“82-year-old Robert Wallace said in February that he looked out his window and saw two men hooking his flatbed trailer up to their pickup,” kdvr.com reports. “He yelled at them to stop, but they sped away, stealing his trailer. He told police he fired two shots at the pickup. Minutes later, police say 32-year-old Damacio Torres dropped 28-year-old Alvaro Cardona off at a hospital emergency room with a gunshot wound to the face.” Wallace is looking at twelve felony counts, including four counts of attempted first degree murder. The news station’s Old Testament talking head pronounces that “something doesn’t feel right.” Yes, well, Colorado law’s clear on this one . . .
18-1-706. Use of physical force in defense of property.
A person is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704.”
So you can you can push and shove a thief or thieves around to defend your stuff, but you can’t shoot the bastards—unless you’re in danger of losing your life. And there are caveats in that regard, as well, of course. The relevant section states:
(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
Imminence is a large factor in determining justifiable use of deadly force. It’s not enough that your life’s in danger. Your life has to in danger right now.
Common sense suggests that Mr. Wallace’s life was not in danger as the felons left the scene of the crime with his trailer. He says they tried to run him over. Given that the area surrounding his house is built-up, it’s hard to imagine that Mr. Torres and Mr. Cardona would have had enough time/space/distance to achieve the necessary velocity to run him over.
Perhaps they did make the attempt. But still, did Mr. Wallace have to shoot their pickup to prevent the felons turning him into road kill? Is there a direct, causal link between the fact that he wasn’t run over and his discharge of a deadly weapon?
If you’re about to be squashed by a car driven by murderous felons, you might want to just step out of the way, rather than shoot the driver. That could be considered the “reasonable” response. And reasonability is a big deal in the justifiable use of lethal force business.
(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
The principle is called “proportionality.” Is the force used proportional to the threat? As Mr. Wallace was not threatened with force, I’m thinking no.
In most states, you can use slightly more force than the force being used against you—to stop the confrontation. But you can’t go hog wild; if someone shoves you, you can’t shoot them. And not if they’re taking your stuff, oddly enough.
I’d also like to point out that it’s only a damn trailer. Mr. Wallace is extremely lucky that the thieves didn’t take umbrage at his armed assault, turn their truck around, get out and beat him to death. Strategically, the best gunfight is always the one you avoid (providing you live to tell the tale).
(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or
Again with the imminence. BTW: great bodily injury usually means the possible loss of a major body part or a sense.
(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or
Imminence front. And center. Still.
(c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.
Kidnapping has its own set of rules. Rest assured that if someone tires to kidnap your child, you can plug them. That’s “child” not “trailer.” But even if you were preventing a kidnapping with a gun, it would still be very helpful to try something else first. Like, I dunno, shouting “let her go!”
There are always extenuating circumstances. For example, if Torres and Cardona HAD tried to assault Mr. Wallace and he’d shot them, his status as an octogenarian would have been taken into account by the District Attorney. If his grandkids had been playing nearby, that too would have been a factor.
Everything is a factor: time of day, crime levels in the neighborhood, Mr. Wallace’s record, the thieves’ record, astrological forecasts, everything. The prosecutors look at the totality of a shooting and ask “what would a reasonable person—of the same age, sex, physical condition, etc.— in the same circumstances have done?” If the answer is shoot the bastards (i.e no jury in the world would convict him and I’m running for office), you’re good. If not, not.
(3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:
(a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or
You can’t start a fight and then finish it with a firearm. Even if you do so in self-defense, you’re still up shit creek. That’s one good reason to NEVER be rude or aggressive whilst carrying a gun. See? An armed society IS a polite society. You can thank the lawyers later.
(b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he 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; or
So you start a fight, try to stop it and your combatants come at you with a knife or gun or a two-by-four. THEN you can shoot them in self defense. It didn’t happen here, but it’s interesting that Colorado considers an attempt at de-escalation a kind of reset button.
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
A duel? Seriously? I have no idea what this is about.
Bottom line: don’t shoot anyone if you don’t have to. Remember: your results may vary. Google your state’s laws to be sure who you can and can not shoot, when and how many times. In all cases, say “I thought my life was in danger” and nothing much else until you get a really good lawyer.