The state’s second-highest court on Thursday overturned a man’s conviction for disarming a police officer, determining that Colorado law does not classify batons in the list of objects covered under the disarming offense.

At the same time, the three-judge panel for the Court of Appeals upheld Jeremiah A. Tomaske’s conviction for attempting to disarm a police officer. The panel concluded that Tomaske was not justified in physically defending himself in his home, even though police had chased him inside and used force on him.

While Colorado’s “Make My Day” law authorizes physical force against an intruder who has committed a crime in addition to unlawful entry, Judge Stephanie E. Dunn noted in the panel’s opinion that “excessive use of force is not, standing alone, a substantive crime.”

On May 12, 2018, Montrose police officers were dispatched to Tomaske’s house after receiving a report that Joshua Tomaske – Jeremiah Tomaske’s brother – had allegedly stolen a car. Although they saw that the vehicle had, in fact, been returned by the time of their arrival, the officers proceeded to the backyard of the house and encountered Jeremiah Tomaske.

Officer Jonathan Roberts asked if Tomaske was “Joshua,” to which Tomaske responded in the negative. He then informed officers that they lacked legal authority to be there and ran into his house.

Immediately, Roberts followed Tomaske inside. The police account from the time, as reported in The Montrose Press, did not mention that police had entered Tomaske’s home, and instead claimed that Tomaske “adopted a fighting stance” and “charged.”

A trial court judge later found that Roberts had tackled Tomaske, inflicting pain. Tomaske attempted to defend himself, ultimately pulling Roberts’ baton out of his duty belt and grabbing, though not removing, Roberts’ gun. Tomaske denied that he was trying to “do anything specific” with his hands.

Prosecutors charged Tomaske with second-degree assault on Roberts, obstructing a peace officer, disarming a peace officer and attempting to disarm a peace officer. The latter two charges pertained to Roberts’ baton and gun, respectively. Shortly before trial, the Colorado Supreme Court ruled that evidence from the encounter could be used against Tomaske, even though the police had unlawfully entered his home. 

Tomaske opted to have County Court Judge Zachary Martin decide his case, and Martin acquitted Tomaske of the assault and obstruction charges in June 2019. Finding Tomaske guilty of the two remaining offenses, he sentenced Tomaske to three years in prison for the felony of disarming a peace officer, and to 18 months for the attempted disarming.

On appeal, Tomaske pointed out that the law against disarming police officers, as written, applies to a “firearm or self-defense electronic control device, direct-contact stun device, or other similar device.” While Tomaske’s conduct may have violated some other law, he argued, it did not violate this one.

The government conceded that the legislature, in enacting the law, focused on Tasers and electronic devices. But the “object sought to be attained by bill – protecting the safety of officers,” wrote Assistant Attorney General Grant R. Fevurly, “weighs in favor of a more expansive interpretation of the phrase to include items such as batons that, if disarmed, could endanger the officer.” 

The appellate panel sided with Tomaske. The key phrase in the law was “other similar device,” which Dunn explained meant devices that are similar to electronic control or stun weapons.

“Because police batons don’t have ‘characteristics in common’ with and aren’t ‘very much alike in substance or essentials’ an electronic control or direct-contact stun device, batons aren’t ‘other similar devices’ under the disarming a peace officer statute,” she wrote in the May 19 opinion. 

The panel vacated Tomaske’s disarming conviction, while adding that its opinion did not necessarily implicate police batons that do use electricity.

The appellate judges declined to throw out Tomaske’s other conviction. To take advantage of the Make My Day law that protects home occupants from prosecution, Tomaske had to show he had a reasonable belief that Roberts, in addition to entering his home uninvited, was committing or intended to commit another crime.

Martin, the trial judge, concluded that Tomaske had a belief that Roberts would use excessive force against him, but that excessive force by police is not automatically a crime.

He explained that officers may use “some degree of force to apprehend a fleeing suspect without it being an assault.” Consequently, Tomaske could not have reasonably believed Roberts was committing a crime, Martin wrote, “however mistaken or excessive the actions of Ofc. Roberts may have been.”

The appellate panel upheld Martin’s analysis and agreed that Tomaske had not proven all of the components of the Make My Day defense.

The case is People v. Tomaske.