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Colorado Criminal Defense Blog

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Assault is a quite-serious offense involving knowingly or recklessly causing bodily injury or threatening to cause serious bodily injury. Depending on the circumstances of the alleged offense, you could be charged with felony or misdemeanor assault, leaving you with a criminal record of violent crime, and potentially with the lifelong consequences of being a convicted felon.


On the flip side, you are allowed under Colorado law to defend yourself from reasonable threat of serious bodily harm. Accordingly, self-defense is one of the most common defenses to assault charges.

However, making a claim of self-defense is not as simple as it may appear. For your defense to hold up in court, your attorney must be able to prove certain elements, which we are going to cover below.

Elements of a Self-Defense Claim in Colorado


It is universally recognized that a person has the right to protect themselves from harm in appropriate situations, even when that behavior would ordinarily constitute an illegal act. In Colorado, you are allowed to claim self-defense when accused of a violent crime, but certain elements must be present in order to make a legitimate claim of self-defense against assault charges.


The definition of self-defense is simple enough, but when it is applied to actual altercations, a number of questions arise. For example, what is a sufficient level of force for self-defense, and what actions go beyond that level?


Because of this, the real-life application of a self-defense claim is much more complex and nuanced than it seems. Colorado has therefore developed a set of criteria to determine when self-defense is appropriate, and how much force is permissible to protect oneself.


Imminent Threat


Self-defense only justifies the use of force when there is an imminent threat to your physical safety. The threat itself need not be physical, so long as it puts you in immediate and reasonable fear of physical harm. However, offensive words without a threat of physical harm do not constitute an imminent threat.


Further, the use of physical force must be ceased when the threat has ended. For example, if you are assaulted by an aggressor who then ends the assault and indicates that there is no additional threat of physical violence, you are not permitted to use physical force to retaliate.


Reasonable Fear of Harm


To justify the use of physical force, you must be able to establish that there was a reasonable fear of harm. This does not necessarily mean that your perceived aggressor intended harm, but rather that their actions or the situation would cause a “reasonable person” to perceive an immediate threat of physical harm.


For example, if you are walking through a park and have a bee buzzing around your head, a stranger may try to swat it away. If you are unaware of the bee and only see a stranger’s hand coming violently towards your head, you are likely to see this as a physical threat, and respond with the use of physical force, even though the perceived aggressor meant no actual harm. In this case, it could be justified that you acted under the reasonable fear of imminent physical harm.


Elements of a Self-Defense Claim in Colorado


Proportional Response


The use of physical force in self-defense must also match the level of perceived threat in question. You can only employ as much force as is required to address the threat.


So, if the threat involves potentially deadly force, you are justified in using deadly force to defend yourself. However, if the threat only involves minor force and you respond with physical force that could cause grievous bodily harm or death, you are not justified in using this amount of force, and a self-defense claim becomes difficult.


Duty to Retreat


In most cases, you must be able to prove that you either made an attempt to avoid violence or were unable to retreat before using physical force. This is especially important if you applied lethal force to neutralize the perceived threat.

Colorado’s “Make My Day” Law


If an intruder enters your residence, the justification for use of physical force is somewhat different. In fact, Colorado addresses this specific situation with the “Make My Day Law” which justifies the use of force against an intruder in one’s residence.


Colorado’s “Make My Day” Law


The law permits occupants of a dwelling to use “any degree of physical force, including deadly physical force,” provided that:


  • The intruder knowingly and unlawfully entered the dwelling.
  • The occupant reasonably believes that the intruder is committing or intends to commit a crime against the property or occupants in addition to unlawful entry.
  • The occupant reasonably believes that the intruder might use physical force against the dwelling’s occupants.

How to Fight Colorado Assault Charges


If you are facing assault charges, we recommend that you consult an experienced Colorado criminal defense attorney as soon as possible. Due to the complexity of assault cases, it is imperative to retain quality legal representation as soon as possible.


Your lawyer will evaluate the circumstances surrounding the alleged assault, and craft the best possible defense against your charges. In some situations, it may even be possible to get your charges dropped and case thrown out entirely.





About the Author:

Kimberly Diego is a criminal defense attorney in Denver practicing at The Law Office of Kimberly Diego. She obtained her undergraduate degree from Georgetown University and her law degree at the University of Colorado. She was named one of Super Lawyers’ “Rising Stars of 2012” and “Top 100 Trial Lawyers in Colorado” for 2012 and 2013 by The National Trial Lawyers. Both honors are limited to a small percentage of practicing attorneys in each state.  She has also been recognized for her work in domestic violence cases.

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