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People v. Toler9/11/2000
which homicide in self-defense was justifiable without requiring that a person "retreat to the wall" before using deadly force. See C.R.S. Chap. XXII, Div. IV, §§ 28-30 (1868). Several versions of Colorado's statute describing this privilege failed to contain any reference to a duty to retreat before a person could use physical and deadly force in self-defense. See, e.g., § 40—2—13, 3 C.R.S. (1953); § 40—2—13 (1963).
When the General Assembly adopted the statute that became section 18—1—704——Colorado's current self-defense statute——the legislature expressly noted that the statute codified Colorado's common law of self-defense, including the "no duty to retreat" doctrine. In the comment to the section, the legislature stated, "Subsection (2) omits the doctrine of 'retreat to the wall' which has never been the law in Colorado." See § 40—1—804, 12 C.R.S., cmt. (1971 Supp.). In addition to the legislature's comment, we specifically noted in Idrogo that section 18—1—704(2) "contains no language reflecting any intention by the General Assembly to revive the doctrine of retreat." See 818 P.2d at 755.
Like earlier versions of the self-defense statute, section 18—1—704 defines the circumstances under which a person may use physical force, including deadly force, in self-defense. Under section 18—1—704(2), a person's use of deadly force is justified only if the person reasonably believes that a lesser degree of force is inadequate, and either: (a) the person has reasonable grounds to believe, and does believe, that he or another person is in imminent danger of being killed or receiving great bodily injury; (b) the other person is using or reasonably appears to be using physical force against someone while committing a burglary; or (c) the other person is committing or reasonably appears about to commit kidnapping, robbery, sexual assault, or assault. See § 18—1—704(2). Thus, under section 18—1—704(2), a person who faces one of the factual circumstances set forth in 704(2)(a)-(c) and who reasonably believes that a lesser amount of force is inadequate is entitled to use deadly force in self-defense.
The statute defines two categories of persons who are not justified in using physical force under any circumstances. First, a person may not claim self-defense if the person, with intent to cause bodily injury or death to another person, provoked the use of unlawful physical force by that other person. See § 18—1—704(3)(a). Second, a person may not claim self-defense if the physical force defended against is the product of a "combat by agreement not specifically authorized by law." See § 18—1—704(3)(c). The statute contains no exceptions that would permit a person fitting under either subsection 704(3)(a) or 704(3)(c) to use physical force in self-defense.
Along with the two categories of persons who may not assert the privilege of self-defense to justify the use of physical force, the statute defines a third category of persons——i.e., "initial aggressors"——who must retreat before employing physical force in self-defense. The statute denies an "initial aggressor" the privilege of using physical force in self-defense unless the initial aggressor withdraws from the encounter and "effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force." § 18—1—704(3)(b). As we explained in Idrogo, this section "expressly requires retreat before physical force is justifiable where the defendant is the initial aggressor." 818 P.2d at 756 (emphasis added). See also People v. Willner, 879 P.2d 19, 22 (Colo. 1994).
Thus, section 18—1—704 establishes the rights of four categories of persons with respect
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