Deadly force in protection of property --Colorado Constitution versus the "law."

[230RN]

Huh. I just noticed something. As part and parcel of the various discussions of the Montana Brief to the Supreme Court*, I quoted a passage from the Colorado Constitution as follow:

Article 2, Section 13. Right to bear arms. The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. (boldface, underlining mine --230RN)

Yet it is it is illegal, I am told, to use deadly force to protect property, at least here in Colorado.

So pardon my confusion. Can anyone enlighten me as to why it is illegal to use deadly force in protection of one's property --which laws would seem to contradict the Colorado Constitution.

The answer must be obvious... but not to me.

--Terry

_______
*
Cf:

http://thehighroad.org/showthread.php?t=341705

 

[The-Fly]

another one of those nice clear cut rules with LOTS and LOTS of exceptions.....kinda like the 2A itself.

 

[RobTzu]

Hmm. Well you could shoot someone in defense and take it to the Colorado Supreme Court. Unfortunately that is how these things get resolved.

 

[Pat-inCO]

CRS 18-1-704.5 Explains.

 

[230RN]

CRS 18-1-704.5 Explains.

Yeah, but... but...

Oh, wait a minute. I didn't "get" this part the first time throgh:

another one of those nice clear cut rules with LOTS and LOTS of exceptions.....kinda like the 2A itself.

So the State Constitution appears to imply that if someone's stealing your car, you can use deadly force to prevent that occurence.

But then the Legislature decided the Constituion means diddly-squat, and we have to wave by-by as the miscreants drive off in our Lamborghinis.

Now I'm clear on it.

Thanks.

Now, about this "shall not be called into question" crap...?

A little help here, too, please?

--Terry

 

[brickeyee]

Notice it says "keep and bear" and not actually shoot?

Restrictions on the actual shooting of the allowed arms have been around since before the US Constitution.
You have never been free to shoot whomever you want.

 

[Art Eatman]

brickeyee, it's sorta hard to "defend" if you're not allowed to shoot.

"Put down that TV! Go away! I'm keeping and bearing!"

"Yeah, but you ain't shooting."

Art

 

[Coltdriver]

I have yet to see one case prosecuted in Colorado as a result of a criminal being killed on the property of a law abiding citizen.

In fact there have been many instances where the killed person may or may not have been doing something that rose to the level of anything but the property owners decision to kill them.

You NEVER hear of forcible entry here with the exception of the druggies about whom nobody cares anyway.

I think our "make my day" law serves us citizens pretty well. Everything is a compromise but this is one that works pretty well.

 

[brickeyee]

All I am pointing out is that you do not have a fundamental right to decide who you want to shoot without any restrictions.

The other guy has the same set of right you do.
The second amendment (and the state versions) address the ownership (and carrying) of firearms.

The idea that you can shooting whomever you want for whatever reason you decide on is NOT a fundamental right.

The actual use of firearms IS legitimately subject to restrictions.

 

[M2 Carbine]

Texas law spells it out a little clearer.
You may even use deadly force to protect someone elses property. Such as I look after the neighbor's place when he's away.

Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his protection of the land or property;
(B) he has a legal duty to protect the third person's land or property; or
(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

 

[Pat-inCO]

So pardon my confusion. Can anyone enlighten me as to why it is illegal to use deadly force in protection of one's property --which laws would seem to contradict the Colorado Constitution.

The other guy has the same set of right you do.
The second amendment (and the state versions) address the ownership (and carrying) of firearms.

The idea that you can shooting whomever you want for whatever reason you decide on is NOT a fundamental right.

Says it all.

 

[230RN]

Quoted by PatinCO:

The idea that you can shooting (sic) whomever you want for whatever reason you decide is NOT a fundamental right.

Well, we were talking about defense shooting, not just walking around shooting foks who give you the stinkeye.

Ooo, ooo, ooo, I got another question. How about openly carrying a switchblade knife or a medieval mace or compound bow and broadhead arrows around... those are "arms," too, no?

So where does "police power" end and my "unquestionable" rights per Article 2, Section 3 begin?

Paragraph deleted. See Bailey Gun's post 15 below.

 

[Lanyard]

ColtDriver,
Denver brought attempted murder charges against Christakes Christou for shooting an intruder in his bar 2 years ago.

 

[Vern Humphrey]

Don't use deadly force to protect your property.

The proper position is that you have a right to repel an intruder, and if he puts you in reasonable fear of your life, then you have a right to use reasonable force to protect yourself.

In other words, never say, "I shot him because he was stealing my stereo." Instead say, "I was forced to shoot him because he was pointing a gun at me, and I was in immanent danger of death."

 

[Bailey Guns]

230RN wrote:

(And yes, I note that a couple of yeas ago, some guy left a dead man's trap (shotgun) in his warehouse and it killed the last of many burglars. He was not prosecuted, but was sorta-kinda asked to leave Colorado. I wonder in the prosecutors know something we don't know about prosecution in such instances.)

No, he was prosecuted. Paid several thousand dollars in fines and plead guilty to manslaughter w/several years probation. His name was/is Phil Connaghan.

 

[Coltdriver]

I forgot to mention that the pit known as Denver is not a part of Colorado.

 

[230RN]

Bailey Guns corrected me:

No, he was prosecuted. Paid several thousand dollars in fines and plead guilty to manslaughter w/several years probation. His name was/is Phil Connaghan.

Thanks. I thought he was let off scot-free.

 

[GJgo]

The following is how the law was described to me, by a local Sheriff, when I took my CCW class in Western CO.

-Inside of your place of residence or in the attached garage: You may defend yourself, a third party, or your property with the use of deadly force if you reasonably believe your life, their lives, or your property to be in danger.

- Outside of the above, including on your property or buildings on your property that are not your primary place of residence, or any public place not your property that you are legally allowed to be: You may defend yourself or a third party with the use of deadly force if you reasonably believe your life or theirs to be in danger. You may not use deadly force to protect your property. However, you may use yourself to protect your property from harm, and you may use a weapon to protect yourself from harm.

There was, of course, a lot more to it- just wanted to address the original question. Maybe someone has a link to the law itself.

 

[inkhead]

I think a lot of people here have a military mindset when it comes to self-defense. That's not a bad thing, but you have to realize you are in (US) country full of laws, and shooting some-one should be a last resort unless your planning on covering up the incident, you will most likely be arrested, and if not there is a really good chance charges will be brought against you.

For example the case of a man shooting a person in his house, who turned out to be a mental handicap person who somehow wondered off and ended up in the mans house.

It sucks because you don't want to give your cards away by shouting out that you are going to shoot the person if they do not disperse, but you can't just shoot people, even if they seem threatening. In civilian world you should always way firing your gun against the fact that even if your shot was RIGHT, you might end up spending some time in jail..

vs. in combat situation you don't take chances...

 

[brickeyee]

Even is a SD shooting you are going to have to show that the person had means, motive, and intent to meet the typical 'reasonable fear' standard.

And yes, since SD is an affirmative defense the burden WILL be shifted to you.

A number of states have tried to loosen the requirements with various 'castle laws', but there have not been a lot of cases under the new laws to tell how they will be applied.

 

[Owen Sparks]

We might all agree that killing is worse than robbery, but when it is YOUR property attitudes change quickly. I saw the results of this attitude manifest itself in a video of a looting situation in LA once. Crowds of thugs were coming out of a store with an armload's of stolen stuff. A city policeman pointed a shotgun at one of them and shouted STOP! The thief just looked at the officer and said "Or what, you gone shoot me MF?" then turned his back and walked away. That is exactly what ultimatly happens when deadly force is not an option.

 

[Vern Humphrey]

A real cop would have bashed him with the butt of the shotgun, or used pepper spray or a taser.