A young man being pursued down the street attempted to evade his attacker, asking to be left alone until the last possible minute, when he killed the aggressor.
The killer could be Kyle Rittenhouse, the then-17-year-old who shot two men and wounded a third in the streets of Kenosha, Wis., following days of racial justice protests and arson in August 2020.
In fact, it was actually Anthony M. Idrogo of Colorado Springs, who fatally stabbed Raymond Archuleta in 1985 after Archuleta and his brother stalked Idrogo from a liquor store.
Idrogo testified he did not want to kill Archuleta, but the man would not leave him alone. When the jury found him guilty of manslaughter and he faced life in prison without parole, the 29-year-old Idrogo cried out, “I haven’t even begun to live yet, and you’re gonna bury me alive.”
That was not the end of Idrogo’s case, as his conviction made it before the Colorado Supreme Court. His trial did not have something that Rittenhouse’s had: an instruction to the jury that under the law, he had no duty to retreat from the encounter. The absence of that statement, the justices said, was wrong.
“The long-established rule in Colorado is that an innocent victim of assault need not retreat before using deadly force if the victim believes the use of such force is necessary for self-protection,” the court concluded, reversing Idrogo’s conviction.
Colorado law, like Wisconsin’s, envisions some killers going free if they acted in self-defense. The protection is even stronger if the killing took place inside a home, under which prosecutors are barred from even bringing charges — thanks to the so-called Make My Day law.
High-profile self-defense trials elsewhere in the country, notably Rittenhouse’s, have prompted some introspection in the legal community, with some advocating abolishing modifying the state’s self-defense regime. Against this backdrop, the Colorado Supreme Court is exploring the physical limitations of Make My Day, particularly whether it extends to a common area in a multifamily residence.
“The Rittenhouse verdict would certainly be permissible under Colorado law, as well,” said Keith A. Findley, a professor at the University of Wisconsin Law School. “That’s not to say it necessarily would be the same, because you could get a different verdict from a different jury even in Wisconsin.”
As unique as the circumstances were that led to the exoneration of a teenager toting an AR-15 and firing upon people, who, prosecutors contended, were only trying to save lives, Colorado’s self-defense doctrine could lead to a similar result. That reality stands in stark contrast for those who view the Rittenhouse verdict as an endorsement of vigilante justice.
“A justice system can’t ‘fail’ if it was never meant to deliver justice for some people in the first place,” said U.S. Rep. Jason Crow in response to the acquittal, calling the outcome a “travesty.”
Across the ideological divide, pro-gun advocates like Dudley Brown, president of the Rocky Mountain Gun Owners, have rallied behind Rittenhouse. Brown’s prominent gun advocacy group raised about $76,000 for the mother of Rittenhouse, and through her, Brown offered Rittenhouse a job in Colorado.
Colorado sides with the majority of states that imposes no duty to retreat from an encounter before using deadly force. While the self-defense law has many components, generally a person is justified in using physical force to defend himself or herself simply if he or she believes an aggressor will use force.
Deadly force, on the other hand, is only appropriate if people reasonably believe they are in imminent danger of significant harm or death — and less lethal force will not stop the threat. It is the government’s job to disprove at least one element of a self-defense claim.
“If we boil down the main elements of self-defense, there are three of them: imminence, necessity and proportionality,” said Ian P. Farrell, associate professor of law at the University of Denver. “The duty to retreat is really part of the necessity element. If it is reasonable for you to avoid the threatened physical harm by leaving, then the idea is physical force is not necessary to repel it because you can just leave.”
Although Colorado’s self-defense law does not actually say there is no duty to retreat, that governing principle, Farrell added, means “the entire public space is a situation where, if you’re not breaking the law, you don’t have to leave, even if that means someone else dies.”
‘No duty to retreat’
Sometimes known as “stand your ground,” the doctrine originated as the “retreat to the wall” defense. The phrase reportedly arose from a 14th-century English case in which another person literally chased a man up to a wall before the man killed his aggressor in self-defense. That view of self-defense, however, called for the victim to use deadly force only as a last resort — when up against the wall.
The recognition by the U.S. Supreme Court of the current doctrine of no duty to retreat has similarly vivid origins — involving the theft of a cow.
Edward Jones was an orphan who went to live with the Beard family in Arkansas around age 8 or 9. He brought with him a cow, which, as a condition of taking in Edward, Babe Beard assumed as his own property.
One day, Edward decided to leave the Beard household and enlisted his older brothers to take the cow with him. When Beard confronted them with a shotgun and told the Jones brothers to leave his property, the eldest, Will Jones, moved toward Beard and made a motion with his left hand as if he were drawing a pistol.
Beard knocked Will over the head with his gun, killing him. Beard later testified that he believed Will Jones intended to shoot him with the pistol Beard found in Will’s pocket. Beard was charged with manslaughter, and the trial court judge instructed the jury to find him guilty if Beard had not used other reasonable methods to avoid using lethal force.
“This great law of self-defense commands him at all times to do that which he can do under the circumstances; to wit, exercise reasonable care to avoid the danger by getting out of the way of it,” the judge explained.
The Supreme Court in 1895 unanimously found that to be a misstatement of the law. In doing so, it pointed to the trend in various state courts, from Massachusetts’ Supreme Judicial Court in 1806 to the Colorado Supreme Court in 1889, recognizing no duty to retreat before resorting to deadly force.
“The weight of modern authority, in our judgment, establishes the doctrine that when a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable,” wrote William E. Niblack of the Indiana Supreme Court in 1877.
He added, almost regretfully, “Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement, or even to save human life.”
Other courts similarly telegraphed their feelings about a shoot-first mentality.
When the Colorado Supreme Court in 1896 reversed the conviction of a Denver police officer who shot Arapahoe County Sheriff’s Deputy Milton Smith in Lower Downtown, ostensibly after the deputy pulled a gun on him, Justice John Campbell looked skeptically on the circumstances that prompted the slaying.
“However improbable the story of the defendant that, to save his own life, he was compelled to take the life of Smith, when he, and a fellow policeman, were engaged in clubbing deceased, with four other policemen visible and within easy call just across the street,” he wrote, “still the defendant had the right to the judgment of the jury upon it, aided by instructions of the court correctly stating the law of self-defense.”
Arnold Hanuman, a former prosecutor who is now with the Colorado District Attorneys’ Council, said people do not weigh their options in the heat of the moment against the statutory criteria for self-defense.
“Most defendants don’t know the letter of the law. That’s why the law talks about what a reasonable person believes,” he said.
‘Recipe for disaster’?
As recently as last summer, the Colorado Supreme Court interpreted the self-defense statute in a case involving a stabbing on a Regional Transportation District bus. The court did nothing to alter the no-duty-to-retreat doctrine itself, but instead explained that prosecutors are barred at trial from even mentioning an obligation to retreat.
“(N)o appellate court in Colorado (at least in a published opinion) 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,” Justice William W. Hood III wrote in the court’s majority opinion.
In addition to citing case law, Hood unusually turned to a different source of authority: neurobiology. He quoted from Karin Roelofs, a professor and researcher in the Netherlands, who looked into the mechanisms that affect the largely uncontrolled fight, flight or freeze reflexes.
A defendant’s “decision to retreat is no more proof that she faced an imminent threat of unlawful force than a decision to remain and fight,” Hood concluded.
In that sense, Colorado’s prohibition on mentioning an obligation to retreat represents an even stronger endorsement of defensive force than under Wisconsin law. The instructions for Rittenhouse’s jury, by contrast, allowed jurors to consider the feasible opportunities Rittenhouse had to disengage. The prosecutor also argued to that effect, saying there was “a huge open space in that lot where the defendant could have circled back around” and that he “has to exhaust all reasonable means of escape before killing.”
There is an exception in Colorado to the right to stand one’s ground in self-defense. That defense no longer exists for someone who provokes another person’s use of physical force, or if someone is the initial aggressor and fails to back out of the confrontation.
Elizabeth McClintock, a criminal defense lawyer in Colorado Springs, said the initial aggressor exception can be the biggest hurdle in arguing self-defense.
“A lot of time, the evidence comes out and it ends up showing the defendant was the aggressor,” she said. McClintock estimated she has invoked the self-defense statute at least 50 times on behalf of clients, and she supports the law as written. She believes that outlier cases, such as Rittenhouse’s, should not be grounds to doubt the license, in certain circumstances, to legally kill.
“We hear an awful lot more on TV than what a jury actually hears,” she said. “And so we really shouldn’t criticize juries when they make a decision because they only heard the evidence the court allowed them to hear.”
Farrell, the DU professor, said that scrapping stand-your-ground laws and imposing a duty to retreat outside of the home would, in fact, be a change for the better. It would also reduce the likelihood of racial disparities in use of force, given research that documented a perception that Black people are more physically threatening.
“When you combine stand-your-ground laws with the fact that there are more guns in America than people, that’s a recipe for disaster,” he said.
Inside the home
Before the recognition under American law of no duty to retreat, English common law provided one exception under which a person need not back down from an encounter: in his home.
Known as the “castle doctrine,” under the theory that a man’s home is his castle, Harvard University lecturer Caroline Light has argued that self-defense laws, including no duty to retreat outside the home, took on more significance during the Reconstruction era to chiefly protect white, property-owning men.
In 1985, the Colorado General Assembly passed House Bill 1361, known as the Home Protection Bill. Its more popular nickname, however, stemmed from a line in a Clint Eastwood movie released a few years earlier: the “Make My Day” law.
“Sometimes, blowing dirtballs away is the reasonable thing to do,” said one legislator.
Make My Day provides that residents have a right to expect “absolute safety” in their homes and can therefore use “any degree of physical force, including deadly physical force” when an unlawful intruder is committing or may commit a crime. The law goes far beyond giving home occupants a defense if they use force — it grants upfront immunity from civil liability or criminal prosecution, as long as they reasonably believe the intruder may use force, “however slight.”
Prosecutors had negotiated that language with the sponsors, believing they were merely writing into law the practice of not charging homeowners who shot intruders in the middle of the night, which was the scenario most discussed in the legislature.
In practice, it’s a different story.
Researcher William Wilbanks examined the first 23 cases under Colorado’s Make My Day law. The circumstances involved disputes between friends, police altercations, love triangles and drug deals. None of them involved a midnight break-in. The state’s prosecutors had, in fact, given immunity for a range of deadly encounters.
The cases began piling up: A man went uncharged in El Paso County after stabbing a former friend 32 times in his apartment. A district court dismissed the assault charge against an Idaho Springs man who beat up an officer who was attempting to check on a baby, all the while saying, “You’re in my house and I can do whatever I want to you.”
In 1987, the Colorado Supreme Court reinstated a dismissed case and clarified that Make My Day provided immunity from the start, and not merely an argument for the defense to use at trial. The case involved David Guenther of Northglenn, who shot from his doorway into his yard where neighbors were physically fighting his wife. Guenther killed Josslyn Volosin in the dark.
At the time the trial court judge dismissed the case, he called Make My Day “the most ill-considered statute the court has seen.”
The Supreme Court’s ultimate ruling to revive Guenther’s murder case came three months after Guenther murdered his wife in a separate incident that did not involve self-defense.
Rau and McNeese
Courts looking at Make My Day have been asked to weigh in on the dual questions of where, precisely, it is permissible to use deadly force and when it is permissible.
To the first issue, the state Supreme Court is currently examining the physical limitations of Make My Day.
While the law applies to a dwelling, it is unclear if the common areas of a multifamily building fit that label. A 1993 decision from the state’s second-highest court said they do not, but Patrick Rau is now arguing that if the basement of a single-family home is covered under Make My Day, the occupants of a multifamily residence should receive that same protection.
In Rau’s case out of Colorado Springs, his girlfriend informed him there was an intruder in the apartment building’s basement. He took his gun and flashlight downstairs and found a sleeping Donald Russell. According to Rau, he told Russell to leave or he would use force. Russell reportedly became angry and began throwing objects. Rau allegedly feared for his life, warned Russell he would shoot after counting to five, and then followed through.
Russell died, and there is no way to know his side of the story.
Billed as an “intruder” case of the variety the Make My Day proponents envisioned, it turned the concept of the armed interloper sneaking up on the sleeping homeowner on its head.
The district attorney’s office acknowledged to the Supreme Court that Rau got lucky in guessing Russell did not belong in the basement. However, it is asking the court to allow the prosecution to proceed, for fear that opening up common areas of buildings to the Make My Day immunity would allow for wanton shootings of unfamiliar faces, who, in fact, have a right to be there.
But the right to use deadly force even in an area that clearly qualifies as a dwelling is not unlimited, and the 1995 case of Robert Earl McNeese showed that the judiciary can disagree on how to apply the law to defensive force.
McNeese, who is Black, allowed Vivian Daniels to stay at his apartment because of a conflict with her husband, John Daniels. As part of the arrangement, John was not allowed into the apartment, as McNeese heard he was violent, had killed another man and did not like Black people.
In November 1991, McNeese and Vivian Daniels agreed she should move out after an uncomfortable sexual encounter. When Vivian returned home and told her husband, he and another man decided to go with her to McNeese’s apartment to retrieve her possessions. All of them had been drinking, the men heavily.
When they entered McNeese’s apartment, they split up, only for Vivian Daniels to find her husband choking McNeese and threatening to kill him. The altercation broke up, but Vivian later saw John Daniels and his friend lying dead on the floor. McNeese stabbed her and she ran out.
A majority of the Colorado Supreme Court agreed that McNeese did not qualify for Make My Day immunity because he failed to show a belief that John Daniels committed or intended to commit a crime other than entering unlawfully.
“The statute was not intended to encourage arbitrary, casual killings,” Justice William H. Erickson wrote.
Justice Gregory Kellam Scott vigorously disagreed, finding McNeese had every reason to think John Daniels would hurt him, given his reputation for violence and his prohibition from entering from the property.
“Evidence admitted without objection indicated that … John Daniels immediately stated, ‘Well, let’s go kill that (N-word),’ and went to McNeese’s apartment, after 2 a.m., to cause him harm,” wrote Scott, the only Black member in the Supreme Court’s history.
This case, he added, was the precise intruder scenario the General Assembly had invoked when passing Make My Day — and the court’s majority had now decided McNeese was not actually entitled to “absolute safety” within his home.
Reasonable for all circumstances?
Defense attorneys, prosecutors and academics agreed that self-defense law is complicated, and requires jurors — divorced from potentially useful background information — to ask what a reasonable person in the defendant’s position would do.
“Just having the jury know this is someone who gets in fights or this is someone who carries a weapon generally, that’s probably not the information the jury will have,” said Adrian VanNice, chief trial deputy for the Boulder County District Attorney’s Office.
She indicated she would ideally like to impose a duty to retreat if safe before using deadly force.
“It makes sense to try and run away if you can, because taking another life is a horrible thing,” VanNice said. “I think many of us have felt threatened in our lives. I’m sure there are times in my life when I’ve felt threatened, when I’ve felt at risk or in danger. But nothing has ever come of that moment for me.”
The legislature has made tweaks to the law over the years. A 2020 change to the self-defense statute precludes people from arguing self-defense if the victim makes an unwanted sexual advance or discloses their sexual orientation. (The so-called gay-panic defense was something the killers of Matthew Shepard in Wyoming attempted to assert.)
Lawmakers also revised the Make My Day law in 2016, clarifying it does not apply to prisoners who try to defend themselves.
Findley, the Wisconsin law professor, would also prefer an abolition of the no-duty-to-retreat doctrine, but not because of something inherently wrong with the principle.
“The problem that I see, to be honest, is the combination of self-defense laws with very, very liberal rights to openly carry powerful firearms in volatile situations,” he said. “Once you put those two together, the law tells us that it’s OK, that it’s lawful to go to a racially charged, politically divided, very volatile public protest carrying a semiautomatic weapon.”
By imposing no duty to retreat in Colorado, Findley added, “the Supreme Court sounds like it has decided, as a matter of law, what is reasonable for all circumstances.”
This content was originally published here.