It is a universally held principle that people have the right to defend themselves from physical harm, even when that defensive action would normally constitute a crime such as assault.

However, it begs an important question: where is the line between assault and self-defense?

Generally speaking, in order for a violent act to be considered self-defense, it needs to meet certain criteria. For example, the person must be able to demonstrate that there was an imminent threat of harm or perceived harm, and that retreating from the threat was not possible. Likewise, assault laws in Colorado also have clear criteria.

Below we’re going to break down what constitutes self-defense, and how acts of perceived self-defense can cross the line into Colorado assault charges.

Criteria for Self-Defense in Colorado

Generally speaking, self-defense is defined as the right to prevent suffering from physical force or violence inflicted by another through counteracting that force or violence. Although this seems like a relatively simple definition, it quickly becomes complicated when applied to real-life situations.

For example, what would be considered a sufficient amount of violence or force needed to defend oneself? What if the intended victim provoked the attack, then “defended” against this provoked act? Does a victim need to retreat from harm when possible instead of using force? What if the victim reasonably perceives a threat, even if the threat does not exist?

There are a few criteria used to draw the line between self-defense and assault, described below.

Imminent Threat

Self-defense only justifies the use of force if it is used to deter an immediate threat. The threat can be verbal or physical, so long as it puts the intended victim in immediate fear of physical harm.

However, offensive words without a direct threat of physical harm do not constitute an imminent threat.

Further, the use of force is no longer justified once the threat has ended. For example, if the intended victim uses force to deter the aggressor and the aggressor retreats, no further physical force is needed, and any further force could constitute assault.

Reasonable Fear of Harm

In some cases, self-defense is justified even if the perceived aggressor did not actually mean any harm. In these situations, the perceived victim must be able to prove that a “reasonable person” in the same situation would have perceived an immediate threat of harm.

Proportional Response

The degree of force used in self-defense must be proportional to the threat in question. The intended victim must only use the amount of force that is required to remove the threat of harm.

If the threat involves the use of deadly force, the intended victim can use deadly force in self-defense. However, if the threat only involves minor force and the intended victim uses force that could cause grievous bodily harm or death, this is not justified and the claim of self-defense is not valid.

Duty to Retreat

In order to justify the use of deadly force, the intended victim must be able to establish that there was no way to retreat from the threat in question. However, if the threat occurs in the intended victim’s home, the use of deadly force may be justified under Colorado’s “Make My Day” law, described below.

Colorado’s “Make My Day” Law: The Self-Defense Exception

Under Colorado’s “Make My Day” law, the occupants of a dwelling are permitted to use physical force – including deadly force – against an intruder if they believe that the intruder is there to commit a crime or constitutes a threat of physical harm. In other words, the duty to retreat does not apply if an act of self-defense occurs in the intended victim’s home.

Importantly, the law does not apply to acts of self-defense that occur outside of the intended victim’s home.

What all of this means is that self-defense is a useful but tricky defense strategy if you find yourself up against assault charges. Coloradans have the right to defend themselves – but only when certain factors are at play.

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.