2.4 Affirmative Defenses, Justifications & Exemptions

Affirmative Defenses, Justifications & Exemptions

When investigating incidents involving physical force, property entry, or alleged coercion, peace officers must evaluate whether the suspect's conduct is shielded by a statutory Affirmative Defense or Justification. An affirmative defense admits the underlying act (actus reus) but asserts that the conduct was legally justified, excused, or authorized by law.

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1. Procedural Burden of Proof (C.R.S. § 18-1-407)

In Colorado, the burden of proof for affirmative defenses operates under a two-tiered statutory framework:

1. Defendant's Initial Burden of Production: The defendant has the burden of presenting some credible evidence (frequently described in Colorado case law as a "scintilla" of evidence) supporting the affirmative defense.
2. Prosecution's Ultimate Burden of Persuasion: Once the defense is raised and supported by some credible evidence, the defense becomes an additional element of the offense. The prosecution must disprove the affirmative defense beyond a reasonable doubt.

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2. Physical Force in Defense of Person (C.R.S. § 18-1-704)

Colorado statutory law provides comprehensive justification rules for using physical force and deadly physical force in defense of oneself or third persons.

Non-Deadly Physical Force (C.R.S. § 18-1-704(1))

A person is justified in using a degree of physical force upon another person when:

• The person reasonably believes such force is necessary to defend themselves or a third person from what they reasonably believe to be the use or imminent use of unlawful physical force; and
• The person uses a degree of force which they reasonably believe to be necessary for that purpose.

Deadly Physical Force (C.R.S. § 18-1-704(2))

Deadly physical force (force the intended, natural, and probable consequence of which is to produce death, or which in fact produces death) is justified ONLY IF the defender reasonably believes that lesser force is inadequate AND one of three statutory conditions exists:

1. Imminent Deadly Force: The defender has reasonable grounds to believe, and does believe, that they or another person is in imminent danger of being killed or receiving serious bodily injury; OR
2. Burglary with Force: The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business building while committing or attempting to commit burglary; OR
3. Enumerated Violent Felonies: The other person is committing or reasonably appears about to commit kidnapping, robbery, or sexual assault (as defined by statute).

The 'No Duty to Retreat' Doctrine ('True Man' Rule)

Colorado is a "Stand Your Ground" / "No Duty to Retreat" jurisdiction under longstanding common law affirmed by the Colorado Supreme Court (People v. Toler, Cassels v. People). A person who is not the initial aggressor and is in a place where they have a lawful right to be is not required to retreat before using justifiable physical or deadly force to repel an attack.

Exceptions & Forfeiture of Self-Defense (C.R.S. § 18-1-704(3))

Self-defense is legally unavailable if:

• Provocation: The actor, with intent to cause bodily injury or death to another, provoked the use of unlawful physical force by the other person.
• Initial Aggressor Rule: The actor was the initial aggressor, UNLESS the actor completely withdraws from the encounter, effectively communicates their intent to withdraw, and the other person nevertheless continues or threatens unlawful force.
• Combat by Agreement: The physical force was the product of unauthorized mutual combat by agreement (e.g., consensual street fighting).

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3. Defense of Home: Colorado's 'Make My Day' Law (C.R.S. § 18-1-704.5)

Colorado's Homeowner Protection Statute (commonly called the "Make My Day" law) grants extraordinary statutory immunity from criminal prosecution and civil liability to an occupant of a dwelling who uses physical force against an unlawful intruder.

┌────────────────────────────────────────────────────────────────────────┐
│            'MAKE MY DAY' STATUTORY IMMUNITY CRITERIA (§ 18-1-704.5)    │
├────────────────────────────────────────────────────────────────────────┤
│ 1. OCCUPANT IN DWELLING: Actor is an occupant of a dwelling.           │
│ 2. UNLAWFUL ENTRY: The other person made an UNLAWFUL entry.           │
│ 3. REASONABLE BELIEF OF CRIME: Occupant reasonably believes intruder  │
│    has committed / intends to commit ANY crime in the dwelling.        │
│ 4. FEAR OF FORCE: Occupant reasonably believes intruder might use ANY  │
│    physical force (no matter how slight) against ANY occupant.         │
└────────────────────────────────────────────────────────────────────────┘

Critical Legal Distinctions for Peace Officers

• Dwelling Requirement: Applies strictly to a dwelling (a building used for human habitation, e.g., house, apartment, mobile home, attached garage). It does NOT apply to detached sheds, open yards, driveways, or commercial businesses.
• Unlawful Entry Requirement: The intruder must enter unlawfully. It does not apply against invited social guests, family members with lawful occupancy, co-tenants, or guests who refuse to leave after an argument (which is trespass, but not an initial unlawful entry).
• Degree of Force Allowed: If all four elements are satisfied, the occupant is authorized to use ANY degree of physical force, including deadly physical force, regardless of whether the intruder was armed.

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4. Other Key Colorado Affirmative Defenses

A. Choice of Evils / Necessity (C.R.S. § 18-1-702)

Conduct that would otherwise be criminal is justified when it is necessary as an emergency measure to avoid an imminent public or private injury through no fault of the actor, and the desirability of avoiding the injury clearly outweighs the harm of the offense.

• Statutory Limitation: Defendant must submit an offer of proof to the court prior to trial; not available for economic necessity or generalized societal protest.

B. Duress (C.R.S. § 18-1-708)

A person is not guilty of an offense (other than a Class 1 Felony) if they engaged in the conduct because they were coerced by the use or threatened use of unlawful force against their person or another, which a person of reasonable firmness would have been unable to resist.

• Critical Rule: Duress is never a defense to a Class 1 Felony (e.g., murder).

C. Entrapment (C.R.S. § 18-1-709)

Entrapment occurs when a law enforcement agent induces the commission of a crime by using methods of persuasion that create a substantial risk that the offense will be committed by someone who was not otherwise predisposed to commit it.

• Police Practice Rule: Providing mere opportunity, undercover undercover decoys, or standard undercover buys is not entrapment.

D. Intoxication (C.R.S. § 18-1-804)

E. Insanity & Impaired Mental Condition (C.R.S. § 16-8-101.5)

Colorado applies a modified M'Naghten rule. A person is legally insane if they are so diseased or defective in mind at the time of the act as to be:

1. Incapable of distinguishing right from wrong with respect to that act; OR
2. Incapable of forming the culpable mental state required for the offense.

• Statutory Exclusion: Does not include moral obliquity, emotional depravity, or temporary passion.