people in their homes broad authority to kill.”

The case is People v. Rau.

This story has been updated.