George Alan Kelly: A Warning About Warning Shots

George Alan Kelly Faces murder charges for firing warning shots at a band of armed men who trespassed on his property.  The seventy-five-year-old rancher heard a single gunshot in the early afternoon of January 30, 2023. His 170-acre ranch lies just 150 yards from the Mexican border near Nogales Arizona – an area that former Border Patrol Chief Rodney Scott told reporters had a “propensity for violence” due to drug cartel activity. According to a Memorandum of Law filed by his lawyer, Kelly “saw a group of men moving through the trees around his home. They were armed with AK-47 rifles, dressed in khakis and camouflaged clothing, and carrying large backpacks.”

“Mr. Kelly told his wife to stay inside,” the memorandum continues, “Mr. Kelly then went on to his porch with a rifle. The leader of the armed group of men saw Mr. Kelly and pointed an AK-47 right at him. Mr. Kelly, fearing for his life and safety, fired shots from his rifle hoping to scare them away …” The memorandum claims that Kelly took care to shoot over the heads of the men.

Kelly immediately reported the incident. Authorities inspected the ranch and left. Later in the day, near sunset, Kelly encountered a body on his property — a man in khakis and camouflaged clothing. He had been shot in the back. Kelly called authorities again. “This is worse than you can imagine,” he said.

A sheriff’s deputy arrested Kelly for first-degree murder. The prosecutor later lowered the charge to second-degree murder. If convicted, Kelly will likely spend the rest of his life in prison. The judge in Kelly’s case has scheduled the trial to begin in September 2023. Kelly will be arguing self-defense, claiming the men, particularly the leader who pointed a rifle at Kelly, posed an imminent, deadly threat. His legal defense, however, becomes more complicated because his lawyer disputes that the man found dead on the property was struck by a bullet fired from Kelly’s rifle.

Kelly’s lawyer writes: “The inherent dangers of illegal smuggling, along with the fact that a group of heavily armed men was seen in the area earlier in the day, strongly points to the conclusion that the deceased was a victim of drug-trafficking related activity.

Don West, criminal defense attorney and National Trial Counsel for CCW Safe says, “This is a weird case because he said, ‘First of all, I didn’t do it. I’m not the one who shot him,’ but the subtext is, and his lawyer would say, ‘But even if he did, he had the legal right to do that because it’s self-defense.’” Don says that, legally, a warning shot, even if no one is struck, killed, or even injured, is the use of deadly force, and the core justification for using deadly force is to address the imminent threat of great bodily harm or death. If a jury finds that Kelly had reason to fear for his life, he should be acquitted regardless of whether the jury believes it was Kelly’s bullet that killed the man found dead on the ranch.

Kelly faces more than just murder charges, however. He also faces two counts of aggravated assault for firing his rifle at the group of men who fled his property. It means that even if a jury determines there is not enough evidence to prove the deceased was killed by Kelly’s bullet, they could still convict him of aggravated assault if they find Kelly wasn’t reasonably in imminent fear of great bodily injury or death. By firing warning shots, Kelly increased his legal exposure and gave prosecutors additional paths for a conviction.

Moreover, by firing warning shots, Kelly potentially undermined his claim that he faced an imminent threat. The prosecution might argue that, if Kelly truly believed he faced imminent peril, he would have fired with the intent to eliminate the threat. The fact that Kelly had the time to fire warning shots suggests that he had time to consider alternatives to deadly force – such as taking cover in a strong, defensible position and calling authorities.

Firearms instructor Steve Moses says that, tactically, firing warning shots can backfire on the defender. Steve says, “The fact that I fired a warning shot is very much an indication that I may or may not be willing to shoot them.” Some attackers – especially those who have a history of violence – may be emboldened by a warning shot if they suspect the shooter lacks the resolve to kill them. Don West agrees and adds that a warning shot may prompt an attacker to escalate. “What happens when you start shooting at them? They have the flight or fight the mental state, too. They’ve got to do something,” Don says. “They either have to high-tail it out of there, or they have to, in their minds, defend themselves.” Kelly’s shots caused the men on his property to flee, but he also could have found himself alone and outnumbered in a gunfight against an armed drug cartel — which could have resulted in consequences far worse than a murder charge.

If George Kelly’s defense attorney is right, there is a chance that the man Kelly found dead on his property wasn’t killed by one of his warning shots. It is possible that the man, who has been deported multiple times and has links to the cartel, was actually killed by someone else. If that is true, then Kelly has been charged with a murder he didn’t commit. If he had never fired a warning shot, there would be no chance that he killed the man, and he wouldn’t be facing the murder charge or the assault charges. 

Steve Moses says firing a warning shot is almost always a bad idea. Steve says he has seen instances where individuals have been successful in scaring off bears and other wildlife with a strategic warning shot, but he cannot imagine any circumstance where a warning shot would be appropriate against a person. Even when warding off an animal, Steve says the shot should be fired into the ground or into some barrier that is guaranteed to safely absorb the bullet. Firing in the direction of a threat – animal or human – only opens the opportunity for disastrous unintended consequences.

As an alternative to firing warning shots, Steve suggests that Kelly could have drawn his rifle to a low-ready position or taken a concealed defensive position with cover and issued a verbal warning that he was armed and that he had called authorities. If the men had moved closer despite the warnings, then Kelly would have been more certain of the threat posed by the men trespassing on his property, and he could have deployed deadly force more deliberatively and with more confidence that his shots would be justified.

The lesson for armed defenders is that warning shots are both tactically and legally risky. If you are ever in a position where you are tempted to fire a warning shot, think of George Kelly. Know that your warning shot could send the message that you’re not prepared to actually kill the attacker if necessary. Understand that you’re responsible for the bullet no matter where it strikes, and you could potentially be held responsible for a round fired by someone else. If the deadly threat is truly imminent, you don’t have time to fire a warning shot. As an alternative to a warning shot, consider taking a low-ready position and issuing a verbal warning. If the threat persists, you’ll be able to respond quickly and deploy deadly force with more confidence that the threat is real and your actions are justifiable.