COLORADO SPRINGS – A judge has thrown out a murder charge against a Colorado Springs man who shot and killed a homeless man in the basement of an apartment building last year.
Judge Jann P. Dubois dismissed the case against 29-year-old Patrick Thomas Rau Friday.
The judge said Rau was justified in killing 37-year-old Donald Russell on January 19, 2017 in the basement of a house off of North Wahsatch Avenue near downtown Colorado Springs.
The home was a converted apartment building and Rau lived in one of the units. A grand jury indicted Rau for second-degree murder-heat of passion in March 2017. Rau pleaded not guilty to that charge on Dec. 6, 2017.
The 4th Judicial District Attorney’s office issued a statement reacting to Judge Dubois’ decision Monday, “We respectfully disagree with the judge’s decision to dismiss this case,” said Lee Richards, who is the spokesperson for the 4th Judicial District.
News 5 talked with 4th Judicial District Attorney Dan May days after this shooting about the limits of the “Make my Day” law. He didn’t talk about specifics about this case, but he said the law doesn’t cover a common area.
“If you are breaking into a common area like if it’s a hallway where many different doors open to different apartments, that’s not the dwelling, that’s a common area and Make My Day law doesn’t apply there,” May said.
May said the law applies only when someone physically enters your home and that’s when you are protected under state law to use deadly force.
Richards said the office will appeal the judge’s decision.