A Warning About Warning Shots

The use of deadly force paradox

A warning shot is a round fired with the intent of signaling to a would-be attacker that the defender is armed and willing to use deadly force to protect life and limb. On the surface, a warning shot may seem like a logical, less-than-lethal way of warding off an attacker or intruder, but in practical terms, warning shots are fraught with peril, both from a tactical and a legal perspective.

Tactically, the intent of a warning shot is to communicate a willingness to use deadly force, but from a practical point of view, it could have the exact opposite effect. Steve Moses is a veteran of law enforcement, a firearms instructor, and a CCW Safe Contributor. Steve says that there is a certain criminal element that has “seen a lot of violence in their lives.” Steve suggests that a person with a lot of “street experience” may interpret a warning shot as meaning “this person is not willing to follow through.” To a hardened criminal, a warning shot could be perceived as a reluctance by the defender to use actual deadly force. If a warning shot is perceived as weakness, it might only serve to embolden a potential attacker.

Legally, and this may be a surprise to many, a warning shot IS actually considered the use of lethal force. Many jurisdictions consider the display of a firearm as the “threat of deadly force,” but once a bullet is fired in a self-defense context — even if the defender intentionally misses — that discharge of a firearm is considered the use of deadly force. Gary Eastridge is in charge of CCW Safe’s Critical Response Team, and he had a long career investigating homicides for Oklahoma City. Gary says, “the problem with a warning shot is you’re still employing lethal force, and you’re creating a greater risk to possible innocent parties than anything you may gain as a defensive measure.”

Don West, criminal defense attorney and National Trial Counsel for CCW Safe agrees with Gary Eastridge. “If you fire a gun, as Gary pointed out, you have then employed deadly force. It’s a matter of law.” Don says that there is a light year of difference between the potential legal consequences of an unjustified defensive display and unwarranted use of deadly force. A defensive display could be charged criminally as a misdemeanor while an unjustified warning shot could bring charges of felony aggravated assault or even attempted murder.

Not long ago, we explored the case of Marissa Alexander. She was the mother of a newborn who returned to her marital home to retrieve some personal items only to be confronted by her estranged husband Rico Gray. According to Alexander, Gray attacked her in the bathroom. He attempted to choke her before she broke free and escaped to the garage. There she pulled a pistol from the glove compartment of her vehicle, reentered the house, and confronted Gray in the kitchen. She fired a single shot that struck the wall several inches from Gray’s head — a “warning shot,” she called it. Prosecutors weren’t so sure, and for a time, they asserted that the so-called “warning shot” was just actually just a miss. Bad aim. In a podcast with CCW Safe founders Make Darter and Stan Campbell, Alexander insisted she could have easily struck Gray if she had wanted to, reinforcing her claim that the discharge was intended as a warning shot. Nonetheless, to a prosecutor, there is a fine line between a warning shot and attempted murder. As a concealed carrier or armed defender, you don’t want to walk that line.

Don West says that firing a warning shot can also weaken other aspects of a legal self-defense claim. Don West says “If the defender had time to fire a warning shot, there can be a credible claim made then that the threat itself wasn’t that imminent.”  As Gary Eastridge puts it: “If the grounds for using deadly force are that the threat is imminent and necessary, then why are you firing a warning shot?” In a way, firing a warning shot is a paradox. If the threat is severe enough and imminent enough to justify the use of deadly force, then a defender wouldn’t have the opportunity to safely fire a warning shot. That means if a defender did have the opportunity to fire a warning shot, then the threat of bodily injury or death wasn’t imminent enough to justify the use of deadly force. It’s a no-win scenario.

It may seem counterintuitive, but the lesson for concealed carriers and armed defenders is that, from a tactical and legal perspective, firing a warning shot is almost always a losing proposition. Legally, a warning shot is considered the use of deadly force, and it carries extreme legal consequences when unjustified. A strategic defensive display, in most jurisdictions, is merely the threat of deadly force, and the defender’s legal risk is much lower (although still serious). An armed defender should only use a firearm when the use of deadly force is justified. Sometimes the display of a firearm is enough to cause an attacker to break contact — and that is a better result than actually deploying deadly force. Firing a warning shot, however, might only serve to embolden a hardened criminal, and it carries almost all the legal risk of using deadly force without the benefit of actually eliminating the imminent threat.

   

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