Whether the security guard who shot and killed a Denver demonstrator over the weekend will be able to successfully argue in court that he acted in self-defense will depend on the particular nuances of the case, Colorado legal experts said Monday.
Doug Richards, who is working with the family of Matthew Robert Dolloff, 30, called the shooting tragic Monday, and said that Dolloff fired only when he was attacked. Dolloff shot and killed Lee Keltner, 49, toward the end of two opposing demonstrations downtown, with one billed as a “Patriot Rally” and the other a “BLM-Antifa Soup Drive.”
“This was a very clear case of Matt acting in self-defense,” Richards said.
Dolloff has not yet been charged by prosecutors but is being held by police on suspicion of first-degree murder.
Under Colorado law, someone can use deadly force in self-defense only if that person reasonably thinks using less force won’t be sufficient, and the person reasonably believes he or someone else faces an immediate threat of being killed or seriously hurt.
There is no duty to retreat under state law, but the action taken in self-defense must be generally proportionate to the attack, attorneys said.
“The way I used to explain it to juries is there are two fundamental components of self-defense,” said Stan Garnett, former district attorney in Boulder County. “The first one is the perception of the person involved in it — what did they reasonably believe was happening? And the second provision is proportionality. Did they respond in a manner that was appropriate and proportionate?”
“If someone comes at you and they are going to punch you, you can’t take out a gun and shoot them,” said attorney Jacob Kartchner. “The amount of self-defense needs to be requisite with the threat presented against you.”
Keltner’s family told The Denver Post he went downtown Sunday to support law enforcement. Toward the end of the rallies, he got into a confrontation with Dolloff — it’s not clear how it started, but photos taken by a Post photographer show at one point Dolloff touched Keltner in the chest, then Keltner appears to have slapped Dolloff in the face. The two men stepped back from one another before Keltner fired a can of pepper spray toward Dolloff, and Dolloff shot Keltner from a few feet away, according to the photos.
Whether Dolloff’s decision to fire was reasonable will depend on myriad factors, attorneys said, such as his state of mind, what words were exchanged and whether he knew Keltner was armed with pepper spray or thought he may have had a gun.
Dolloff was working as a contracted security guard for 9News when he killed Keltner, though city officials say he was not licensed for such work in Denver.
Under state law, Dolloff also can’t claim self-defense if he started the confrontation, unless he tried to end it and communicated that to Keltner, and Keltner nevertheless attacked again, attorneys said.
All of those factors will be part of the determining whether Dolloff held reasonable beliefs and took reasonable actions, said Ken Eichner, a defense attorney and former prosecutor.
“Once you get into the courtroom, then you really get into the weeds,” he said. “A person (spraying) another person with pepper spray might create a situation where responding with a gun might be considered a reasonable force… But it could be the other way, too. Other people might think using a gun for pepper spray is absurd. It’s going to be a hotly contested fact.”
Updated Oct. 13, 2020 This story has been updated to clarify the sequence of events following the publication of the full set of photos taken by a Denver Post photographer.