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Colorado Criminal Law – The Law of Self Defense and Multiple Assailants – Attackers

A case decided in 2011 by the Colorado Supreme Court – Riley v. People – helped to clarify the right of a defendant to assert self defense against multiple attackers.  Without getting too detailed into the case – the law is restated below as it has been excerpted from the case itself.

Brief  Facts of the Case

Riley testified that he was shopping at an EZ Market in Aurora in January 2006. He became involved in a verbal confrontation with a female shopper, Nisa Peelman, after Peelman allegedly touched Riley in an inappropriate way. Riley then left the store. Shortly thereafter, Peelman and her brother, Gabriel Velasquez, walked out of the store. Velasquez and Riley exchanged words and a verbal altercation resulted. The two men began physically wrestling when the argument became more hostile. During the tussle, Velasquez told Peelman to “grab the heat from the truck.” Riley believed that the term “heat” meant a gun. Riley then pulled out a small knife from his pocket and “swung it” at Velasquez, hitting Velasquez in the neck, but failing to damage any vital structures.

Velasquez told Peelman to “[r]un for [her] life,” but she instead walked toward Riley, yelling at him to leave Velasquez alone and come get her instead. Riley tried to stab Peelman with the knife, but only grazed her neck. Peelman testified that Riley also punched her several times in the head and face until she ran away. Riley testified that he fled the scene when he heard Velasquez again tell Peelman “to grab the heat from the truck.”

The prosecution charged Riley with attempted second degree murder as to Velasquez, first degree assault as to Velasquez, menacing as to Peelman, attempted second degree assault as to Peelman, and a crime of violence. Riley argued at trial that his actions were justified because he acted in self-defense to fend off both Velasquez and Peelman. He also tendered a jury instruction to the trial court describing self-defense in the context of a multiple assailants situation.

The Colorado Law of Self Defense as of 2011

The Right to Act of Appearances – Apparent Necessity

When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed or receiving great bodily injury is imminent, he may act on such appearances and defend himself. A person may act on such appearances, even to the extent of taking a human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the actual danger.

Apparent necessity, if well-grounded and of such character as to appeal to a reasonable person under similar conditions and circumstances, as being sufficient to require action, justifies the application of self-defense to the same extent as actual or real danger.

Self Defense is an Affirmative Defense – Once Properly Raised – the Government Must Disprove It Beyond a Reasonable Doubt

It is an affirmative defense to the crimes of Attempted Second Degree Murder, First Degree Assault, Second Degree Assault Causing Bodily Injury, Menacing, Attempted Second Degree Assault and Attempted Third Degree Assault that the defendant used physical force upon another person

1. In order to defend himself or a third person from what he reasonably believed to be the imminent use of unlawful physical force by the victim, and

2. the defendant used the degree of force which he reasonably believed to be necessary for that purpose.

Sometimes Self Defense is Not an Affirmative Defense – But Can Be Used to Attack the Mental State Evidence – Such As Recklessness ( as in this case)

Self-defense is not an affirmative defense to the crimes of Attempted Manslaughter-Reckless, Attempted Second Degree Assault-Reckless or Third Degree Assault done negligently. However, you may consider the evidence presented on this issue as it relates to the question of whether the defendant acted “recklessly” or with “criminal negligence,” as required for the commission of those crimes.

Self-Defense Against Multiple Assailants

In general, a person is justified in using physical force to defend himself or a third person from what he “reasonably believes to be the use or imminent use of unlawful physical force” against him by another person. § 18-1-704(1), C.R.S. (2011).

The person exercising the right to self-defense “may use a degree of force which he reasonably believes to be necessary for that purpose.”  A defendant may assert self-defense as an affirmative defense to crimes requiring intent, knowledge, or willfulness. 

He may also present evidence of self-defense as an element-negating traverse to cast doubt on charges that he acted recklessly, with extreme indifference, or in a criminally negligent manner.

§ 18-1-704(4) Here Are the Laws in Colorado Regarding Self Defense

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 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 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 or 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.

18-1-704.5 Use Of Deadly Physical Force Against An Intruder (“Make My Day Law”)

1. The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

2. Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

3. Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions or subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

4. Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

18-1-705 Use Of Physical Force In Defense Of Premises

A person in possession or control of any building, realty, or other premises, or a person who is licensed or privileged to be thereon, is justified in using reasonable and appropriate physical force upon another person when and to the extent that it is reasonably necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of an unlawful trespass by the other person in or upon the building, realty, or premises. However, he may use deadly force only in defense of himself or another as described in section 18-1-704, or when he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the trespasser to commit first-degree arson.

18-1-706 Use Of Physical Force In Defense Of Property

A person is justified in using reasonably and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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