INTENSE FOCUS. EXCEPTIONAL OUTCOMES.
Self-Defense in Colorado as an Affirmative Defense
The Colorado criminal code, Colorado Revised Statutes (“C.R.S.”) §§ 18-1-101 to 18-26-102, provides for various affirmative defenses that exempt an individual from criminal liability. See C.R.S. § 18-1-712. Affirmative defenses are defenses that excuse the underlying crime. For example, if one is charged with assault he or she may assert self-defense, effectively saying, “Yes, I committed assault, but the assault was justified because I had to do it in order to protect myself.” The affirmative defense justifies the underlying crime: assault.
Under Colorado law, “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 . . . .” C.R.S. § 18-1-704(1). Put in other words, a person may use physical force to stop somebody else from hurting them, or from hurting another person. However, while the person defending themselves doesn’t have to wait for the attacker to actually make physical contact, the person must have a “reasonably belief” that the attacker is about to physically harm them or somebody else. Id.
Further, the amount of force used against the attacker must be an amount which the defending party “reasonably believes to be necessary” to stop the attacker. In other words, the degree of force used cannot be disproportional to the amount of force or harm the defending party believes the attacker will inflict. For example, if an attacker is coming at somebody with an open hand intending only to slap them in the face, a disproportionate response would be for the defending party to take a gun out and shoot the attacker in the head killing him or her instantly. This response would not be “reasonable” since the use of lethal force is drastically disproportionate to the amount of force the attacker was going to use – that is, an open handed slap in the face. A more proportionate response would be for the defending party to shove the attacker away; try to restrain the attacker; or use non-lethal force, such as a tazer or mace, to stop the attacker.
In the first instance, self-defense would be unavailable as an affirmative defense because the person would not have been justified in shooting the attacker. In the second instance, self-defense would be available as a defense because the amount of force used is a reasonable amount of force for the circumstance. However, where the defending party reasonably believes the attacker is going to kill or cause serious bodily injury to him or another party, the defending party may use lethal force in those circumstances. C.R.S. § 18-1-704(2).
Additionally, self-defense is unavailable as a defense where the defending party:
• Provokes the attacker into using physical force;
• Is the initial aggressor (except where the defending party has retreated from the encounter and communicated his intent to do so, and the attacker continues); or
• The physical force involved is the product of combat by agreement not otherwise authorized by law.
Lastly, in order for a jury instruction to be given on self-defense, the defendant must have presented some evidence that they were acting in self-defense when the alleged unlawful contact occurred. C.R.S. § 18-1-704(4). In essence, if there is no self-defense evidence presented to the jury, the defendant cannot use a theory of self-defense to escape liability.