Colorado Supreme Court Says: No Duty To Retreat in Self-Defense Case

In People v Monroe (18SC708, decided 29 June 2020), the Colorado Supreme Court held that “in light of Colorado’s long-standing no-duty-to-retreat rule which permits non-aggressors to stand their ground when acting in self-defense,” a prosecutor may not argue that a defendant’s failure to retreat undermines the reasonableness of her self-defense argument.” As a result, a defendant’s conviction of attempted murder and assault was reversed.

Defendant Monroe boarded a city bus and sat in the rear. Almost immediately, according to the court’s decision, she got into an argument with another passenger (“the victim”). At some point Monroe pulled out a pocketknife. The victim pulled a cell phone out of his pocket and told Monroe he was going to call the police. At trial, witnesses testified that at almost the same time the victim reached into his pocket, Monroe began stabbing him in the neck. Monroe exited the bus and was arrested later that day.

At Monroe’s trial, the prosecutor argued that although Monroe had no legal duty to retreat, she had a “clear line of retreat” and that “she could have backed away if she were actually afraid.” Over defense objections the trial judge instructed the jury that although Monroe had no duty to retreat, they could consider Monroe’s failure to retreat as relevant to whether she actually believed that she faced an imminent use of unlawful force. The jury found Monroe guilty of first degree assault and attempted first degree murder. The Supreme Court explained Colorado’s “stand your ground” laws: In Colorado, a person may use physical force against another “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.” § 18-1-704(1), C.R.S. (2019). “In Colorado,” the Court continued, “only initial aggressors must retreat before using force in self defense.” Cassels v. People, 92 P.3d 951, 956 (Colo. 2004).

“So, a non-aggressor may assert self-defense without (1) considering whether a reasonable person would retreat to safety rather than resorting to physical force, or (2) actually retreating from an attack even if she could safely do so.”

Accordingly, the Court ruled, “The prosecution may not argue that a defendant is barred from acting in self-defense unless she first retreats from an encounter.”

The Court went further by holding that, agreeing with Monroe’s argument, it prohibits “for any purpose” a prosecutor to argue that a defendant’s failure to retreat should be considered by a jury.

Supreme Court distinguished away other cases where the defendant was already in a safe place but decided to confront the victim. That, held the Court, makes the defendant “the initial aggressor” and therefore the jury can consider the reasonableness of the self-defense argument.

In conclusion, held the Court,  Colorado is “categorically prohibiting argument regarding a defendant’s failure to retreat.” Monroe’s conviction was vacated and remanded back for a new trial.

Two dissenting judges argued that the decision, in essence, goes too far, in that it was not improper for the prosecutor to ask the jury to look at the evidence and decide whether defendant’s failure to retreat was reasonable.