The Denver District Attorney's Office is still sorting out its response toa fatal shooting on South Glencoe Street
last week. It may well be that the death of 29-year-old Charles McLaughlin, who allegedly fought with the male occupant of a home and attempted entry before he was shot, is justified under established laws of self-defense. But it also seems clear that the reported circumstances are outside the scope of Colorado's "Make My Day" law -- which makes things a little more complicated for the home defender than they would be otherwise.
Denver police received a 911 call on Sunday evening, July 7, from a woman reporting that McLaughlin had tried to break into her house and that her boyfriend had shot him. The boyfriend had gone out on the porch to confront the intruder, whom neither of the couple knew, and McLaughlin had continued to behave aggressively, at one point charging the boyfriend.
Colorado's 1985 home protection statute, better known as the Make My Day law, allows the occupant of a dwelling to use deadly force against an intruder, provided that the resident has a reasonable belief that the intruder "is committing or intends to commit a crime against a person or property" and "might use physical force, no matter how slight." The law protects homeowners from criminal prosecution or civil liability for such actions -- but only if the intruder has already made unlawful entry and is inside the home at the time.
That distinction was sharply drawn in one of the first test cases of the law after its passage, stemming from a bloody neighborhood brawl in Northglenn in 1986. A man named David Guenther had been involved in a series of disputes with other residents of the block for months. Then some participants in a drinking party down the street decided to let the air out of Guenther's tires. One of them ended up banging on Guenther's door and getting into a tussle with Guenther's wife, Pam, who called out to her husband for help. Guenther emerged from the house with a .357 handgun and shot three unarmed people in his yard, killing one woman.
At first an Adams County judge threw out the charges against Guenther, saying the new Make My Day law made it impossible to prosecute him. The case went to the Colorado Supreme Court, which decided the district judge had misinterpreted the law; since the shootings took place outside, Make My Day didn't apply. Guenther was eventually charged with second-degree murder in the death of Josslyn Volosin but was acquitted at trial by a jury that decided he acted in self-defense, believing that he was in "imminent danger of being killed or receiving great bodily injury."
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But Guenther wasn't exactly in a position to savor his victory. Ten months after the Volosin shooting, he gunned down Pam, who'd obtained a restraining order against her abusive husband and had been living in a safehouse. Guenther is now serving forty years to life for that homicide; he's not eligible for parole until 2029.
As in the Volosin case, the man who shot McLaughlin will have to establish that he had a legitimate concern about avoiding death or great bodily injury and acted accordingly. Given the scenario that's been presented -- people defending their home from a violent stranger, even if he didn't manage to physically cross the threshold -- it may be easier to demonstrate an actual life-or-death threat than in the muddled neighborhood dispute behind the Volosin shooting.
A Denver Post account of the case claims that this is the first "documented" case of a Denver resident using a gun to repel a home invader in more than a year and suggests that such instances are as rare as pennants for the Rockies. But experts who've studied the issue extensively, including Florida criminologist Gary Kleck, say defensive gun use is not as easily documented as cases of gun homicides and suicides, and is probably grossly underreported.
Depending on how you define it (brandishing? warning shots?), defensive gun use may actually be as common as gun crimes -- or even more so. But it only make the news when it turns deadly, as it did on South Glencoe nine days ago. From our archives: "Florida's 'Stand Your Ground' vs. Colorado's 'Make My Day: a primer in self-defense law."