COLORADO SPRINGS, Colo. (AP) — A Colorado judge has dismissed a second-degree murder charge in the case of a Colorado Springs man charged with shooting an intruder he found in the basement of his apartment building.

The Gazette of Colorado Springs reports District Judge Jann DuBois ruled Friday 29-year-old Patrick Rau was protected under Colorado's Homeowner Protection Act because he reasonably feared the intruder and the basement was part of the dwelling.

The so-called "make my day" law allows a person to use deadly force against an intruder who is reasonably believed to be a threat.

Donald Wayne Russell was shot in January 2017. Rau was indicted two months later and pleaded not guilty.

Lee Richards, a spokesman for the District Attorney's office, says prosecutors plan to appeal the dismissal.

The Gazette could not reach Rau for comment.

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Information from: The Gazette, http://www.gazette.com