2022 CO 3
Colo.2022Background
- Rau and his girlfriend rented a second-floor apartment in a seven-unit converted Victorian; tenants shared keyed access to a padlocked basement that housed the building's furnace, hot water heaters, thermostat, plumbing controls, and some tenant storage.
- Rau’s girlfriend found the basement door open; Rau armed himself, found D.R. (an unhoused man) asleep in a storage closet with drug paraphernalia, and ordered him to leave.
- D.R. became agitated and aggressive; Rau warned him multiple times, counted to five, and then shot D.R., who died.
- A grand jury indicted Rau for second-degree murder; Rau moved to dismiss claiming immunity under Colorado’s force-against-intruders statute (§ 18-1-704.5). The district court granted dismissal.
- The court of appeals affirmed, holding the basement was part of Rau’s dwelling; the People petitioned for certiorari on whether the basement qualified as a "dwelling" under the statute. The Colorado Supreme Court affirmed the court of appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the basement was part of Rau’s "dwelling" under § 18-1-901(3)(g) and thus whether Rau could invoke immunity under § 18-1-704.5 | The People: context of § 18-1-704.5 and related law excludes common areas of apartment buildings from "dwelling." | Rau: statutory definition of "dwelling" (a building used for habitation) controls; Jiminez supports including building components incidental to habitation. | The Court held the basement was part of Rau’s dwelling under the statutory definition and affirmed the division. |
| Whether People v. Cushinberry requires excluding common areas (e.g., stairwells) from "dwelling" | The People: Cushinberry controls and limits "dwelling" to private unit, excluding common areas. | Rau: Cushinberry was unpersuasive and inconsistent with Jiminez and the statutory definition. | The Court declined to follow Cushinberry and overruled it to the extent inconsistent with this opinion. |
| Whether legislative silence or the trespass statutes show the legislature intended to exclude common areas from "dwelling," and whether affirmance produces absurd, overbroad results | The People: legislative inaction and the distinction in trespass statutes indicate common areas are not "dwellings;" allowing immunity in common areas would lead to absurd breadth. | Rau: statutory definition applies unless context indicates otherwise; trespass statutes actually show how the legislature would have excluded common areas if intended. | The Court rejected inference from legislative silence, found the trespass statutes show the context where exclusion is explicit, and limited its holding narrowly to the facts; declined to judicially rewrite the statute. |
Key Cases Cited
- People v. Jiminez, 651 P.2d 395 (Colo. 1982) ("dwelling" includes entire building and parts incidental to habitation, such as a garage)
- People v. Cushinberry, 855 P.2d 18 (Colo. App. 1992) (court of appeals decision treating common-area stairwell as outside apartment "dwelling")
- People v. McNeese, 892 P.2d 304 (Colo. 1995) (discusses mens rea and limits on self-defense statutes)
- People v. Guenther, 740 P.2d 971 (Colo. 1987) (discusses immunity feature unique to § 18-1-704.5)