Colorado’s second-highest court, by 2-1, agreed last week that a Jefferson County judge should not have let jurors consider whether a defendant acted in self-defense at a trial that resulted in his acquittal for menacing a police officer.

However, members of the three-judge Court of Appeals panel criticized District Attorney Alexis King’s office for bringing an appeal that would not alter the acquittal, not set a precedent for future cases and focused on an issue that probably did not affect the verdict.

One judge went further, suggesting in dissent that the appeal was so focused on evidence specific to the case that it did not even warrant the court’s consideration.

Jurors at the 2023 trial of Nasser Ismail Al-Jihad heard that Al-Jihad was causing a disturbance at his assisted living facility, which prompted staff to call police. When agents arrived, they learned Al-Jihad had a fake gun. One agent saw Al-Jihad in a fenced-in yard and stuck her head through the gate. Al-Jihad pointed the fake gun at her as he climbed the fence.

Police later arrested Al-Jihad, and he faced charges of felony menacing and obstructing a peace officer. Al-Jihad had told police that he pointed the gun because he thought “maybe this will give me time to run away because I don’t know if they’re going to tase me.”

The defense asked District Court Judge Tamara S. Russell to instruct the jury to decide whether Al-Jihad was acting in self-defense. Only “some evidence” of self-defense is required for an instruction, and the prosecution would then have to disprove at least one element of self-defense beyond a reasonable doubt.

Russell agreed to give the instruction. Jurors acquitted Al-Jihad.

The DA’s office, exercising its right to appeal questions of law, asked the Court of Appeals to decide whether Russell acted properly by giving the instruction. The prosecution argued Al-Jihad never had “any objective, reasonable belief” that the police agent in the yard would use force against him.

“This Court should dismiss the appeal because it does not present a question of law as required,” responded public defender James S. Hardy. “Rather, the District Attorney merely challenges the trial court’s assessment of the evidence,” adding the appeal was a “poor use” of judicial resources.

In a Sept. 18 opinion, the Court of Appeals panel’s majority agreed the evidence did not support a self-defense instruction, as Al-Jihad had no reasonable belief the police agent would use force against him.

“So even if Al-Jihad subjectively believed that he was in imminent danger from someone peeking into the backyard in the middle of the day, no evidence was presented to demonstrate that this belief was objectively reasonable,” wrote Judge Stephanie Dunn for herself and Judge Jaclyn Casey Brown.

However, Dunn continued, because there was no evidence of self-defense, “it would presumably be an easy task to debunk the defense at trial. So even if the instruction shouldn’t have been given, we are unpersuaded that it substantially impacted the trial.”

She further questioned the prosecution’s decision to “expend limited prosecutorial and judicial resources on this appeal,” as it did not change anything. Dunn acknowledged the defense’s argument that the panel should have dismissed the appeal because it pertained to the unique circumstances of Al-Jihad’s case.

“Much as we would like to agree,” she wrote, the law and procedural rules obligated the Court of Appeals to resolve the prosecution’s legal question — which it was doing “reluctantly.”

Judge Karl L. Schock, writing in dissent, was not sure there was a legal question for the panel to decide. Russell’s decision to give a self-defense instruction was based on her assessment of the evidence, which was largely not a legal issue.

“Either there was evidence to support it and it was properly given, or there wasn’t and the jury presumably rejected it. The purpose of an appeal is to correct errors that injuriously affect a party’s rights, not to nitpick every ruling the district court makes along the way,” Schock wrote.

He added that if the Court of Appeals were required to decide “every question of law the prosecution chooses to appeal, regardless of its effect on the case, it places the prosecution on better footing than defendants,” for whom the court is not required to resolve every legal issue.

Schock also believed Russell correctly gave the self-defense instruction. Not only did Al-Jihad say he was concerned about being tased, but the sequence of events suggested it might have been reasonable for Al-Jihad to defend himself.

“I would hold that these circumstances — an unknown and unidentified intruder surreptitiously entering a residential yard through a closed gate — satisfy the low burden of ‘some evidence’ that Al-Jihad’s stated fear of physical force was reasonable,” Schock wrote.

The case is People v. Al-Jihad.