By H. Michael Steinberg Colorado Criminal Defense Lawyer
Introduction – No Duty to Retreat to the Wall – Right to Stand Your Ground
In a recent case, People v. Sheila Renee Monroe, the Colorado Supreme Court reversed a guilty verdict in a homicide case because the prosecutor argued, in response to the defendant’s assertion that she acted in self-defense, that the defendant had a duty to retreat before using deadly force.
The Monroe case reaffirmed the strength of Colorado’s “no duty to retreat rule” when confronted with violence. The prosecutor repeatedly argued Ms. Monroe had “an unused avenue of retreat” available to the defendant, and therefore the force being used upon her could not have been “imminent” and therefore she should be denied her right to self-defense,
The Colorado Supreme Court summed up the case in one paragraph:
To allow the prosecution to argue that a defendant’s failure to retreat undermines the reasonableness of that defendant’s self-defense claim would cripple the no-duty-to-retreat rule.
[N]o appellate court in Colorado…. has permitted argument regarding an unused avenue of retreat, even if offered only to attack the reasonableness of a defendant’s use of force. And we decline to do so today.
We hold that the prosecution may not argue that a defendant acted unreasonably in self-defense because she failed to retreat from an encounter,
Colorado’s Historic “No Duty to Retreat Rule”
The Monroe case reminds us, once again, in stark contrast to many other states, that Colorado is a “no duty to retreat” state.
Colorado’s “statutory privilege” to use physical and deadly force in defense of a person is found at Section 18-1-704 under the heading Justification and Exemption from Criminal Responsibility, and reads as follows in its entirety:
18-1-704 – Use of Physical Force in Defense of a Person
(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or
(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or
(c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.
(3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:
(a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or
(b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
(4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense.
If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner.
However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes.
Summary of Colorado’s Self Defense Law:
Section 18-1-704 defines the circumstances under which a person may use physical force, including deadly force, in self-defense.
A person’s use of deadly force is justified only if:
[T]he person reasonably believes that a lesser degree of force is inadequate,
and either:
(a) the person has reasonable grounds to believe, and does believe, that he or another person is in imminent danger of being killed or receiving great bodily injury;
(b) the other person is using or reasonably appears to be using physical force against someone while committing a burglary; or
(c) the other person is committing or reasonably appears about to commit kidnapping, robbery, sexual assault, or assault.
Colorado’s self-defense statute is consistent with a very old common law “no duty to retreat” rule that traces its history back to the year 1868.
English common law, upon which much of our legal system has been built, DID require a person to “retreat to the wall” before using deadly force in self-defense. Under English common law the “retreat to the wall” doctrine held that a person is entitled to employ deadly force in self-defense only if the person demonstrated that no reasonable means of escape existed at the time he killed his assailant.
The duty to retreat was very strict under the British system – a person could use deadly force in self-defense only after exhausting every chance to flee … only when ‘his back was to the wall.’
While Colorado has chosen a very different path, a significant number of American jurisdictions still apply variations of the “retreat to the wall” rule in self-defense cases.
The “True Man” Doctrine
The “no duty to retreat” rule, has also been referred to as the “true man” doctrine for the use of physical force in self-defense.
A “true man” or a “true person,” is someone who is without fault, and therefore does not have to retreat from an actual or threatened attack even if he could safely do so before the person may use physical force in self-defense.
The “true person” does not have to make the calculation of whether a reasonable person in the situation he or she finds themselves in would opt to retreat to safety rather than resorting to physical force to defend against unlawful force.
The “true person” doctrine applies when:
1) A defendant is “without fault in provoking the confrontation;”
(2) A defendant is “in a place where he has a lawful right to be;” and
(3) A defendant has a reasonable fear that the person is about to cause the defendant immediate serious bodily harm or death.
The best summary of the true man doctrine is found in the case of Boykin v. People, 22 Colo. 496, 504, 45 P. 419, 422 (1896).
But where a defendant is where he has a right to be…..and is assaulted by the deceased in a way:
…that the defendant honestly and in good faith believes, and the circumstances being such as would induce a like belief in a reasonable man,
…that he is about to receive at the hands of his assailant great bodily harm, or to lose his life, the defendant, if he did not provoke the assault, or is not within some of the exceptions above noted, is not obliged to retreat or flee to save his life, but may stand his ground, and even, in some circumstances, pursue his assailant until the latter has been disarmed or disabled from carrying into effect his unlawful purpose;
… and this right of the defendant goes even to the extent, if necessary, of taking a human life.
Four Categories of Persons
Section 18-1-704 establishes four categories of persons with respect to the right, the “privilege” of using physical force in self-defense under Colorado law. The first three are denied the privilege:
I. People who Provoke the Altercation
People who with the intent to cause bodily injury or death provoke the use of force against themselves may not claim self-defense;
2. People Who Engage in Mutual Combat
People who engage in unauthorized combat by agreement may not claim self-defense;
3. People Who Are “Initial Aggressors”
People who are “initial aggressors,” and fail to “withdraw and communicate,” that is, “retreat,” may not use physical force in their own defense;
4. People Who Meet the Requirements of Colorado’s Law of Self Defense
People who do not fall within these three groups may use physical force, including deadly physical force if they meet the requirements of the law.
Limitations on the No Duty to Retreat Rule
In the Boykin case, the Colorado Supreme Court recognized that there were limitations on the “no duty to retreat” rule:
There are, doubtless, cases where it is the duty of the party assaulted to retreat to the wall before taking human life, as, for example, where the case is one merely of simple assault, or where the parties engage in mutual combat, or where the defendant is the assailant and has not in good faith declined further struggle before resorting to self-defense, or has provoked the assault with intent to commit a felony…
Here is a link to an article I recently wrote on the exceptions to the successful assertion of the right to self-defense, so this section is intentionally short.
In a Place, You Have No Right to Be
Many jurisdictions that adhere to the “true man” doctrine include the requirement that the doctrine requires that the stand your ground or no duty to retreat is conditioned on the person asserting self-defense was in a place he or she had the “right to be.” This is an element of the privilege itself.
One such state is Florida. Following the successful assertion of Florida’s Stand Your Ground defense by George Zimmerman in the death of Trayvon Martin, the Florida law was thrown into the national spotlight.
Here are the relevant sections of Florida’s self-defense law:
776.012 Use or Threatened Use of Force in Defense of Person
…
(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.
A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
Now, let’s compare Colorado’s law:
Colorado’s Stand Your Ground Law Does Not Require Being in a “Place You Have the Right to Be”
While Colorado has used and has approved language similar to the “right to be” language in the Florida statute, Colorado has never conditioned the application of the no duty to retreat rule on being in a place where he has a right to be.
The statute contains no indication that a person who is not where he has a right to be must retreat before using physical force in self-defense.
This makes sense. Under Colorado law, non-aggressors have no duty to retreat. A non-aggressor and is entitled to use deadly physical force in self-defense and need not “retreat to the wall” before using such force, …. whether or not the person is where he has a right to be.
To illustrate the point, Colorado law does not require trespassers to retreat to the wall before using defensive physical force. A person who is not where he has a right to be in many instances retains the privilege to use force in self-defense irrespective of his status as a trespasser.
Victim of an Attempted Robbery: Consider the case of a victim of an attempted robbery. The victim is forced by the robber to flee onto a third person’s property and there decides to resort to physical force against the would-be robber. There is no prohibition under Colorado law, that deprives the robbery victim of the privilege to defend himself simply by the act of trespassing onto the property of a third person.
Summary – Colorado Self Defense Law – No Duty to Retreat
The right to self-defense is deeply rooted in Colorado’s state history and its laws. The “no duty to retreat rule” is consistent with the focus of any analysis of a claim of self-defense – the law views the defense from the point of view of the person being attacked.
Colorado’s “no duty to retreat law” sometimes referred to as a “line in the sand” or a “stand your ground” law, provides additional protection to the citizens of the state which is totally consistent with the state’s history of the rights of the individual.
Finally, our state goes much further than many other states and does not impose a condition precedent that the “self-defender” be at a location where he or she has a right to be.
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Never stop fighting – never stop believing in yourself and your right to due process of law.
When you searching for the right lawyer and trying to make the most responsible choice, we encourage you to look at our firm. Over the last 35 plus years, H. Michael has studied and written about nearly every area of criminal law, criminal procedure, trial, and courtroom practice. He is passionate about getting the best result in each of the cases he defends. By studying the law and writing these articles, he hopes to not only master the law but help you in your understanding of your case in some small way.