‘Make My Day’ Law Stirs Furor After Shooting

She was 25, the mother of a baby boy, and in the dark of a spring night, she lay dead in the middle of the street--Pearl Court--with a .357 magnum bullet in her chest. Near her, her husband was sprawled, wounded. In their house nearby, a friend was bleeding. All had been hit in a hail of gunfire that had finally and fatally terminated a neighborhood ruckus.

Now, in a bizarre twist, the neighbor who shot the three of them has been released, and second-degree murder and assault charges against him have been dismissed--all because of a recently enacted “Make My Day” law intended to shield from prosecution people who use force to defend their homes against intruders.

Colorado, California and a growing number of other states have adopted such laws in recent years, but this case is causing some officials and citizens to reconsider the wisdom of such legislation.

“It is a license for homeowners to kill without the possibility of being held accountable,” said District Judge Philip Roan, who dismissed the charges in what has become Colorado’s first application of the law. “It’s the law, and I have to enforce it,” he said.

“The court finds the statute in question is the most ill-considered statute this court has seen. . . . I think it’s ridiculous.”

The “Make My Day” law approved in Colorado last year provides that “any occupant of a dwelling . . . shall be immune from criminal prosecution” if he injures or kills someone who has “made an unlawful entry into the dwelling,” and the occupant reasonably believes that a crime is about to be, has been or is being committed, and when the occupant reasonably believes that “such other person might use any physical force, no matter how slight, against any occupant.”

The law also provides explicit immunity from civil liability for any injuries or deaths that occur in such a situation.

Although they have been called “Your Home Is Your Castle” laws elsewhere, the Colorado version quickly was dubbed the “Make My Day” law, alluding to a scene in a Clint Eastwood movie in which the protagonist, played by Eastwood, relishes being given a reason to shoot a criminal. One state legislator who supported the bill even brought to the Capitol an Eastwood poster bearing the “Go ahead, make my day” message.

‘Bag Limit’ on Intruders

Another legislator argued: “Sometimes blowing dirt balls away is the reasonable thing to do.” Another said: “We’re sending a message that if you (illegally) enter a home, you stand a good chance of getting your head blown off.” Taking his cue from state hunting laws, still another legislator facetiously proposed an annual “bag limit” of 10 intruders.

Before the measure was passed, prosecutors generally exercised their discretion about the reasonableness of a householder’s use of deadly force, by referring to guidelines in state law. If charges were filed against the occupant, he could present a self-defense argument at trial.

Opponents of the bill said that no householder genuinely threatened by an intruder had ever been prosecuted for killing one, and predicted that otherwise criminal behavior might go unprosecuted if the “Make My Day” bill became law. After the initial legislation was weakened, opponents eventually supported the law in its current form. Since then, their original apprehensions have been realized.

‘Didn’t Do a Good Job’

“Our fears were correct,” laments Greg Long, the district attorney for Moffat, Routt and Grand counties, who led the Colorado District Attorneys Council’s effort to weaken the immunity guaranteed by the law. “In retrospect, we didn’t do a good enough job.”

“I don’t know all the facts, but I’m certainly willing to talk (about changes) with people” if there is a problem, said Rep. Vickie Armstrong, the Grand Junction Republican who sponsored the legislation. She speculated that Roan’s ruling was an attempt to force a test case over a law that the judge dislikes.

“This is not specifically the kind of case the Legislature had in mind,” added a lawyer, who asked not to be named, who is familiar with the case involving the shooting death of the 25-year-old woman. “But the law does apply.”

That case--one of those knotted American legal dramas in which justice is many things to many people--involves a small group of suburban Denver residents.

Prosecution to Appeal

The prosecution is appealing Roan’s dismissal of the charges. The original defendant, David Guenther, a 32-year-old construction worker, may yet go before a jury, so the ultimate outcome remains unknown.

Although accounts vary on details, they generally paint this picture of the events that led up to Josslyn Volosin’s death last April 20:

Late on Saturday, April 19, a small party was under way at the home of Josslyn and Michael Volosin, across Pearl Court from the Guenthers. The Guenthers were awakened at about 11:30 p.m. by someone from the party who had been drinking, banging on an oil drip-pan and shouting obscene challenges to Guenther. Pamela Guenther went outside and told the man, a neighbor, to leave; he did.

But he returned, and Pamela Guenther called the Northglenn police, who, upon arrival, found Pamela Guenther waiting for them in the street. The man was nowhere to be seen. After looking for the noisemaker at his own house, police visited the Volosin home, where they were assured that the man was being quieted and would not be allowed to cause further disturbance. The police left.

Loud Banging at Door

As Pamela Guenther returned to her bedroom, a loud banging erupted at the Guenthers’ front door. She went to the door and, according to her statement to police, Michael Volosin reached inside, pulled her from the house and slammed her against the brick wall of the Guenther home. She began screaming for help and shouting, “David, get the gun!”

By the time Guenther got his gun from a storage case in the bedroom and ran to the front door, a jumble of people, including his wife, were on the ground by the front porch. Guenther opened fire, hitting Josslyn Volosin and also wounding her husband, Michael, and a friend, Robbie Wardwell, 27. When the police returned they found Mrs. Volosin dead in the street.

Deputy State Public Defender Robert Pepin, who represents Guenther, said: “Here we had a dwelling, an unlawful intrusion that resulted in a criminal act, and the response fell within the law. The judge held that the facts fell within the statute. I don’t think he ‘got off’ just because of this law, but the umbrella (of protection from prosecution) was broadened . . . and removed the doubt about what a jury might do.

“I don’t know what a jury would have done.”

Opposed Dropping Charges

“We don’t feel the facts warranted (Roan’s ruling),” said Jim Smith, the Adams County district attorney. “Two of the people shot had not been in the residence at all--including Mrs. Volosin--and I feel sure Mr. Guenther knew who the people were in his yard creating a fuss.”

In opposing dismissal of charges, Smith also argued that a jury, not a judge, should decide if the “Make My Day” law applied in the case. “Our position on the legislation,” he went on, “was that it wasn’t necessary, that when people act with deadly force in their residence, we don’t prosecute those cases, and it (the ‘Make My Day’ law) could lead to some rash behavior.”

“This demonstrates the concern we had,” said Ray Slaughter, executive director of the Colorado District Attorneys Council. “We tried to defuse it to the point where this wouldn’t happen. We certainly were extremely concerned that potential defendants would not be prosecuted.

“If this stands on appeal, we’ve got to remedy it.”

Worked to Soften Law

Although the Guenther case represents the first full application of the law, Long, the district attorney who worked to soften the legislation last year, said that he successfully prosecuted a second-degree murder case in which the judge indicated that he might have dismissed the charges under the “Make My Day” law--except that it was passed two weeks after the killing.

That killing involved a public dispute over a girl. Afterward, her new boyfriend followed her old boyfriend home, Long said, “to tell the old boyfriend to ‘stay the hell away from my girl,’ and he took five bullets in the face.”

Said Long: “If the killing had happened two weeks later, the judge indicated he might have ruled against us--and a jury subsequently convicted him of second-degree murder. All the Legislature could see (when it passed the new law) was a burglar with fangs and the little old lady shoots him and we prosecute her. But it just doesn’t happen that way.”

Law Had ‘Lot of Support’

Armstrong, the chief sponsor of the law, said that under the old standard, if force was used against an intruder, a householder had to show that lesser force would have been insufficient. “But you can’t outguess (intruders) on what they’re going to do,” she said, “and people had the perception they couldn’t use deadly force in their homes.” Her legislation, she added, “had a lot of public support. It was one of those bills where people were organized at the grass roots.”

But at the grass roots of Pearl Court, Roan’s ruling has been met with shock. “My first reaction is, somebody should have to pay for taking another human being’s life,” said Ken Kahler, who lives next door to the Volosins.

“I couldn’t believe it,” added James Woods, another neighbor visiting with Kahler on Kahler’s driveway. “I can’t believe the law. That law gives people more immunity than the military walking guard duty.”

Kahler: “I’ve seen Dave (Guenther) talking to Mike (Volosin).”

Woods: “They sure weren’t strangers.”

Pepin, the public defender, said of the law’s impact: “I don’t think there’s any question there are gray areas because of the “Make My Day” statute. But whether it made it better for David Guenther? It would be debatable, anyway. I’m sorry so many conclusions have been drawn.”