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Silverman: Normal rules of self-defense don’t apply when your house is invaded

The legal battle over the January 6 insurrection at the U.S. Capitol — the people's house — has begun. America needs justice.

January 6 makes me feel bad. Violent crimes are traumatic that way. Anniversaries often trigger bad feelings for crime victims. Our People’s House was attacked by violent intruders. Many Americans felt personally violated by this despicable act.

These invaders’ goal was to stop the counting of electoral votes. Legislators indeed had to run and hide. So did the vice president. Confederate flags and Trump flags appeared. Property was stolen. Vile vandalism occurred. Police were pummeled (140 injured). “Hang Mike Pence” was chanted, and his gallows constructed. Rioters searched for Nancy Pelosi.

Normal rules of self-defense don’t apply when your house is invaded. A 37-year old Colorado Springs transient found this out the hard way on Jan. 19, 2017. 

Craig Silverman

After breaking into the basement of a multi-unit Victorian home, this intruder rested his large 6’5” body inside a basement storage closet before being roused by a lawful building tenant. Patrick Rau’s girlfriend had alerted him to the intruder, and Rau responded with a headlamp and a revolver. 

As the Colorado Supreme Court explained last Monday, “Rau nudged D.R. with his foot in an attempt to wake him up. As Rau did so, he told D.R. that D.R. wasn’t supposed to be there and needed to leave immediately. D.R., who at that point was only about five feet away from Rau, rose to his knees, became aggressive, began yelling unintelligibly, and proceeded to throw things around.”

“Rau believed that D.R. had used drugs while in the basement and was under their influence. As D.R.’s behavior escalated, Rau became scared and warned D.R. multiple times that he had a gun. None of the warnings altered D.R.’s behavior, however, so Rau said he would ‘count to five’ and if D.R. hadn’t left when he finished counting, he would shoot. 

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“Rau loudly counted to five. Not only did D.R. refuse to leave, his menacing and intimidating behavior continued. Fearing that D.R. was going to charge at him, Rau fired his gun. D.R. died from the gunshot wound.”

The DA pursued a charge of second-degree murder (heat of passion), a class 3 felony. Rau’s lawyer, Tim Bussey, an experienced ex-prosecutor, argued Rau deserved immunity through Colorado’s “force-against-intruders” statute. District Court Judge Jann DuBois held a hearing, then agreed, and dismissed the case

The El Paso County DA appealed and lost last Monday. Colorado Supreme Court Justice Carlos Samour Jr. authored the unanimous opinion, nicely explaining this common basement was part of apartment tenant Rau’s dwelling, so Rau was within his rights to shoot dead the intruder, politely referred to as the unhoused man known as D.R.

Coloradans know this statute as Colorado’s Make my Day Law. However, Justice Samour discredited that misnomer, derived from Clint Eastwood portraying taciturn San Francisco Police Department Inspector Harry Callahan in the movie, “Sudden Impact.”

Samour wrote: “Though wide-ranging, the statute’s safe harbor in no way permits an occupant of a dwelling to, à la Dirty Harry, egg on intruders to do something so as to have an excuse to shoot them. Thus, while the catchy nickname has stuck around, our preference is to refer to the statute by its citation or as the ‘force-against-intruders’ statute.”

As for Rau now, Bussey told me his client wants to move on, and he’s “really a good guy, hard-working guy, keeps to himself, very shy, and not a man of many words.” 

Donald Trump is the opposite. Besides, Trump has told us he knows the best words. But we heard zero Trump words while the January 6 riot raged at our People’s House. Over three hours passed. Democracy teetered. 

When Trump broke his public silence on Insurrection Day, he needed three takes. Never forget his published words of love and support to his Capitol invaders while repeating his Big Lie that “it was a landslide election and everyone knows it, especially the other side.”

Forever remember how Trump and the MAGA-world revered Ashli Babbitt, claiming she was “murdered” for no reason. U.S. Capitol Police Lt. Michael Byrd told investigators and America he displayed “the utmost courage” when he shot dead Babbitt “who was posing a threat to the House.”

Any fair review of the circumstances exonerates Lt. Byrd. He saved countless lives, and perhaps American democracy.

Colorado’s precious statehouse was also attacked during 2020. That’s our house, too. It was sickening. Thank goodness rioters didn’t get in, and no one got shot. We must band together to stop violence in Denver, Colorado Springs and all over Colorado. 

A year after Babbitt’s death, AP detailed her violent propensities. How twisted is this political environment when Republicans support delusional rioters, who attacked the police?

Let the courts have the final word. Now that the Department of Justice is charging seditious conspiracy, the legal battle has begun. Trump’s plot is unraveling. Congressional committees and grand juries are gathering facts galore. But will there be time? 

Next January, Trump might be made actual, or figurative, Speaker of the House. Trump’s dwelling again at our White House is unthinkable, but possible. 

Violent crime victims feel better when justice is delivered. America needs justice to happen before Jan. 6 arrives again. 


Craig Silverman is a former Denver chief deputy DA who also has worked in the media for decades. Craig is columnist at large for The Colorado Sun. He practices law at the Denver law firm of Springer & Steinberg, P.C. and is host of The Craig Silverman Show podcast.


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