Don’t Ask The Sheriff To Make Your Day

Can you pull a gun on a sheriff’s deputy delivering legal papers to you if he enters your house without a warrant? A unanimous Colorado Supreme Court held Monday that a jury will decide that question after hearing all the facts.The case decided by the Colorado Supreme Court on Monday was a first step in untangling the larger issue of when a citizen’s right to defend his home with a gun is a legitimate way resist governmental authority.

What Happened?

It all began when someone brought a lawsuit against James Jay Doke.  In every lawsuit the person sued must be “served” with “civil process” which means that legal papers are hand delivered to them or another proper person.  This task is often carryed out by a sheriff’s deputy.

According to the court, here is what happened:

Three Weld County sheriff’s deputies arrived at James Doke’s home to serve him with civil process. The deputies were in uniform. Serving process for members of the public was among their regular duties. Three deputies were assigned to this task because the sheriff’s department had previous experience with Doke’s avoiding civil process and being uncooperative with law enforcement officers.

Doke’s property is in a rural area of Weld County. His home is one of several structures on the property, and he operates a sod farm on the property. The residence is partially visible from an adjacent county road. A sign posted in the driveway reads “No Trespassing – Stop.” At the front door, a second “No Trespassing” sign hangs above the doorbell. No gates or fences block the entry of the property or the residence.

The deputies rang the front doorbell. There was no response, but they observed movement within the home. After several minutes, they walked on a paved pathway to the back of the home and then up the stairs of the back porch. Through a window in the back door, one of the deputies identified Doke inside the residence sitting in a recliner chair with his eyes closed. The deputy identified himself from outside the door and pounded on the door, but Doke remained seated with his eyes closed. The deputy remained on the porch and attempted to elicit a response from Doke for approximately ten minutes.

Another deputy contacted the commander and advised that there may be a medical problem because Doke was not responding. The commander recommended that the deputies open the door to determine if Doke was stable, but to wait for a medical unit to arrive. One of the deputies opened the back door six to eight inches and announced that he was a sheriff’s deputy there to serve papers. He closed the door when a large dog approached but then reopened the door and announced that he was calling for a medical unit. The deputies did not call for medical assistance at any time during the incident.

At that point Doke opened his eyes. He looked at the deputy and grabbed a shotgun located by the front door. The deputies withdrew from the doorway and ordered Doke to put down the gun. Doke locked his door and remained inside despite numerous orders to come out.

Did The Deputies Break The Law?

It isn’t obvious who, if anyone, was violating the law in this situation, and the Colorado Supreme Court didn’t resolve that question on the merits in Doke’s case.

Sheriff’s deputies, and other third-party process servers, are allowed by state law to ignore some laws that don’t involve physical injury to another person. For example, process servers and deputies who are carrying out their duties usually are immune to laws against trespassing. Deliberately undermining legitimate efforts to deliver legal papers through some improper means can constitute the crime of obstruction of justice.

Also, under certain circumstances, citizens have a duty to follow the orders of a sheriff’s deputy.

These powers of sheriff’s deputies have to be weighed, however, against the requirements of the constitution.

The constitution ordinarily requires law enforcement officers to obtain a warrant based upon probable cause in order to search your home, or to seize property from it.  Normally, if law enforcement obtains evidence in violation of the constitution, it cannot be used against you in a court of law. 

Whether the delivery of legal papers to someone known to be on the premises is either a search or a seizure or is otherwise restricted by the constitution is still a legal gray area.  The Colorado Supreme Court reserved that question for another day in this case.  It reached its decision by assuming for the purpose of argument only that it the deputies did break the law by entering Doke’s house without a warrant. 

Did Doke Commit A Crime?

Why would Doke even consider aiming a gun at a uniformed sheriff?

In Colorado, it is a felony to aim a gun at someone in a manner that indicates that you might use it if provoked. This crime is known as menacing. But there are exceptions, called justifications, to this rule. Justification is an affirmative defense to the crime of menancing. Colorado’s best known justification is called the “Make My Day” law.

Colorado’s Make My Day law allows homeowner’s to use deadly force to repel people who have unlawfully entered their homes. But the Make My Day law allows this use of force only if the homeowner reasonably believes that the invader also intends to or has committed a crime other than mere unlawful entry.

For example, if a burglar enters your home and is carrying away your jewelry, you may draw a gun on the burglar in order to make the burglar leave your home. You may also shoot the burglar if this is necessary to remove the threatening criminal from your house. The Make My Day law was passed in response to cases that had held that an armed homeowner had a duty to flee their own homes if flight could prevent anyone from getting hurt.

Doke is arguing in this case that the Make My Day Law makes it legal for him to use a gun to repel anyone unlawfully entering his home, even a uniformed sheriff’s deputy without a warrant who is serving civil process.

What Happened Next?

In Doke’s case, after the initial incident concluded, the sheriff obtained a warrant calling for a search of his house and his arrest on charges of menacing, obstructing a peace officer and failure to leave premises or property upon request of a peace officer. According to the court:

Ultimately, a SWAT team entered the residence and arrested Doke. Later that night, a fourth deputy prepared an affidavit in support of a search warrant based on information given by the three deputies present during the incident. A warrant was issued, and the search revealed a twelve-gauge shotgun.

At the pre-trial stage of the case, Doke asked the judge to throw out all evidence of his response to the deputies. He argued that the deputies had violated his constitutional rights when they trespassed into his house to serve him with process and that the evidence that they secured as a result of this constitutional violation should be kept out of court.

If Doke successfully kept out this evidence, the menancing charges would have been thrown out. In addition, Doke would have established the precedent that no court could ever consider evidence that someone used inappropriate or excessive force to resist police officers engaged in an unlawful warrantless search or seizure.

The Colorado Supreme Court unanimously disagreed with Doke. It ruled that while the constitution excludes evidence of some other crime obtained in an unlawful search, that it does not exclude evidence related to crimes that may have been committed by someone in reaction to an unlawful search and seizure.

What Happens Now?

Doke hasn’t lost his case, yet. But he won’t win on a technicality. He will have to incur the time and expense of a jury trial on the menacing and other charges.

To acquit him, the jury will have to believe that he had justification under the Make My Day Law to draw his shotgun on three uniformed sheriff’s deputies. This will require him to do two things. He will have to convince a judge to instruct the jury that it was unlawful for the deputies to enter his home. Then, the jury will need to believe that Doke reasonably believed that the deputies intended to commit a crime other than merely unlawfully entering his home.

Given that the deputies announced their lawful purpose to deliver legal papers to Doke, and the fact that their uniforms made them hard to confuse with burglars, this will be a difficult defense for Doke to establish.


  1. The article fails to mention that it was late at night and very dark outside. Why would more than one person be dispatched for simple service and why would these people pound on doors and windows acting delinquent?

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