CCW Safe Podcast- Episode 73: Warning Shots

Video version of the podcast:

Transcript:

Rob: Hi. Welcome to the CCW Safe Podcast. I’m Rob High joined today by Philip Naman and our CCW Safe National Trial Counsel, Don West. Welcome gentlemen. Thank you for being here.

Don: Thanks, Rob.

Phillip: How you doing, Rob?

Rob: Fantastic. This is something that we’ve covered on a number of different medias, but we still have a lot of questions and concerns and things asked by members concerning warning shots. “Should I fire a warning shot? Should I not fire a warning shot?” I think we’ve all covered this the same way and the question’s still there. One of the things I like to bring up right off the bat is almost every law enforcement agency around has a policy against warning shots for a reason. If it’s a serious enough issue to discharge a firearm, it’s a serious enough issue to use the firearm to stop the threat. Threat should be that severe. One, what are your thoughts?

Don: Well I think there are considerations on warning shots. We can compartmentalize them if you want. One is the legal ramifications of firing a warning shot. What’s that likely to bring in terms of law enforcement investigation and ultimate prosecution. The other side of it’s probably the tactical side, and you’re the expert there. What might happen in terms of this threat that you are facing, if you decide to fire a warning shot? What’s it going to bring? Is it going to actually make the situation better or worse? One assumes that police departments have that rule for a good reason.

Rob: Well, absolutely. The very first thing that comes to mind, anytime we talk about bringing a gun into play, especially discharging a firearm is your accountability for every single round that’s fired. It may not be pointed at the guy, but have you done ballistic tests to see what a round’s going to do when it shot into certain materials? Even into the ground, I fire a round into the ground and it hits a rock and it comes up and it causes an injury or something like that. There’s all kinds of things, hypotheticals that can come up that’s just going to cause an issue for the gun owner.

Beyond that, the simple fact that you have brought a gun into the scenario doesn’t necessarily mean that you’re going to cause the other person to stop. I know there’s been several times as a law enforcement officer that just merely bringing a gun out, you’ve got to convince somebody that you’re willing to use it at its full force effect. Not everybody believes that until you step up to that next level. I’ve been in situations on multiple occasions where legally I could have discharged a firearm, could have shot somebody, but I had other means available, other things, tools in the toolbox that we could go around that and really not have to worry about taking a life. I’m very thankful that I never had to do that.

Don: Well, certainly, if you fire a gun in the air, the bullet’s going to come down somewhere. It’s going to hit something, property or people, and there’s going to be a consequence of that act in and of itself. Even though you may think you’re doing something safer at that moment, by pointing the gun in the air, there are clear physical and human consequences to that. Then you can certainly do little research and find the number of people– remarkable, the number of people out there that are hit by stray bullets, ones that were fired in the air, or just fired 4th of July or New Year’s Eve, that kind of stuff. It’s inherently dangerous first of all.

Secondly, what I was interested in having your insight into, Rob, especially is, what response might you provoke in the person that you’re attempting to scare off with a warning shot? It seems to me, from a tactical standpoint– and this is what I hear in my practice, because I have represented people that fired a warning shot, and the whole notion was, “Well I was trying to, air quotes here, “run them off” There’s somebody on their property or someone they felt threatened by. Sometimes it wasn’t even a very clear articulable threat, but there were people that were bothering them and they wanted to, in a sense, run them off.

Well, that might work, or you might get the opposite reaction from whoever that is. They could simply, mistakenly or otherwise, decide that they’re now being shot at, and their response is to fire back. I’ve been involved precisely in a case of essentially mistaken identity, where people started shooting at each other, and before the dust settled, oh, shoot, it was over 40 rounds that were fired. It was really crazy, and the whole thing started with a warning shot designed to run these guys off.

Rob: Well, and as a responding officer, as a patrol officer coming up, and you’re the guy that is standing over somebody in that exact scenario. You tell me that this guy produced a firearm, he shot at you, you pulled your firearm in self-defense and shot him, and now he’s down on the ground either in need of help or dead. The simple fact that they produced this firearm and discharged it has not only validated their threat of lethal force, but they also have proved that they absolutely have the means to carry out that threat. Even at a minimum with a miss, you can still be arrested and charged, and convicted of the assault. Any time you pull a gun out and you discharge it, it is a use of lethal force. It just is.

Don: Yes. That’s a good thing to draw some circles around is, what are you doing legally when you fire a gun? I look at this as a progression of sorts. There are light-years in the legal system between displaying a firearm, even pointing a firearm, from discharging a firearm, because as you pointed out, once you transition to the discharge of the firearm, it’s no longer the threat of deadly force or a defensive display that may very well be legal in certain jurisdictions against a non-lethal-threat, but you have now employed lethal force.

In virtually every place, you can’t use lethal force unless you are facing a deadly force threat. At a minimum, unless you can clearly articulate that you were facing a deadly force threat before you pulled the trigger, you have automatically used disproportional force, even if your intent was just to fire in the air or to run them off.

Phillip: Yes.

Don: There’s a very famous warning shot case in Florida from a few years ago, a woman named Marisa Alexander that I’m sure many of our viewers will have heard about. It was a woman in a argument confrontation with an ex who was the father of some children that brought them together. It started with looking at a cell phone and seeing text messages that didn’t want to be seen or shared, but it then escalated to a standoff and an argument. Her claim of fear from this guy, probably justifiable fear, he certainly was more physical and imposing and may very well have posed some physical threat. But her response to that, was instead of going out the front door into the yard, she went out the side door into the garage, got the gun in her car, went back in the house, and reengaged, and before it was all done fired a shot.

From the very beginning, she said it was a warning shot. It missed, maybe it was a missed attempt, or maybe it certainly was a warning shot, but the fact of the matter was she discharged that firearm, and she got prosecuted. Under Florida law at that point, that act fell under the 10-20 life provision. Possess a firearm in the commission of a felony, its 10-year mandatory minimum, discharge the firearm it’s a 20-year mandatory minimum. What that meant is the judge had absolutely no discretion but to impose a 20-year sentence.

Didn’t matter if it was his son or cousin or next-door neighbor. There was no choice if you get convicted under that statute, you’re looking at 20 years and that’s actually was 20 years, the vernacular is day for day. No gain time, no good time. It’s 20 years on the calendar.

She turned down a plea offer and then she went to trial. She lost her self-defense immunity hearing, went to trial, and got convicted. At that point, the judge had no choice but to give her that 20-year sentence for a warning shot. She was in prison a couple of years until finally the case was reversed on appeal, not because the appellate court thought she wasn’t guilty of the crime that she was convicted of, but because there was a defect in the jury instructions that her jury received.

She got a new trial and went back to the drawing board and eventually worked it out and she wound up continuing serving a little bit more prison and got out, and now, is living a life. What a nightmare, what a horrendous story that started with the warning shot? It’s fraught with risk, liability, and under the best situations, it seems to me that it’s both unsafe and likely illegal. It’s treacherous ground.

Phillip: I think you guys made a lot of great points on that. Don, the first thing you said, “Is this going to make it better or worse?” You’re introducing the gun, you’re firing off a warning shot. Is it going to make it better or worse? The other thing is the responsibility for the bullet. We always talk about in my radio show, like for hunting situations, you send that bullet, you own it until it stops moving. You own all the actions of that bullet because you sent it on its way. It’s a stupid object. It does whatever you told it to do and you can’t pull it back. You are responsible for everything that does until it stops moving. That’s yours.

Another thing that we might want to bring up is that a warning shot in this day and age with the scarcity of ammunition, you’re just showing off. You’re just showing off that you have too much money that you can waste bullets like that. That’s never a good thing. I think that another thing that came up as I was listening to you guys, is how do you prove you had a warning shot and you weren’t really shooting at somebody?

Like we just saw in this Kenosha case, this Antifa guy says he just fired four warning shots in the general direction of Rittenhouse. He fired a warning shot. How do you prove that? Judging by the people who were there, he probably just missed him, but you really couldn’t prove that unless they find a bullet that impacted something. I think if you said you fired a warning shot, and the other guy says you were shooting at him, and depending on the terrain, if they can find something or not, that would be a hard thing to– You would lose some of your credibility in that.

Then I think we all just saw this last week. Another case of adults acting very poorly, where a man went to pick up his son and the wife was playing games, so she had him somewhere else. Did you guys see this video?

[crosstalk]

Don: I don’t think I saw that. No.

Phillip: Her new boyfriend comes– The dad, who’s there to pick up his son, mom says, “He’s not here.” He’s like, “He’s supposed to be here. I’m here to pick him up. You’re playing games with me.” He’s getting mad. He’s getting irritated. Probably rightly so. The new boyfriend goes in the house comes out with a nine-mill carbine, fires between the guy’s legs as a warning shot, at point-blank range. Literally, he’s two feet in front of him. He fires at his feet, and the guy wasn’t coming at him. Then they struggle for the gun and the guy who comes out of the house shoots and kills the dad.

Don: I did see some chatter on that. I saw a piece of that video. Talk about a preventable tragedy, huh? In every respect.

Phillip: Yes. Again, the guy comes at you– The guy who went in and got the gun, and it looks like to me, he escalated everything all the way up. He brought a firearm in where he didn’t need it, then he discharges it at the guy, which is going to make him act defensively. I’m sure we’ll be seeing more of that in the case. I just think that, as you pointed out, you can’t make a good case for a warning shot. You can make a lot of bad ones like, “This could happen, this could happen, this could happen.” In your scenario, “Are we making it better or worse,” when does a warning shot make it better?

Phillip: In my view anyway, and I’m looking at this both tactically, which I don’t have the background and training that you guys do, but I’m looking at it legally, and I understand that pretty well because I’ve represented people that were facing lengthy prison sentences for doing something they thought would make it better. You’re exactly right, Phil. It really depends, down the road, on who does the jury believe? Whose side does the prosecutor take?

A self-defense case is an all-or-nothing scenario. You either acted in self-defense or you didn’t because, by nature of raising a self-defense claim, you’ve admitted all the important facts. You’ve said you were the guy with the gun, you were the guy that fired the gun, and you have assumed responsibility for those consequences. However, you’re also claiming that you had the legal right to do what you did.

In my mind, as people think this through, they really shouldn’t think of any difference between a warning shot and a shot to kill, because legally it’s about the same thing. A warning shot really is no different legally than missing with a shot that you intended to hit someone.

The only scenarios I could think of where a warning shot could be a reasonable alternative are so rare and so few that I don’t want people to think there’s enough of them out there to exist. It’s like the unicorn. Maybe there is one, maybe there’s this scenario where someone’s approaching and you have a gun and you have the opportunity to give them one or two more seconds before you actually have to shoot them, and you have a safe way to discharge the gun. I don’t know what that scenario could be, where it would be safer than using voice commands, safer than trying to find cover, create distance, doing anything you can not to fire the gun at all, but only at that moment when you truly have that imminent threat of great bodily harm or death, do you decide to pull the trigger.

I don’t see a warning shot as a lesser form of force like a lot of people do. I think that’s the misunderstanding that if you have a gun, if you display a gun, that somehow then firing the gun is less force than pointing the gun at somebody and yelling at them. It’s not. Legally, it’s the same thing as pointing the gun out and missing.

Phillip: I think Rob said earlier that police departments don’t have warning shot scenarios. I don’t think there is one in the country. If you think about who actually trains for use of force day in, day out, or monthly, or however often they’re doing their trainings, it’d be the police departments. If they’ve come up with the case nationwide that all the chiefs of police, all the sheriffs, all the state leaders have all said, warning shots are a really bad idea, why would we even consider it?

I understand people get emotional. If I could be the defendant’s advocate here, probably they don’t want to shoot that person. They’re doing the warning shot because they really, really don’t want to have to hit that person. They’re hoping and praying that this loud noise is going to make somebody turn and go the other direction. I’m sure that’s what it is, is that they know they have to, but they don’t want to. I don’t know if maybe that’s something you’ve seen before, Don. Again, I’m being the defendant’s advocate here, but that’s the only reason I could see somebody doing one is just, they are so reluctant to have to take a life, even when they have to that they’d try that.

Don: I think that’s a fair assessment because I think that’s most likely what goes through people’s heads, as one of these things unfolds. Hopefully, no one wants to take someone’s life. Most, we hope, that are responsible gun owners that only take someone’s life if they truly can do so, have to do so to save their own or that of a loved one. There’s no step before that where you can fire a warning shot as an intermediary step that isn’t fraught with both legal risk and physical risk.

I think people don’t appreciate the seriousness legally of the warning shot, the likelihood of a real bad response from the person that they are threatening by using this warning shot. We haven’t even talked about when you fire a warning shot, you’ve just now told the other person exactly where you are. If there was some question, and they were really out to get you, you’ve now, by virtue of firing the gun, told them how to find you.

No, I can’t find a good scenario, but I can relate to it emotionally because you want to do anything short of killing somebody. There have to be other things that training and study and experience can help you better process so that, that never happens. Well, I think that’s the rule. It should never happen. You should never fire the warning shot.

Phillip: We all probably grew up with the movie Lethal Weapon, the first one, with Danny Glover and Mel Gibson. This segways into the next question is, okay, warning shot’s a bad idea. Well, in that movie, Danny Glover was a big proponent of, “Just shoot them in the leg.” Rob, how does that work out? We saw how it worked out in the movie, not a good idea. In real life, when someone has the idea of, “I don’t want to kill them. I’m going to do a warning shot. I don’t want to kill them. I’ll just shoot them in the leg.” It almost sounds like something– Anyway, Rob?

Rob: Go to your local gun range and watch everybody shoot. Just the ability to have that type of skill set– I shot competitively, I carried a gun professionally. Everything changes when that scenario becomes fluid and live. It’s one thing to stand here and work on basic shooting fundamentals and put holes in a piece of paper. When that paper starts shooting back, and it’s moving, all you want to do is make contact with it if you’re in that situation. It’s ridiculous to think of, “I’m just going to shoot him in the leg,” or “Why didn’t you shoot the gun out of his hand?” I don’t know those guys.

[crosstalk]

Phillip: Now you’re sounding like a politician. Just shoot him in the leg.

Rob: I don’t know the guys with that skillset.

Phillip: Shoot the gun out of the hand. Don’t hit his hand, just shoot just the metal part and make sure it deflects so it doesn’t damage anybody’s eyes or anything else.

Rob: I’ve actually seen sniper things done with things like that on [inaudible 00:22:01].

Phillip: Right, you’ve seen that with the guy is sitting still holding a gun down below a backdrop and he’s got his bipod down and his rest and it’s just another day at the range. Not when the guy’s running across a gas station at you waving his pistol.

Rob: Or shooting other people or whatever the case may be.

Phillip: It’s best for the movies.

Rob: Absolutely, if I didn’t have a gun, what would my actions be right then? What would I do? If it’s one of those, if I didn’t have a firearm to defend myself and I die because of that, well, that would be your shooting scenario. It’s just one of those things that you can’t hope to scare somebody out of causing you great bodily injury or death. I always felt like one of the easiest things to tell a new police officer or recruit going through training is, “When do you shoot?” “When there’s no other options, I don’t have anything left at my disposal. I don’t have any other things available to men and now I have to defend myself with lethal violence.”

It’s why even with basic gun safety things, you never point a gun at something you don’t intend to destroy. You never put your finger on the trigger until you’ve identified that thing, and it’s still that thing that you intend to destroy. Guns cause great destruction, they cause death, they cause serious horrible injuries. If we are at that point that there’s nothing else I can do and for me to go home safely at the end of this, I have to cause this kind of injury and use this type of force, that’s my only choice and that’s when you go. I wholeheartedly agree with Don. I just don’t ever see when firing the warning shot is something that is an option.

As all the new gun owners we have in the country now, all the brand new first-time firearms owners, it’s something you need to come to grips with mentally, you have to prepare for. If you don’t have what it takes to utilize that in a lethal deployment, you shouldn’t carry it. You just shouldn’t because you’re setting yourself up for failure and great injury or to get somebody else harmed.

Don: Let’s circle back just a little bit, Rob because that’s a good point is– Phil was talking about when in sequence, when in time, this warning shot idea. I touched on it by saying, it’s not an intermediate step between using no force and deadly force to stop or kill the person that’s confronting you. It is the use of deadly force. The only time that you could legally fire a warning shot– Making this simple, the only time you could legally fire a warning shot would be at the moment that you had the legal right to fire a deadly force intentional shot to stop somebody.

The only window in which you might fire a warning shot would be if it was in within that same window of when you didn’t have to, but you could choose to if all of the other circumstances were present, if you could fire a gun in the vicinity of someone safely at the moment that you could also have shot them instead, but somehow because of the unique circumstances of that situation, you had just enough time to let them think about it one more time. We’re talking seconds or less than seconds when all of that has to transpire.

Otherwise, the threat isn’t imminent and that’s how a lot of people get in trouble, is they fire this warning shot long before the threat has matured enough where they can actually use deadly force, not knowing that the warning shot itself is deadly force. Without the threat at all, it becomes at the minimum, some felonious assault or any number of things without a target, and not until the point that you have the deadly force threat that legally allows you to respond with the deadly force would you be justified in a warning shot situation. They’re just so rare that you can’t really factor it in frankly.

Do something else first. Whatever it is, do something else to get away or to neutralize the threat before you have to use deadly force. When you have to use deadly force, be sure that you’re ready, able, and capable of stopping that threat.

Rob: Well, and it’s like the Florida case you were talking about just a little bit ago. She was able to remove herself from the environment and go out to the garage and then she reintroduced herself into the environment with a firearm. You’ve eliminated any possible hope of utilizing the self-defense. You were gone, you could have kept going.

Phil: You were safe.

Rob: You were safe, and you came back, and you confronted, and you had to try to scare somebody now. That’s not self-defense. Your threat was not imminent at that point. It just wasn’t.

Don: Andrew Branca is a friend of CCW Safe and he talks about going to the fight. You just don’t go to the fight and then claim self-defense. That’s what she did in a sense. She had a clear path out. This is my point there. Even if she couldn’t get out the door, she could smash a window, she could get in the drive through the garage door.

There are all sorts of lesser harms than getting that gun and going back inside and shooting it. She would’ve been forgiven for all of that other stuff, probably not prosecuted, certainly not for anything serious if she had done everything possible just to get out of there first, before she resorted to the use of deadly force. This is a case where nobody got hurt and she got a 20-year prison sentence.

Phillip: Go to the fight, right? There’s some times things are in you see something in, you react towards it. I could see in this situation that we’re talking about a one-on, one-off. If you have ability to escape, that’s different but we have situations in our society where there are active shooters. I don’t know if you have a CCW and you go towards that, is that still a self-defense issue, Don? If there’s somebody out there who is a bad guy doing bad things and is it your responsibility to retreat from that or if you go towards it, is that bringing on a whole world to hurt to you also?

Don: I want to be sure that I understand and the question. There’s lots of good stuff built into it, but when you talk about a bad guy, are you talking about someone [crosstalk]?

Phillip: You’re acting like a lawyer now.

Don: Sorry, guys.

Phillip: [unintelligible 00:29:26] that hyperbole crap you’re talking Phil. Let’s get the facts out.

Don: Are we talking about intervening in someone to stop them from committing a crime, a robbery, or sexual assault.

Phillip: Not robbery, but I mean, you’re at the mall and a horrible shooting is going on or something like that, and you go towards that as opposed to coming apart. One of the things you said earlier is go to the fight when you can escape from it. I know that a lot of people and probably a lot of listeners or members here are the kind of people that wouldn’t feel good going to the parking lot when there’s an active shooter going on inside of a mall. They’re probably not built that way. My question is, is that still a self-defense scenario? If you went towards the bad guy who is doing terrible things and assisted in stopping him, is that still, a self-defense issue, or is that something different?

Don: No, I think that is because now you’ve transitioned to the lawful defense of others. If someone else is facing an unlawful deadly force threat, you, in a sense, stand in their shoes and have the same right to intervene to prevent them from being killed as you would if the attack were on you. Legally, if you are interrupting, whether it’s a felony crime like a robbery or a mass shooter of some sort, a sexual assault, yes.

Most jurisdictions not only protect the right of an individual to defend against another person being harmed but also to prevent the commission of an imminent forcible felony of some sort. There’s probably pretty safe ground on either theory in that situation. Tactically, it’s a pretty tough call because you better be right if you’re going to shoot somebody in one of those situations. We’ve all seen those tragedies in the paper of the police shooting someone that came to the aid, and that’s also dangerous stuff, but that’s not the legal stuff. Yes, the legal stuff is you can help somebody else in distress.

Rob: It’s just like you’re talking about, Don, it’s something that Phil’s a concealed carry guy, I’m a concealed carry guy, we’re both at the same mall, something happens and there is a true active shooter. All of a sudden, the first thing I see is Phil engaging that active shooter. I don’t know where that active shooter is, the only thing I see is him firing a gun. You have that tragedy of one good guy shooting another good guy. Everybody [crosstalk] same rightful intent.

We had the one earlier this year. Was it Colorado, I believe, where a guy intercepts and stops an active shooter in progress? Law enforcement rolls up and the very first thing that happens is the officer see him standing over a body, he’s got a gun in his hand, they shoot him and they kill him. That’s a horrible scenario. You got to have things worked out in your mind on how you’re going to respond to things. You don’t want to make yourself a target. Yes, you’re inserting yourself into a situation, you’re doing it for the right reasons and everything else, but you’re taking on tremendous, tremendous responsibility in putting yourself the danger when you do those things.

Don: It’s a good point. Very good point, that how you assess that kind of risk, how you respond to it all critically important, and a lot of that comes down to training, and education, and being interested in learning, visualizing, and being able to understand the legal boundaries as well as the importance of the tactical training.

Rob: Correct. I think we’ve had a lot of good stuff today. You got any takeaways there that you’re thinking of, Phil?

Phillip: I think we have a big takeaway, big takeaway. When you buy your gun and there’s little warning tag in there, if you read real close it’s, “Warning, no warning shots.” That’s an important thing. Write that down.

Don: That works for me, too. Well said.

Rob: Don, thank you so much for coming in and sharing your knowledge with us. Hopefully, this clears some things up for some of our members, some of our viewers. We appreciate you guys tuning in. We look forward to seeing you next week. Appreciate you guys.

Don: Thank you.

Phillip: God bless.