Peo v. Ez-Zahir

• Court: Colorado Court of Appeals
• Decided: April 16, 2026
• Docket: 23CA0011
• Status: Unpublished

Opinion

23CA0011 Peo v Ez-Zahir 04-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0011 City and County of Denver District Court No. 22CR365 Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Chakib E. Ez-Zahir,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE HARRIS Schutz, J., concurs Fox, J., dissents

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 16, 2026

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kelly A. Corcoran, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 A person commits second degree assault if he intentionally

causes bodily injury to a paramedic with the intent to prevent the

paramedic from performing a lawful duty. See § 18-3-203(1)(c),

C.R.S. 2025.

¶2 Defendant, Chakib E. Ez-Zahir, was convicted of attempted

second degree assault after he struck the forearm of a paramedic

who was trying to transport him to the hospital for nonconsensual

medical treatment. On appeal, he contends that the trial court

erred by refusing to instruct the jury on the scope of the

paramedic’s legal authority to use force to administer treatment and

that the error lowered the prosecution’s burden to prove an element

of the charged offense and to disprove his self-defense claim.1 We

agree, and we therefore reverse his conviction and remand the case

for a new trial.

1 Ez-Zahir also argues that the trial court erred by failing to include

as an element in the attempted second degree assault jury instruction that his conduct was not legally authorized by the affirmative defense of self-defense. In response to that argument only, the State counters that Ez-Zahir was not entitled to a self- defense instruction in the first instance. In light of our disposition, we need not determine if the trial court erred in this respect. But see COLJI-Crim. G2:01 (2025) (listing, as an element of attempt to commit a crime, that the defendant’s conduct was not authorized by an affirmative defense).

1 I. Background

¶3 When Ez-Zahir checked in for an appointment in an office

lobby, the receptionist observed that his knuckles were scraped and

bleeding and that he appeared intoxicated. A coworker told the

receptionist that before Ez-Zahir arrived, she had seen him

stumbling in traffic and fall. Ez-Zahir acknowledged that he had

fallen but said he was fine. The receptionist called 911.

¶4 Two female paramedics arrived. The attending paramedic2

approached Ez-Zahir and tried to assess his vital signs, even

though he indicated that he did not want to speak with her, told her

not to touch him (as she recalled that he said or implied that “he

was Muslim”), and repeatedly motioned for her to move away from

him. Because Ez-Zahir appeared to be injured but would not

cooperate with a medical assessment, the paramedics determined

that he had to be taken to the hospital, and because he appeared to

be intoxicated, they determined that he lacked the decision-making

capacity to refuse treatment. On learning that the paramedics

2 The paramedics explained that when they work in a pair, each

paramedic is assigned a distinct role. The “attending” paramedic cares for the patient, while the “driving” paramedic manages the scene and drives the ambulance.

2 intended to transport him to the hospital, Ez-Zahir became

increasingly agitated, reiterated that he did not consent to

treatment or them touching him, and attempted to leave by walking

to the elevator bank.

¶5 The driving paramedic was standing between Ez-Zahir and the

elevator. Ez-Zahir moved toward her, with “both of his arms up in

the air, fists closed.” The driving paramedic stepped backward

against the elevator bank wall and put her hand out to stop Ez-

Zahir. He swung his arms downward, striking the driving

paramedic’s forearm with one of his closed fists. The driving

paramedic said, “Ow, you hit me,” and Ez-Zahir “immediately said,

‘I’m sorry,’” and walked back into the lobby area and sat down.

¶6 The prosecution charged Ez-Zahir with second degree assault

of an emergency medical care provider, violation of bond conditions,

and attempted third degree assault.3

¶7 At trial, both paramedics testified that throughout their

contact with Ez-Zahir, they followed the Denver Health Paramedic

Division protocols. According to the attending paramedic, Ez-Zahir

3 The attempted third degree assault charge related to Ez-Zahir’s

conduct while in the ambulance.

3 was a patient (because he had injuries) who lacked decision-making

capacity (because he was intoxicated), so under the protocols, the

paramedics “had to transport him” to the hospital for further

evaluation, “[r]egardless of whether or not he wanted to be

transported.” The attending paramedic clarified that the protocols

did not require the patient to have a suspected “acute illness or

injury” for paramedics to order nonconsensual transport to the

hospital — any injury was sufficient.

¶8 Ez-Zahir defended on the theory that he acted in self-defense.

He argued that, at the time he struck the driving paramedic, he

reasonably perceived “that he was about to be taken [to the

hospital] against his will” to be subjected to nonconsensual medical

treatment, and he used a reasonable amount of force to repel the

“threat of an imminent unlawful use of force against him.”

¶9 The trial court agreed to instruct the jury on the affirmative

defense of self-defense. Ez-Zahir then asked the court to give a

supplemental instruction defining the scope of the paramedics’

lawful authority to subject him to nonconsensual medical

treatment. The instruction was necessary, he argued, to show that

the paramedics could not lawfully use force to transport him to the

4 hospital for treatment, thereby negating the “lawful duty” element of

second degree assault and supporting his self-defense claim.

¶ 10 Ez-Zahir’s proposed instruction was adapted from section

18-1-703(1)(e), C.R.S. 2025, and the related pattern jury

instruction, COLJI-Crim. H:10 (2021). The statute provides that

the use of physical force against another person that would

otherwise be unlawful is “justifiable and not criminal” under certain

circumstances. Those circumstances include when a physician or

“a person acting under his or her direction” uses “reasonable and

appropriate physical force for the purpose of administering . . .

treatment,” and the patient consents or, if the patient is not

“competent to consent,” the treatment is administered “in an

5 emergency” and the treating professional reasonably believes that “a

reasonable person . . . would consent.” § 18-1-703(1)(e)(I)-(II).4

¶ 11 Using section 18-1-703(1)(e) as a guide, Ez-Zahir tendered the

following instruction:

[The driving paramedic] was legally authorized to use or attempt to use physical force upon another person if:

1. She was a person acting under the direction of a duly licensed physician, and

2. She used or attempted to use a [sic] reasonable and appropriate physical force for the purpose of administering a recognized form of treatment that she reasonably believed to be

4 Section 18-1-703(1)(e), C.R.S. 2025, provides as follows:

A duly licensed physician . . . or a person acting under his or her direction, may use reasonable and appropriate physical force for the purpose of administering . . . treatment that [the medical provider] reasonably believes [would] promot[e] the physical or mental health of the patient if:

(I) The treatment is administered with the consent of the patient, or if the patient is . . . incompetent [to consent], with the consent of his . . . [caretaker]; or

(II) The treatment is administered in an emergency when the [medical provider] reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

6 adapted to promoting the physical or mental health of the patient, and

3. The treatment was administered with the consent of the patient.

¶ 12 The court initially agreed that an instruction on the scope of

the paramedics’ lawful duties was likely necessary to accurately

instruct the jury on the applicable law. But the court ultimately

declined to give any supplemental instruction, primarily because

the proposed instruction was based on an affirmative defense, and

the court could not “figure out a way to fix” the proposed

instruction to fit the circumstances of the case. Instead, the court

decided that the jury could rely on the protocols to determine the

lawfulness of the paramedics’ conduct.

¶ 13 The jury found Ez-Zahir guilty of the lesser included offense of

attempted second degree assault and acquitted him of third degree

assault.5

5 The prosecution dismissed the violation of bond conditions charge

during trial.

7 II. Jury Instruction

A. Legal Principles

¶ 14 To obtain a conviction for second degree assault of an

emergency medical care provider, the prosecution must prove

beyond a reasonable doubt that (1) the defendant; (2) with the

intent to prevent an emergency care provider from performing a

lawful duty; (3) intentionally caused bodily injury to any person.

§ 18-3-203(1)(c). Thus, the prosecution must prove that the

emergency care provider — in this case, the paramedic — was

“acting lawfully” in the performance of her duties.6 People v.

Roberts, 626 P.2d 1161, 1162 (Colo. App. 1980); see also People v.

Southard, 276 Cal. Rptr. 3d 656, 664 (Ct. App. 2021) (“[I]n order to

6 Section 18-3-203(1)(c), C.R.S. 2025, the subsection of the second

degree assault statute under which Ez-Zahir was charged, does not define “lawful duty.” We disagree with the dissent that section 18- 3-201(2), C.R.S. 2025, provides any useful guidance. That provision, which applies to a different subsection of the second degree assault statute, explains that a peace officer, firefighter, or paramedic is “engaged in the performance of his or her duties” when he or she is engaged in (or present for the purpose of engaging in) “the performance of any duty, service, or function imposed, authorized, required, or permitted by law to be performed by” the peace officer, firefighter, or paramedic. But that definition just begs the question at issue here: What is the scope of the “duty, service, or function” that a paramedic is “authorized, required, or permitted by law” to perform?

8 be ‘perform[ing] a lawful duty,’ the officer must be acting lawfully.”

(citation omitted)).

¶ 15 Whether the paramedic was acting lawfully also controlled El-

Zhair’s self-defense claim. Under section 18-1-704(1), C.R.S. 2025,

a person has the right to use force to defend himself from the use or

imminent use of unlawful physical force by another person, and he

may use a degree of force that he reasonably believes is necessary

for that purpose. The touchstone of self-defense is a belief that one

is defending against the unlawful use of force. People v. Silva, 987

P.2d 909, 915 (Colo. App. 1999). The corollary to that proposition

is that a person is not justified in using force to defend against

another person’s lawful use of force. People v. Jones, 2018 COA

112, ¶ 29.

¶ 16 As an affirmative defense, self-defense is treated as an

additional element of the charged offense, and the prosecution

bears the burden of disproving the affirmative defense beyond a

reasonable doubt. Galvan v. People, 2020 CO 82, ¶ 21;

§ 18-1-407(2), C.R.S. 2025.

9 B. Standard of Review

¶ 17 A trial court has a duty to instruct the jury on all matters of

law applicable to the case. Riley v. People, 266 P.3d 1089, 1092

(Colo. 2011).

¶ 18 We review jury instructions de novo to determine whether, as

a whole, they accurately informed the jury of the governing law.

People v. Neckel, 2019 COA 69, ¶ 26. If they did, then we review the

court’s decision to give or not to give a particular instruction for an

abuse of discretion. People v. Cox, 2023 COA 1, ¶ 38.

C. Analysis

1. The Court Erred by Failing to Give an Instruction

¶ 19 The question presented on appeal is whether, to accurately

inform the jury of the governing law given the particular facts of the

case, the trial court was required to give an instruction concerning

the lawfulness of the paramedics’ conduct. We conclude that the

answer is yes.

¶ 20 The trial court must instruct the jury on the essential

elements of the crime charged. See People v. Fitchner, 869 P.2d

539, 543 (Colo. 1994). When an instruction tracking the statutory

language is insufficient to apprise the jury of the applicable law, the

10 trial court must tailor the instructions to the particular

circumstances of the case. Idrogo v. People, 818 P.2d 752, 754

(Colo. 1991). This includes a duty to provide the “particular

definition of an element of an offense if the element constitutes a

term that has acquired a technical or particular meaning, whether

by legislative definition or otherwise.” People v. Serra, 2015 COA

130, ¶ 50.

¶ 21 Two elements of attempted second degree assault are at issue

here. The prosecution had to prove beyond a reasonable doubt that

the paramedics were performing “a lawful duty” — i.e., acting

lawfully — and that Ez-Zahir was not acting in self-defense when he

hit the driving paramedic’s forearm — i.e., the paramedics were not

using or about to use unlawful force against Ez-Zahir.

¶ 22 In Roberts, a division of this court concluded that because

second degree assault of a peace officer under section 18-3-

203(1)(c) requires proof that the officers “were acting lawfully,” the

trial court “[i]s required to instruct the jury regarding the lawful

nature of the police activity.” 626 P.2d at 1162. In that case, the

defendant attempted to enter his ex-wife’s house; when the police

arrived, a “scuffle ensued,” and two officers were injured. Id. at

11 1161. The trial court instructed the jury on the law regarding an

officer’s right to forcibly detain a suspect and on the elements of

various uncharged crimes related to the defendant’s attempted

entry into the house. Id. at 1162. On appeal, the division held that

the instructions were necessary because the jury had to determine

whether the officers were performing lawful duties when they

attempted to restrain the defendant, leading to the scuffle. Id.

¶ 23 The Roberts division’s reasoning applies here. The jury could

not determine whether the prosecution had met its burden to prove

the “lawful duty” element of second degree assault unless it had

some basis for assessing the legality of the paramedics’ conduct.

¶ 24 Likewise, an instruction was necessary to allow the jury to

properly evaluate Ez-Zahir’s affirmative defense of self-defense.

“[W]hen the instructions, taken as a whole, do not adequately

apprise the jury of the law of self-defense from the standpoint of the

defendant,” the trial court must give a supplemental instruction.

People v. Garcia, 28 P.3d 340, 347 (Colo. 2001) (citation omitted)

(trial court erred by failing to give a no-duty-to-retreat instruction

when the defendant asserted the defense of self-defense); see also

Idrogo, 818 P.2d at 757 (“[W]here the question of whether [the

12 defendant] did in fact retreat was vigorously disputed, [the

defendant] was entitled to have the jury properly instructed on the

applicable law of non-retreat.”); People v. Roberts-Bicking, 2021 COA

12, ¶ 25 (in a multiple-assailants self-defense case, an instruction

tracking the self-defense statute is insufficient; the trial court must

instruct the jury to consider the totality of the circumstances in

assessing the reasonableness of the defendant’s belief that force

was necessary); Jones, ¶¶ 47-51 (court erred by not instructing the

jury that, under the force-against-intruders statute, the

homeowners’ use of force was lawful only if the defendant’s entry

into the home was knowingly unlawful because the lack of an

instruction improperly abridged the defendant’s self-defense

defense).

¶ 25 Ez-Zahir’s theory was that he reasonably believed the

paramedics were about to use unlawful force against him to

transport him to the hospital for treatment and that, in hitting the

driving paramedic’s forearm, he used a reasonable degree of force to

avoid that outcome. But that theory was viable only if the

paramedics did not have a legal right to forcibly usher him into the

ambulance. See Jones, ¶ 29. In agreeing to give the pattern self-

13 defense instruction, the trial court acknowledged that “the [alleged]

unlawful nature of th[e] [paramedics’] physical force is a question

for the jury.” But without an instruction, the jury could not know

whether the paramedics had a legal right to use force.

¶ 26 The State defends the trial court’s decision to reject the

instruction on the grounds that the instruction was not supported

by the evidence and “did not apply to the facts of th[e] case.” We

are not persuaded.

¶ 27 First, we disagree that, because the paramedics did not

actually use force against Ez-Zahir, the instruction was not

supported by the evidence. As we understand the trial court’s

reasoning, it read the first clause of the tendered instruction —

“[the driving paramedic] was legally authorized to use or attempt to

use physical force upon another person if” — to mean that the

paramedics had used or attempted to use force against Ez-Zahir.

And because the court determined that the paramedics did not

actually use or attempt to use force against Ez-Zahir before he

struck the driving paramedic, it determined that the evidence did

not support the instruction.

14 ¶ 28 But the instruction was not a comment on what had happened

during the paramedics’ interaction with Ez-Zahir. It was a general

statement of the law outlining the circumstances under which the

paramedics would be legally authorized to use force against a

patient.

¶ 29 As noted, under Colorado law, a person can use physical force

to defend himself only if he reasonably believes that another person

is using or will imminently use unlawful physical force against him.

§ 18-1-704(1). The instruction explained that if the statutory

circumstances were present, the paramedics’ use of force would

have been lawful, meaning that Ez-Zahir would not be justified in

using physical force against them. Conversely, if the statutory

circumstances were not present, any use of force by the paramedics

would have been unlawful, meaning that Ez-Zahir would be

justified in using physical force against them if he reasonably

believed that their use of force was imminent.

¶ 30 Therefore, in terms of evidentiary support, all that was

required to give the instruction was some evidence that Ez-Zahir

could reasonably have believed that the paramedics were about to

use force to subject him to nonconsensual medical treatment. See

15 People v. McKnight, 626 P.2d 678, 682 (Colo. 1981) (a party is

entitled to a jury instruction if there is sufficient competent

evidence to support it and it is consistent with existing law.). And

the trial court agreed that the evidence was sufficient in this regard.

¶ 31 The court acknowledged that under the circumstances, Ez-

Zahir’s assumption that the paramedics were “going to go hands-

on” was “fair game.” The court pointed to the attending paramedic’s

testimony that, when patients are intoxicated, she “usually say[s],

‘You don’t have a choice [about going to the hospital] because you

are intoxicated. I have to make medical decisions for you for your

safety.’” And one of the paramedics acknowledged that in trying to

check Ez-Zahir’s vital signs, she may have touched him without his

consent. We agree that given this evidence, Ez-Zahir could

reasonably have believed that his continued refusal to submit to

treatment would result in the paramedics’ imminent use of physical

force against him.

¶ 32 Because Ez-Zahir’s defense revolved around the lawfulness of

the paramedics’ actions, and there was some evidence presented at

trial supporting his theory, some additional instruction was

required to tailor the jury instructions to the case and to ensure the

16 jury had a basis to assess the lawfulness of the paramedics’

conduct. See Roberts, 626 P.2d at 1162; Idrogo, 818 P.2d at 754;

Garcia, 28 P.3d at 347.

¶ 33 That brings us to the question of whether Ez-Zahir’s tendered

instruction, based on section 18-1-703(1)(e), fit the facts of the

case — in other words, whether that instruction accurately

informed the jury of the scope of the paramedics’ lawful duties.

Adopting the trial court’s view, the State says no, because section

18-1-703(1)(e) provides an affirmative defense for a medical provider

accused of using unlawful force in the treatment of a patient, and

here, Ez-Zahir was the putative patient, not the medical provider.

¶ 34 The State does not dispute that the statute accurately states

the scope of a medical provider’s lawful authority to use force

against another person in connection with administering medical

treatment. Nor does the State explain (and it is not obvious to us)

why it matters that the accurate legal principle is styled as an

affirmative defense. See People v. Hayward, 55 P.3d 803, 805

(Colo. App. 2002) (“In discharging the duty to instruct the jury

properly on all matters of law, the trial court may instruct the jury

17 concerning a principle of law that is related to an issue in

controversy.”).

¶ 35 The dissent presents a new theory: that the paramedics were

not administering medical treatment in the office lobby — they were

merely attempting to transport Ez-Zahir to the hospital — and,

therefore, section 18-1-703(1)(e) does not apply. Setting aside the

fact that the State did not take that position in the trial court or on

appeal, and the trial court did not base its decision on that theory,

we think the dissent’s view is inconsistent with section

18-1-703(1)(e) and the record.

¶ 36 The statute authorizes a medical provider to use reasonable

and appropriate physical force “for the purpose of administering”

medical treatment. In other words, a medical provider is not limited

to using force to administer medical treatment; the force can be

used to facilitate or achieve the administration of the treatment.

See Merriam-Webster Dictionary, https://perma.cc/WX8F-PMYB;

Nash v. Mikesell, 2024 COA 68, ¶ 16 (in interpreting a statute, the

court must “give each word independent effect”). Here, the

paramedics were dispatched to administer medical treatment, they

attempted to administer medical treatment in the office lobby, and

18 they decided to transport Ez-Zahir for the purpose of administering

treatment at the hospital. Accordingly, we conclude that section

18-1-703(1)(e) fit the circumstances of the case.

¶ 37 Still, as the trial court correctly noted, Ez-Zahir’s tendered

instruction did not account for a medical provider’s right to use

force, under limited circumstances, even without a person’s

consent. But defense counsel agreed to include language from

subsection (1)(e)(II) in the instruction. And regardless, even when a

tendered instruction is incomplete or inaccurate, the trial court is

not “free to disregard [the defendant’s] request” for an instruction

necessary to implement his affirmative defense of self-defense.

Idrogo, 818 P.2d at 754; see also Garcia, 28 P.3d at 349 n.8 (even if

the defendant’s tendered self-defense instruction failed to

accurately state the law, the tendered instruction “put the trial

19 court on notice” that an instruction was necessary and, therefore,

the court had a duty to give the jury an accurate instruction).7

¶ 38 The point is not that the trial court had to give Ez-Zahir’s

tendered instruction or that it had to base a supplemental

instruction on section 18-1-703(1)(e) (though we see no problem

with the latter approach). The point is — and here, even the dissent

agrees — that the jury had to determine whether the paramedics

were engaged in lawful duties at the time of the alleged attempted

7 For this reason, we consider irrelevant whether the tendered

instruction constituted a theory of defense instruction or a supplemental instruction on the applicable law. Either way, the court had to inform the jury of the governing law. See Schuessler v. Wolter, 2012 COA 86, ¶ 22 (presenting the defendant’s theory of the case may “require discrete instructions on relevant, specific principles of law”).

20 assault.8 Because Ez-Zahir claimed, with record support, that the

paramedics were about to use unlawful force against him for the

purpose of administering medical treatment without his consent,

some accurate instruction on the scope of the paramedics’ lawful

authority to use force was necessary to assist the jury in making

that determination. See Roberts, 626 P.2d at 1162; Garcia, 28 P.3d

at 347.

2. The Error Was Not Harmless

¶ 39 The parties dispute the applicable standard of reversal. Ez-

Zahir argues that we should review the error under a constitutional

8 The dissent argues that section 27-81-111, C.R.S. 2025, more

accurately sets forth the scope of the paramedics’ authority to use force and that, if the court had given an instruction based on section 18-1-703(1)(e), the prosecution could have sought an additional instruction based on section 27-81-111. Section 27-81-111, however, applies to emergency commitments. The statute authorizes “an emergency service patrol” to take into “protective custody” a person who is incapacitated by alcohol or drugs and is “clearly dangerous” to himself or others to effectuate an emergency commitment to an “approved treatment facility.” § 27-81-111(1)(a). There was no evidence that the paramedics were part of an “[e]mergency service patrol,” § 27-81-102(7), C.R.S. 2025, that Ez-Zahir was clearly a danger to himself or others, or that the paramedics intended to, or did, initiate an “emergency commitment” to a “treatment facility,” § 27-81-111(7). Nonetheless, the dissent’s reliance on section 27-81-111 supports the conclusion that the jury needed some legal basis for determining the lawfulness of the paramedics’ conduct.

21 harmless error standard, while the State says that the

nonconstitutional harmless error standard applies. See James v.

People, 2018 CO 72, ¶ 19 (explaining harmless error standards of

reversal). Generally, when an instructional error lowers the

prosecution’s burden of proof, which occurs when the court

misinstructs the jury on self-defense, the error is subject to

constitutional harmless error analysis. See Pearson v. People, 2022

CO 4, ¶ 16. But we need not definitively resolve the parties’ dispute

because we conclude that reversal is warranted even under the

nonconstitutional harmless error standard. See People v.

Schnorenberg, 2025 CO 43, ¶ 51. Under that standard, an error

requires reversal unless the State proves “that the error did not

substantially influence the verdict or affect the fairness of the trial

proceedings.” James, ¶ 19.

¶ 40 The State contends that any error in failing to give the

supplemental instruction was harmless because the paramedics’

protocols sufficiently advised the jury of the scope of their lawful

duties, and, in any event, Ez-Zahir’s theory of defense was

adequately conveyed through defense counsel’s closing argument.

We disagree.

22 ¶ 41 The protocols were not an adequate substitute for a jury

instruction defining the scope of the paramedics’ lawful duties. For

one thing, although the protocols direct the paramedics to transport

nonconsenting patients to the hospital under certain

circumstances, they do not address the paramedics’ allowable use

of force to do so. More problematically, the protocols are not

binding on the paramedics. The driving paramedic testified that

“protocols are guidelines. They’re gray areas.” The attending

paramedic confirmed that the protocols are “guideline[s]” from

which paramedics are “allowed to deviate if it is in the safety of the

patient or in the patient’s best interest,” a decision left to the

judgment of the paramedics. Under section 18-1-703(1)(e)(II), a

medical provider may use reasonable force to administer treatment

only when there is “an emergency.” And while the consent protocol

includes a similar standard (a patient who lacks decision-making

capacity should be transported to the hospital if his “life or health is

in danger”), that protocol cannot define the scope of the paramedics’

lawful authority to use force because it says nothing about the use

of force, is not binding on the paramedics, and is not the law.

Indeed, the attending paramedic testified that the paramedics

23 could, consistent with the protocols, administer treatment to Ez-

Zahir without his consent even if his only discernible injury was

scraped knuckles.

¶ 42 As for defense counsel’s opportunity to argue about the

lawfulness of the paramedics’ conduct, it is well established that

“arguments of counsel cannot substitute for instructions by the

court.” Taylor v. Kentucky, 436 U.S. 478, 488-89 (1978). “It is the

duty of the trial court — not counsel — to ‘correctly instruct the

jury on all matters of law for which there is sufficient evidence to

support giving instructions.’” Jones, ¶ 64 (quoting People v.

Jacobson, 2017 COA 92, ¶ 10).

¶ 43 In our view, there is a “reasonable probability that the error

contributed to the verdict.” People v. Wise, 2014 COA 83, ¶ 27

(quoting Krutsinger v. People, 219 P.3d 1054, 1063 (Colo. 2009)).

We cannot say that the evidence established, as a matter of law,

that the paramedics were lawfully authorized to use force under

section 18-1-703(1)(e). Rather, a reasonable jury could have found

that Ez-Zahir’s physical condition — even considering his

intoxication, recent fall, and scraped knuckles — did not rise to the

level of “an emergency” allowing the paramedics to forcibly

24 transport him for the purpose of administering medical treatment

without his consent. And if the jury made that finding, then Ez-

Zahir was justified in using reasonable force against them so long

as he had a reasonable belief that the paramedics were about to

forcibly transport him. A reasonable jury could have made that

finding too.

¶ 44 In sum, like the division in People v. Lutz, “[w]e cannot say, as

a matter of law, either that [Ez-Zahir] entertained a reasonable

belief” that the paramedics were about to use unlawful force against

him, “or that [his] actions . . . were reasonable” under the

circumstances. 762 P.2d 715, 717 (Colo. App. 1988). “We say only

that [Ez-Zahir] was entitled to a jury determination of those issues

under an appropriate instruction.” Id.

III. Disposition

¶ 45 The judgment of conviction is reversed, and the case is

remanded for a new trial.

JUDGE SCHUTZ concurs.

JUDGE FOX dissents.

25 JUDGE FOX, dissenting.

¶ 46 The majority offers a well-written and appealing decision, but I

cannot join it. Respectfully, in my view, the district court was not

required to provide a definition that did not apply to the situation.

And because the jury was properly instructed and counsel were

allowed to present evidence and make arguments relevant to the

elements of attempted second degree assault, reversal is not

warranted. In my view, there is no reasonable probability that the

failure to provide the requested instruction contributed to the jury’s

verdict. See People v. Wise, 2014 COA 83, ¶ 27.

I. The Requested Instruction

¶ 47 A district court has a duty to instruct the jury on the law that

applies to a case, Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011),

and the court did just that here. As relevant to this appeal, it

instructed the jury on the elements of second degree assault and

attempted second degree assault (as to the emergency medical care

provider). And, given Ez-Zahir’s intoxication, the court instructed

the jury that (1) it could “consider whether or not the evidence of

intoxication negated the existence of the elements of ‘with intent’ or

‘intentionally’”; (2) the prosecution had the burden to prove all the

26 elements of the charged crime(s) beyond a reasonable doubt; and

(3) if the jury found that Ez-Zahir was “intoxicated to such a degree

that he did not act with the required mental state,” it should find

him not guilty. The court also instructed the jury on the affirmative

defense of “defense of person” as a defense to second degree assault

and attempted second degree assault.

¶ 48 True, the court did not provide an instruction outlining the

scope of the emergency personnel’s lawful authority to take Ez-

Zahir to the hospital.1 But, as I explain here, the court was not

required to so instruct the jury.

¶ 49 As I read the record, it is apparent that the emergency

personnel were present to assess the situation and to take Ez-Zahir

to the hospital for treatment. They assessed him but did not

provide medical care onsite. Section 18-1-703(1)(e)(I) and (II),

C.R.S. 2025, which the defense proposed as an instruction, allows

enumerated healthcare workers to use “reasonable and appropriate

physical force” to administer “a recognized form of treatment”

believed to promote the patient’s physical or mental health (1) if the

1 The court provided other definitions that are not disputed on

appeal.

27 patient (or his parent or guardian) consent or (2) if the treatment is

administered in an emergency when the service provider reasonably

believes “no one competent to consent can be consulted and that a

reasonable person, wishing to safeguard the welfare of the patient,

would consent.” While section 18-1-703(1)(e) may apply to what the

medical providers did once Ez-Zahir arrived at a hospital or

treatment facility, I disagree that it applied to the emergency

personnel’s actions of attempting to transport Ez-Zahir in an

ambulance.

¶ 50 And, if the district court provided the defense-requested

instruction, the prosecution could have reasonably proposed that

the jury also be instructed, consistent with a different statute, that

if Ez-Zahir was incapacitated by a substance (including alcohol) and

posed a danger to himself or others (by stumbling in traffic on a

busy Colfax Avenue), the emergency service providers were

obligated to take him “into protective custody in an approved

treatment facility.” § 27-81-111(1)(a), C.R.S. 2025 (emergency

service providers and police officers “shall take the person into

protective custody in an approved treatment facility” (emphasis

added)); People v. Dist. Ct., 713 P.2d 918, 922 n.7 (Colo. 1986)

28 (explaining that “shall” is most commonly mandatory); COLJI-Crim.

H:10 (2025) (entitled “Use of Force, Special Relationships”).

¶ 51 The jury was appropriately instructed on attempted second

degree assault and self-defense, and both parties were then allowed

to present relevant evidence and appropriate arguments on whether

the operative facts satisfied the statute. Nothing more was required

of the district court. See People v. Montoya, 104 P.3d 303, 307

(Colo. App. 2004) (failure to define “lawful duty” was not plain error

when no evidence suggested the victim was not authorized to act as

a firefighter or paramedic).

¶ 52 It is true that the legislature did not define “lawful duty” in the

second degree assault statute,2 but it did define the protected

professionals — peace officers, firefighters, and emergency medical

personnel, § 18-3-201(1.3), (1.5), C.R.S. 2025 — by reference to

2 The statute has existed in its current form since its repeal and

reenactment in 1971. See Ch. 121, sec. 1, § 40-3-203, 1971 Colo. Sess. Laws 420. The comment to section 40-3-201, C.R.S. 1971, indicates that sections 40-3-201 to -204, C.R.S. 1971, were adopted from Michigan’s law and that the types of assaults were expanded “to make special provision for the protection of firemen and policemen engaged in the performance of their duties.” § 43-3-201, C.R.S. 1971 cmt.; see also People v. Banks, 9 P.3d 1125, 1128 (Colo. 2000) (discussing the 1988 amendments, which increased penalties for crimes against peace officers and firefighters).

29 their work, meaning when they are “engaged or acting in, or . . .

[are] present for the purpose of engaging or acting in, the

performance of any duty, service, or function imposed, authorized,

required, or permitted by law to be performed” by the professionals,

§ 18-3-201(2). I read this to mean that the legislature wanted the

term “lawful duty” to be broadly interpreted. And emergency

personnel act lawfully when they take an incapacitated person like

Ez-Zahir “into protective custody in an approved treatment

facility.”3 § 27-81-111(1)(a).

¶ 53 It was for the jury to decide whether the paramedics acted

consistently with their duties and thus lawfully. Whether

emergency personnel act consistent with — or exceed — the scope

of their duties varies; for that very reason, they are trained on

different responses to shifting on-the-ground situations. They need

leeway to assess and address those emergencies quickly and

without fear of implementing the necessary response.

3 Of course, the prosecutor could have taken that incapacitation

into account in deciding whether to charge Ez-Zahir in the first place.

30 II. Any Claimed Error Did Not Drive the Jury Verdict

¶ 54 I am also unpersuaded that the jury would have arrived at a

different verdict, see Wise, ¶ 27, if the court gave an instruction

mirroring section 18-1-703(1)(e), especially if the jury was also

instructed consistent with section 27-81-111.

¶ 55 Because the majority is remanding for a new trial where the

requested instruction is given, I take no position on El-Zahir’s

remaining arguments, which may not arise on retrial or may arise

under different circumstances. See People v. Becker, 2014 COA 36,

¶ 29 (addressing issues that may not arise again would “result in an

advisory opinion, which risks improperly depriving the parties of

their prerogative to litigate the case as they choose”).

¶ 56 With respect, I dissent and would affirm the judgment.