Since 1877, it has been a felony offense to defend yourself in Colorado.
In CRS 18-1-704 (Use of physical force in defense of a person) there are established limitations on the authority of persons to defend themselves and their property or family. This is accomplished by Article II Section 13 of the Colorado Constitution, which empowers the State (or home rule cities) to exercise police power in the use of weapons.
A person is justified in using physical force upon another person to defend themselves or a third person only in cases where 1) there may be proven reasonable belief that there is use or imminent use of physical force – and such reasonable belief must be held to the standards of evidence in courts, with neutral witnesses, or physical proof, and 2) excessive force is not used.
However, proof must be made to a Judge after arrest.
In Colorado, it is up to the responding law enforcement officer to determine if excessive force is used. For example, even the simple display of a gun with the threat of using it to defend your wife against someone bigger than you but not armed with a deadly weapon could violate this law, resulting in a felony. It would be up to the person using the gun to justify, to the satisfaction of a court and the arresting police officer, that the display of the gun was necessary. Or, even where no deadly weapons are used in a fist fight, one of the fighters might be determined to have used excessive force in defending themselves.
CRS 18-1-704 also limits the authority to use deadly force to only those times when A) lesser force may be proven to be inadequate, or B) that it may be proven that there was imminent danger of death or “great bodily injury,” or C) you are within the inside walls of your house or business (not just on your land, or in your yard) AND there is a burglary being attempted, OR there is being attempted a kidnapping, OR sexual assault, or D) you are being chased and have attempted to flee the fight but could not. You are never allowed to use any physical force if it may be shown that you I) provoked the other person, II) you initiated the fight, or III) you are dueling or fighting by arrangement. In Colorado, public “deadly weapons” include not only firearms (loaded or unloaded), but knives, bludgeons, or any other “weapon, device, instrument, material, or substance, whether animate or inanimate.” In this understanding, even dogs, snakes, or other domestic or wild animals used to cause injury can be considered weapons.
Therefore, Colorado law requires self-defense must be undertaken with improvised weapons, or by hands – if it is to be undertaken at all.
You should be aware that it is illegal to attempt to defend yourself without fleeing first. It is also unlawful (CRS 18-3-206) to simply represent, verbally or otherwise, a threat of bodily injury that in any way may place a person in fear of serious bodily injury. Even if they are attacking you. If you do not represent you have or will use a deadly weapon, this “menacing” is a class 3 misdemeanor. But if you represent you have or will use a deadly weapon, it becomes a class 5 felony. Any article used or fashioned in a manner to cause belief that it is a deadly weapon will be called “menacing.”
The courts have upheld repeatedly Colorado’s laws, even affirming that the phrase “use of a deadly weapon” is broad enough to include the act of holding a weapon in the presence of another in a manner that causes the other person to fear for his safety, even if the weapon is not pointed at the other person. People v. Hines, 780 P.2d 556 (Colo. 1989); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).
Even threatening communication of a deadly disease can be the use of a deadly weapon (People v. Shawn, 107 P.3d 1033 (Colo. App. 2004)). And an intent to inflict injury is not the element of these crimes. Whether the defendant had the intent of ability to inflict injury is not the element of felony menacing (People v. McPherson, 200 Colo. 429, 619 P.2d 38 (1980). There is an enormous case history to look at if you desire further review.
So what we have in Colorado is a situation where you have a right to bear arms, but an incredibly limited right to use them. There are circumstances where, even simply announcing you are armed with a gun (or another weapon) or have the intention to defend yourself, your family or your property can result in the commission of a felony.
Yes, there does exist the affirmative defense of self-defense, defense of another, or of property. But in many fights, the only witnesses are those who are fighting. And even if the fight takes place within your house, and the assailant says you invited them in, or if they were selling cookies or magazines or something like that, you could be severely punished as a felon if you cannot prove to the Judge or Jury otherwise. Could you convince them? Bad guys are good at lying. The attacker will lie to defend themselves against the inevitable justice they face. It is even a fact that in the numerous case histories, assailants have confused police responders whose home it was, resulting in the arrest of the homeowner!
But it won’t matter much if you admit your crime to the police officer who comes to respond: once you’ve admitted what you did (menacing the attacker with your weapon), it matters little whether you did it to defend yourself, or a loved one, or your property. The officer will likely arrest you, and let the Judge and jury sort out whether it actually was illegal or not. It is not the job of the police officer to judge you. It is their discretion to warrant a crime of violence has occurred.
Once arrested, you will need a lawyer. Representing yourself, you waive your 5th Amendment right against self-incrimination. Remember, if you admit that you have even menaced your assailant, you are admitting a crime – you are simply asking the Court to be lenient on account of the excusable nature of the crime. But with minimum sentences, even if the Court wanted to be merciful, short of finding you not-guilty, you will not receive mercy.
So what if you could prove you defended yourself lawfully? Could you afford a lawyer for your defense? Tens of thousands of dollars do not come easily. Can you trust a public defender? If you plead and get mercy, can you afford the court costs and penalties? The costs of probation? The required anger management classes? The costs of restitution for damaging your assailant? Or do you trust a Jury or a Judge to understand your case? Can you risk years in jail before your trial if you cannot make bail – which in most crimes of violence begins in the $25,000 to $50,000 range? Who would provide for your family you sought to defend?
No answer is satisfactory once you begin down that path. Lawful self-defense in Colorado requires the person to defensively flee using improvised weapons.