A defendant cannot avail himself of the immunity Colorado law affords those who use lethal force against home intruders, the state Supreme Court ruled on Monday, because his victim was not inside any “dwelling” when he fired the shots.

Joseph M. Howell stands accused of attempted murder and other charges. In February 2023, a man allegedly came to the ground-floor apartment in Denver where Howell lived with his mother. The man was reportedly acting “wild” and “threatening.” At one point, the man stepped onto the concrete pad separating apartment complex’s yard from Howell’s door. From the apartment, Howell shot the man in the face through a barred, closed security door.

In response to the criminal charges, Howell invoked Colorado’s “Make My Day” law, which permits people to use “any degree” of force — even deadly force — against an intruder. Immunity kicks in only in a “dwelling” and when a home occupant believes the intruder is about to commit another crime.

District Court Judge Adam J. Espinosa believed the porch just outside the front door was not part of the “dwelling,” thereby defeating Howell’s attempt to claim immunity.

“I’m not sure that the legislature intended to give absolute safety outside of our home. And I think that’s what the defense is asking me to find,” Espinosa said.

Howell appealed directly to the Supreme Court, arguing the concrete pad was “so closely tied to the building” that, for purposes of immunity, “it is the building.” He asked the court to consider a scenario in which a home occupant’s front door opened not to an open-air courtyard, but to the hallway of a multi-unit building.

“The legislature intended to provide absolute safety to every person in their own homes, whether that home opened to an enclosed space or not,” wrote public defender Christopher Smallwood.

However, the Supreme Court agreed with Espinosa. Chief Justice Brian D. Boatright, in the June 17 opinion, noted the Make My Day law explicitly recognizes the right to be safe “within” one’s home.

“By statutory definition, a ‘dwelling’ must be a ‘building,’ and a ‘building’ is ‘a structure which has the capacity to contain,'” he wrote. “Howell’s mother’s doorstep is outside of her apartment. The doorstep is an ungated concrete slab with no roof and no walls. Thus, a person standing on the doorstep is outdoors, fully exposed to the courtyard and the street. Because the doorstep has no roof, walls, or gate, it does not have the capacity to contain.”

Therefore, Boatright concluded, the concrete slab was not a building and Howell had no immunity from prosecution.

The case is People v. Howell.