June 23, 2019 — In the public’s mind, it may be simple — a threat to one’s safety allows use of force, from Colorado’s “Make My Day” law, to other states’ “stand your ground” provisions.
People have used “self-defense” as a basis for escaping prosecution or punishment for what would otherwise be assault, or even murder, in turn generating cases that have spawned appeals and established legal precedent.
“It’s a huge issue. It’s very common that, with ‘self-defense’ in particular, there are affirmative defenses we wrestle with a lot and it causes a lot of issues,” District Attorney Dan Hotsenpiller said.
To begin with, the state law is not actually titled as “self-defense.”
“We’re talking about justification for committing a criminal act. They have assaulted someone; they have killed someone,” Hotsenpiller said. “The question is, was their action justified? The law says that by asserting ‘self-defense,’ the defendant is admitting the acts.”
What is ‘imminent’?
A recently concluded case in the 7th Judicial District speaks to how complicated “self-defense” can be.
On May 13, Gunnison-area rancher Deborah Rudibaugh pleaded guilty to murdering her son, Jacob Millison, in 2015 and was sentenced to 40 years in prison. (Others have been charged in the death; their cases have not resolved.)
Rudibaugh claimed her son was abusive, becoming more violent toward her, and that she was afraid — but when she fired a gun into the back of his head, Millison was sleeping.
Further, prosecutors and witnesses strongly disputed Rudibaugh’s characterization of Millison.
Her bid to have a jury consider self-defense as justification was denied: In Colorado law, an important, yet not always well-defined, term is “imminent” risk.
Chief District Judge J. Steven Patrick in an April ruling found Rudibaugh could not have a jury instruction for self-defense. The law requires imminent use of unlawful physical force by another, creating a reasonable belief that force in return is necessary, Patrick found.
A person can only use deadly force if he or she reasonably believes a lesser degree of force is inadequate and has reasonable grounds to believe — and does believe — that he/she or another is in imminent danger of death or severe bodily harm, per the ruling.
Patrick cited a 2009 case, Kaufman v. People, which suggested a jury must consider the totality of the circumstances, including a defendant’s perception, in evaluating the reasonableness of the defendant’s belief that defensive action was needed.
However, for Rudibaugh, the most similar fact pattern was found in the case People v. Yaklich, Patrick said.
In that case, the defendant, Donna Yaklich, hired two men to kill her husband, claiming he was abusive. She was acquitted of murder, but convicted of conspiracy; according to published reports, Yaklich was paroled in 2005.
“Imminent’ has not been expressly defined by statute or by Colorado case law in the context of self-defense,” a 1991 state Supreme Court ruling in the case stated.
“However, self-defense instructions are usually allowed when an accused has been faced with a threat of great bodily injury or death contemporaneously with the killing.”
Yaklich argued she suffered from battered woman syndrome and also that “imminent danger” does not always mean immediate danger; instead, it means danger is likely to occur.
The court said even if that were true, self-defense is not an available defense in a murder for hire case. Per the ruling: no other court at the time had held a battered woman is entitled to argue self-defense in such cases; giving a jury an instruction concerning self-defense in contract killings would “undermine ancient notions of self-defense which originated in the common law and were later codified in Colorado law.”
Further, the court said Yaklich’s participation in the murder plot was not peripheral; had it not been for her, the killers would not have committed the crime.
The Colorado Supreme Court concluded “a self-defense instruction is not available in a contract-for-hire situation, even though the accused presents credible evidence that she is a victim of the battered woman syndrome.”
Rudibaugh’s attorney Randy Canney in his argument cited cases in New Mexico and other states where self-defense was allowed in instances where a sleeping person, or person who was no immediate threat, was killed.
Patrick in his ruling enumerated other cases, though, in which the opposite conclusions were reached, including a North Carolina Supreme Court finding that a defendant was not in imminent risk at the time she shot her reportedly abusive husband as he slept.
Patrick concluded Rudibaugh did not show urgency or necessity and there was no imminent threat or danger when she shot Millison. “There are less drastic alternatives available to her,” his April ruling stated.
The legal standard for raising affirmative defenses calls for some level of credible evidence, but even “a scintilla” might be enough, Hotsenpiller said.
It does not matter whether a potential defendant’s version of events is unbelievable; if that person asserts a scenario of self-defense, that becomes an affirmative defense, he said.
“The defendant has to present only a very little bit of evidence that might justify a criminal act because of self-defense and then the People have to disprove the defense beyond a reasonable doubt,” Hotsenpiller said. That is, prosecutors not only have to prove the criminal act, but that it was not justified.
Hotsenpiller said “self-defense” is often raised in Colorado, in part because the standard for doing so is low.
“These defenses are defined by our statute. They are specifically defined. There are numerous of them,” he said.
People may be found to have acted in self-defense when, for instance, they use physical for to defend a third party; when they use deadly physical force against an intruder; when they use physical force in defense of premises or property — or, for officers, in making an arrest or preventing an escape.
Within these, and other defined instances of an affirmative defense, rest numerous subsections of statute.
“It’s actually a very complicated area of law,” the district attorney said, pointing to Rudibaugh’s case. “There are a lot of different ways to raise this defense. They all have that same ambiguity.”
The same legal reasoning comes into play when the 7th Judicial District Attorney’s Office reviews the cases in which a sworn peace officer has used force or deadly force against a suspect. Hotsenpiller can bring charges against even officers, if there is evidence their actions were not statutorily justified.
His most recent review cleared a Colorado State Patrol trooper, who in November shot and killed a DUI suspect. The man had pulled a loaded pistol, pointed it at his head, lowered the gun, but then cocked the hammer and began to raise it again, according to Hotsenpiller’s findings from the evidence presented.
In other instances, Hotsenpiller has dropped charges after the possibility of self-defense arises. Last year, he dismissed the manslaughter case against a Peach Valley man was dismissed, because his office could not make a charging decision consistent with applicable standards.
The former suspect had allegedly caused the death of another man during a struggle the second man initiated.
‘Make My Day’
Colorado’s law allowing deadly force against an intruder may seem cut-and-dried. It’s even known more broadly by a name straight out of Hollywood: Make My Day.
But, like other defenses, it is complicated.
“(It) is an unusual defense in that, first, it can be used as a sword, if you will, not just a shield,” Hotsenpiller said.
That means it can actually prevent a prosecution, not just afford someone with a legal justification for using force against an intruder. It can also be used as an affirmative defense (the “shield”) in the event a person cannot establish immunity from prosecution. Prosecutors then have to prove it was not justified.
“That’s the only statute I know of in Colorado that works that way,” the DA said.
“Make My Day” requires unlawful entry into a home before it can be invoked.
“That isn’t a matter of what the homeowner thinks is going on, or believes is going on. In fact, it must be an unlawful entry. If you make a mistake, and it’s your husband coming home late, and not an intruder, no matter how much you think that person was an intruder, you don’t get to take advantage of Make My Day,” Hotsenpiller said.
Further, the person who uses force against an intruder needs to show a reasonable belief: that the intruder has committed a crime in the home, or intends to do so, and that the intruder will use some sort of physical force, no matter how slight, against any occupant of the dwelling.
“It’s a lot harder to make this showing than it might initially seem,” said Hotsenpiller.
He offered the example of coming home to find someone in the act of burgling it.
The scenario checks some important boxes: the burglar is obviously an intruder and obviously committing a crime. However, in this scenario, the burglar thought the homeowner was gone and did not, therefore, intend to use physical force against an occupant.
“It’s not just that somebody’s in your house uninvited,” Hotsenpiller said.
If during the same scenario, however, the intruder behaves in a threatening manner, that could change the situation.
Although Make My Day applies in specific circumstances, “reasonable belief” can be a basis for asserting self-defense.
“The fact is, you can be mistaken, but you must have reasonable belief,” Hotsenpiller said.
People can, for instance, open fire thinking someone is pointing a deadly weapon at them or another person, only to learn it’s a squirt gun, a pellet gun, or even another object they mistook for a firearm capable of killing them.
“The law doesn’t say you have to be 100 percent correct. Your belief has to be reasonable. Would a jury evaluate it from an objective standpoint (and conclude the same)?” Hotsenpiller said.
“The concept is one of necessity. The law is trying to get to was it really necessary for you to use force, especially deadly force?”