Make my Day... in the office?

Question

Assume Adam, Esquire, is working in Colorado. He has an office different from his home. Let's say Downtown in a sleepy town that has no extra gun control laws. It's 3 AM and he is working on the filings for the next day, the light visible from the front street, but not the back. His trusty Taurus Public Defender is sitting on a pile of files next to him.

Butch decides that he wants to break into the office of Mr. Adam to try and steal something. Butch picks the lock and sneaks into the front room of the office. He entered from the back of the building and didn't see the light, so is not suspecting someone would be there. As a result, he isn't very silent.

Adam hears the commotion and guns Butch down with a snarky remark of "Make my Day".

He knew that Butch committed trespassing besides the breaking and entering - nobody is allowed to be there but him after closure. And Adam reasonably believes that Butch either is attempting to commit theft, destruction of property, or might target Adam to do him harm. That qualifies for the Make My day.... if it's in a dwelling.

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But is a closed office after service hours, but separate from the permanent residence, a dwelling that allows to invoke Colorado's “Make My Day law” CRS 18-1-704.5?

Answer 1

No

Section 18-1-704.5. (1) says that :

The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes. (*emphasis added)

Subsections (2), (3), and (4) all refer to "any occupant of a dwelling" as the class authorized to use force by this section. An offie is not a dwelling.

Section 18-1-901. Definitions says:

(g) "Dwelling" means a building which is used, intended to be used, or usually used by a person for habitation.

Section Section 18-1-704 provides that:

(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.

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

(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

(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

(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.of person's authored by this law to use force

Under that provision, the use of deadly force does not seem clearly justified. It is highly questionable that "a lesser degree of force is inadequate". Any conclusion that the intruder represents an "imminent use of unlawful physical force" seems dubious, but I can't say what a court might find. This law is fairly recent, there may be no published case law for it.