COLORADO SPRINGS — The Colorado Supreme Court affirmed a trial court's ruling to dismiss the second degree murder charge filed against Patrick Rau.
The case came to the Supreme Court after the Fourth Judicial District Attorney's office made the claim that the basement in the subdivided house Rau rented an apartment in did not fall under the 'dwelling' provision in Colorado's 'Make My Day' law.
The 'Make My' Day' law, which came into law as 'The Home Protection Bill,' "provides immunity from criminal prosecution for the use of physical force (including deadly physical force) against an intruder when certain specified conditions are met."
The Colorado Supreme Court justified their ruling based on the precedent set in the People v. Jimenez case of 1982, where the court affirmed that the attached garage in the Jimenez case "was part of the building that was used for habitation." The Colorado Supreme Court in this case ruled that the basement, where the incident occurred, falls under the same designation as the attached garage.
The incident occurred in January 2017, when Rau's girlfriend noticed the door to the basement of the house they rented a room in was open. She believed a homeless man had broken into the basement.
Rau then grabbed a headlamp and a loaded revolver and went to investigate, as "police officers had failed (or been slow) to respond to calls related to such unhoused individuals in the past," according to the court ruling."
When Rau arrived at the basement door, he found it ajar and pry marks around the padlock.
He turned his headlamp on while going down the stairs and found a large man, identified as D.R. in the ruling, asleep in a small storage closet. Rau saw "drug paraphernalia in D.R.'s general vicinity."
Rau then woke up D.R. and told him he needed to leave immediately. The court ruling says that D.R. then "became aggressive, began yelling unintelligibly, and proceeded to throw things around."
Rau believed D.R. had used drugs while in the basement, and he "became scared and warned D.R. multiple times that he had a gun."
After none of this changed his behavior, Rau warned D.R. that he would shoot on a 'count to five' if D.R. didn't leave. Rau counted to 5, D.R. did not leave and "his menacing and intimidating behavior continued," and then Rau shot D.R. who died from the gunshot wound.
A grand jury indicted Rau for second degree murder, and Rau argued that he was immune from the charge due to the 'Make My Day' statute. The district court agreed with Rau's argument and dismissed the case.
'The People' appealed the decision, arguing that the basement was not part of the dwelling and that Rau had not presented enough evidence to establish that "he reasonably believed that D.R. might use physical force against him and that he reasonably believed that D.R. had committed or intended to commit a crime in the dwelling (in addition to the uninvited entry)."
The case then went to a division of the court of appeals, where it rejected both claims.
The Colorado Supreme Court agreed to consider whether or not the basement was part of Rau's dwelling, but refused to consider the insufficient evidence claim.
The Colorado Supreme Court then affirmed the appeal and trial Courts rulings.