Attorneys and self-defense instructors told the Daily Caller News Foundation that firing a warning shot is almost a surefire way to face legal trouble, assuming one survives the incident.
In two recent incidents, armed citizens fired warning shots, with one armed citizen in Benton County, Washington, ending up being jailed on suspicion of murder for a few days while the police investigated until the prosecutor admitted the shooting was actually self-defense. In the second incident in Franklin County, Missouri, police filed no charges against the armed citizen, but experts warn that those who advise firing warning shots are missing the mark.
“Warning shots are generally forbidden for police and strongly recommended against for private citizens. There are often more earwitnesses than eyewitnesses, and they may interpret ‘Stop or I’ll shoot’ followed by a BANG as ‘He threatened to shoot someone, then carried out the threat,’” Second Amendment Foundation President Massad Ayoob, an expert witness and instructor in the use of force, told the DCNF. “The suspect in question may claim that the warning shot was a murder attempt and the shooter simply missed.”
“Also, the bullet has to go somewhere,” Ayoob continued. “In one case, an officer in a city fired a warning shot upward to halt a felon running away from him, and the bullet struck and killed an innocent citizen on the top floor porch of a tenement building. To put the bullet somewhere safe, the shooter has to take his eyes off a potentially dangerous suspect. There are many downsides to firing warning shots.”
United States Concealed Carry Association (USCCA) principal training advisor Rob Chadwick agreed, warning that the use of warning shots could lead to trouble in court.
“Firing a warning shot means discharging a deadly weapon without stopping the threat. Instructors teach that every round needs an identified target and a safe backstop,” Chadwick told the DCNF. “Laws on warning shots and self-defense vary by state, but in any jurisdiction a warning shot invites prosecutors to argue the shooter never faced the level of danger that justifies deadly force.
Marc Victor, owner of Attorneys For Freedom Law Firm, said after trying “thousands” of cases, he viewed warning shots as “high risk” in the legal aftermath of a self-defense incident.
“Prosecutors like to use them really in a couple of different ways. First, if you’re firing a warning shot, lots of prosecutors will make the argument that because you had the ability to fire a warning shot, the whole situation was not imminent,” Victor told the DCNF. “Because, as imminency is a very important piece of building a self-defense case, and so the prosecutor very commonly in these types of cases will say, because you had time to fire a warning shot, you were not at an imminent. threat of death or serious physical injury. The reason I say it that way is because when you fire a warning shot, you’re now in the category of deadly physical force.”
“You’re going to have to make the case that you are at an imminent risk of death or a very serious physical injury and so they will use the warning shot as their evidence that the imminency card was missing. So that’s number one,” Victor continued. “The second thing that we see commonly on warning shots is prosecutor will argue this was an escalation. You weren’t trying to use the least amount of force, what escalated the situation. So now you’re the aggressor, you’re not responding to the aggression.”
Even in a situation where nobody was struck by the bullet, Victor noted that prosecutors could still charge a gun owner who fired a warning shot in a self-defense situation.
“You are going to be responsible for where that round lands, and [it’s] so very common people get charged with unlawful discharge [or] endangerment because the prosecutor is going to make the case that you recklessly endangered other people by firing a shot up into the air,” Victor told the DCNF. “That round is going to come back down. You could even get charged with an aggravated assault. So another reason to discourage warning shots is because innocent bystanders sometimes get hit. You’re definitely going to be charged with a crime in that circumstance.”
Tom Grieve, an attorney affiliated with the United States Concealed Carry Association, noted that the warning shots could actually hand an edge to a criminal who assaulted an armed citizen.
“I want you to think of a defensive gun use as two deadly events unfolding at once: the kinetic encounter with your attacker and then the legal encounter that follows. Both the man in the mask demanding your property or your life and the justice system can ruin and take everything you have. That makes them both deadly force encounters,” Grieve told the DCNF. “Warning shots end attacks in the street but begin attacks against your future in court. Every case my firm has seen where someone contacted our office after using warning shots faced criminal charges after the bad guys fled. The reasoning? It’s a circular logic.”
“You are privileged to use deadly force, such as discharging a firearm, only if you are facing a deadly threat. The specifics vary from place and time, but that’s the short version. A prosecutor will ask: Was it really an imminent deadly threat if you could risk a warning shot instead of directly shooting the attacker?” Grieve continued. “If the warning shot fails to stop the attack, you may be dead. Alternatively, it was never a deadly threat to the point where deadly force was justified, meaning you jumped the shark, so enjoy these felony charges. Typical charges range from recklessly endangering safety, attempted homicide, to intentionally pointing a firearm.”
Grieve also warned that assailants would often try to claim they were the victim in the incident.
“By the way: every time the police interview the bad guys they 90% of the time claim that you attacked them. Remember, these assailants did not just wake up one day, decide to skip going to their W2 job and figure they will wing it [and] try some violent street felonies,” Grieve warned. “It’s usually a long road to committing violent street felonies. They and their best friends have been arrested and in and out of the system for already many years. These bad guys know the system and they know how to play the cops. It does not always work out for them, but it does a frightening amount of the time because the good guys (that’s you, the victim) do not understand the system and what you are up against.”
Under current federal law, those convicted of an offense that can lead to more than one year in prison or those under indictment for such an offense are prohibited from possessing firearms.
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All content created by the Daily Caller News Foundation, an independent and nonpartisan newswire service, is available without charge to any legitimate news publisher that can provide a large audience. All republished articles must include our logo, our reporter’s byline and their DCNF affiliation. For any questions about our guidelines or partnering with us, please contact licensing@dailycallernewsfoundation.org.
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