People v. Rau

• Decision Date: 10 January 2022
• Docket Number: Supreme Court Case No. 20SC583
• Citation: 501 P.3d 803
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Patrick RAU, Respondent.
• Court: Colorado Supreme Court

501 P.3d 803

The PEOPLE of the State of Colorado, Petitioner,

v.Patrick RAU, Respondent.

Supreme Court Case No. 20SC583

Supreme Court of Colorado.

January 10, 2022

Attorneys for Petitioner: Michael J. Allen, District Attorney, Fourth Judicial, District Doyle Baker, Senior Deputy District Attorney, Colorado Springs, Colorado

Attorneys for Respondent: The Bussey Law Firm, P.C., Timothy R. Bussey, Colorado Springs, Colorado

en banc

JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE BERKENKOTTER joined.

JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 Colorado's so-called Make My Day law, section 18-1-704.5, C.R.S. (2021), addresses the justified use of force against intruders in the home. The statute's nickname stems from a line in the film Sudden Impact. See People v. Alaniz, 2016 COA 101, ¶ 1 n.1, 409 P.3d 508, 510 n.1 (noting the nickname's origin). In one notable scene, a fictional police inspector known as "Dirty Harry" points his gun at a robber in a coffee shop and says, "Go ahead, make my day," seemingly "daring the suspect to give him an excuse to shoot." Dirk Johnson, Colorado Journal ; ‘Make My Day’: More Than a Threat, N.Y. Times, June 1, 1990, at A14. Although section 18-1-704.5 was originally called "The Home Protection Bill," its nickname was coined as the bill made its way through the legislature. See William Wilbanks, The Make My Day Law: Colorado's Experiment in Home Protection 1 (1990). The media then popularized the nickname as a way to describe, and perhaps criticize, the new legislation's broad protection.¹ Id.

¶2 But the nickname is a misnomer. Though wide-ranging, the statute's safe harbor in no way permits an occupant of a dwelling to, à la Dirty Harry, egg on intruders to do something so as to have an excuse to shoot them. Thus, while the catchy nickname has stuck around, our preference is to refer to the statute by its citation or as the "force-against-intruders" statute.

¶3 Section 18-1-704.5 recognizes that "the citizens of Colorado have a right to expect absolute safety within their own homes." § 18-1-704.5(1). As pertinent here, it provides immunity from criminal prosecution for the use of physical force (including deadly physical force) against an intruder when certain specified conditions are met. See § 18-1-704.5(2) – (3) ; People v. McNeese, 892 P.2d 304, 309 (Colo. 1995). One of those conditions is implicated in this appeal: We must decide whether the defendant, Patrick Rau, was in a dwelling when he shot and killed an intruder in the basement of the house where he and his girlfriend rented an apartment. A division of the court of appeals concluded that the basement, which was accessible to all of the building's tenants and contained the building's heat and water controls, was part of Rau's dwelling. People v. Rau, 2020 COA 92, ¶¶ 1, 17, 490 P.3d 804, 806, 808. Therefore, it affirmed the district court's ruling that Rau was immune from prosecution for using deadly physical force against the intruder. Id. at ¶ 26, 490 P.3d at 809.

¶4 Relying on the definition of "dwelling" in section 18-1-901(3)(g), C.R.S. (2021), we now hold that the basement was part of Rau's dwelling because it was part of the building that he used for habitation. We view the basement in this case in much the same way we viewed the attached garage in People v. Jiminez, 651 P.2d 395, 396 (Colo. 1982). Just as the garage in Jiminez was part of the building that was used for habitation, the basement here was part of the building that Rau used for habitation. And just as some of the usual uses of the garage in Jiminez were incidental to and part of the use of the residence itself, some of the usual uses of the basement in this case were likewise incidental to and part of the use of Rau's residence. Accordingly, we affirm the division.

I. Facts and Procedural History

¶5 Rau and his girlfriend rented a second-floor apartment in an old 19th century Victorian home that had been converted into seven apartments.² The door to the basement, which was just a few feet inside the home's rear entrance, was padlocked. However, the residents of all seven apartments had keys to the padlock and shared access to the basement. Although unfinished, the basement contained a central furnace, two hot water heaters, the home's only thermostat, and the plumbing infrastructure. In other words, the controls for the water and heat supply for all the apartments were located in the basement.³ As well, some of the residents stored household items in the basement.

¶6 Early one January morning, Rau's girlfriend noticed that the door to the basement was open. She told Rau that she suspected that an unhoused man had broken into the basement. Unhoused individuals apparently frequented the area and had previously broken into the building (including the basement), sometimes leaving drug paraphernalia and feces behind. Because police officers had failed (or had been slow) to respond to calls related to such unhoused individuals in the past, Rau grabbed a headlamp, armed himself with a loaded revolver, and made his way to the basement.

¶7 Upon arriving at the door to the basement, Rau noticed that it was indeed open and that there were pry marks around the padlock. As he descended the stairs, Rau turned his headlamp on because the basement was dark. He found D.R., a large man (six feet, five inches tall), asleep under a sleeping bag in a small storage closet. Additionally, Rau observed drug paraphernalia in D.R.’s general vicinity. Because, as the old adage goes, a picture is worth a thousand words, below are a few pictures depicting the front of the house, the door to the basement, and the storage closet where Rau found D.R. asleep.

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¶8 Rau nudged D.R. with his foot in an attempt to wake him up. As Rau did so, he told D.R. that D.R. wasn't supposed to be there and needed to leave immediately. D.R., who at that point was only about five feet away from Rau, rose to his knees, became aggressive, began yelling unintelligibly, and proceeded to throw things around. Rau believed that D.R. had used drugs while in the basement and was under their influence. As D.R.’s behavior escalated, Rau became scared and warned D.R. multiple times that he had a gun. None of the warnings altered D.R.’s behavior, however, so Rau said he would "count to five" and if D.R. hadn't left when he finished counting, he would shoot. Rau loudly counted to five. Not only did D.R. refuse to leave, his menacing and intimidating behavior continued. Fearing that D.R. was going to charge at him, Rau fired his gun. D.R. died from the gunshot wound.

¶9 A grand jury indicted Rau for second degree murder (heat of passion). Before trial, Rau moved to dismiss the charge, arguing that he was immune from prosecution under the force-against-intruders statute. Following an evidentiary hearing, the district court agreed with Rau, granted his motion, and dismissed the charge against him.

¶10 The People appealed on two grounds. First, they asserted that the district court had erred in concluding that the basement was part of Rau's "dwelling," one of the conditions for immunity under section 18-1-704.5. Second, they maintained that Rau had presented insufficient evidence to establish two of the other conditions required for immunity under section 18-1-704.5 : (1) that he reasonably believed that D.R. might use physical force against him and (2) that he reasonably believed that D.R. had committed or intended to commit a crime in the dwelling (in addition to the uninvited entry).

¶11 A division of the court of appeals rejected both of the People's claims. Rau, ¶¶ 14, 20, 490 P.3d at 808. On the dwelling front, the division was unmoved by the People's reliance on People v. Cushinberry, 855 P.2d 18 (Colo. App. 1992), where a different division of the court of appeals determined that the common area of an apartment building was not part of a dwelling under the force-against-intruders statute. Rau, ¶ 18, 490 P.3d at 808. Instead, applying the statutory definition of dwelling and our holding in Jiminez, the division below concluded that the basement was part of Rau's dwelling. Id. at ¶¶ 18-19, 490 P.3d at 808. And, regarding the two other conditions mentioned above, the division held that the record supported the district court's rulings by a preponderance of the evidence. Id. at ¶ 25, 490 P.3d at 809. More specifically, the division explained that the evidence was sufficient to support the court's findings that Rau reasonably believed that "D.R. was going to use physical force against him" and that Rau reasonably believed that "D.R. had committed a crime or intended to commit a crime against a person or property in the building." Id. at ¶ 26, 490 P.3d at 809.

¶12 The People then sought certiorari, and we granted in part and denied in part their petition. We declined to take up the People's sufficiency challenge, but we agreed to consider whether the division mistakenly held that the basement was part of Rau's dwelling under section 18-1-704.5.⁴

¶13 After setting forth the standard that controls our review and the relevant principles of statutory construction that guide our decision, we proceed to analyze the question before us. Because we agree with the division, we affirm.

II. Standard of Review and Relevant Principles of Statutory Construction

¶14 Whether the basement was part of Rau's dwelling hinges on the meaning of the word "dwelling" in section 18-1-704.5. Questions of statutory interpretation are questions of law that we review de novo. People v. Sprinkle , 2021 CO 60, ¶ 12, 489 P.3d 1242, 1245.

¶15 When we are called upon to interpret a statute, "our primary aim is to effectuate the legislature's intent." Nieto v. Clark's Market , Inc., 2021 CO 48, ¶ 12, 488 P.3d 1140, 1143. To carry out that goal, we must first and foremost apply the statute's words and phrases "in accordance with their plain and...