Should You Threaten the Use of Deadly Force and Fire Warning Shots?

Should You Threaten the Use of Deadly Force and Fire Warming Shots?

Should You Threaten the Use of Deadly Force and Fire Warning Shots?

Should you fire a warning shot when confronted by an attacker? In some states it is legal to fire a warning shot and in others it is not. For example, California Penal Code 246.3 (negligent discharge of firearms) prohibits firing a gun in a grossly negligent manner, like a warning shot. As a felony conviction, it provides for up to 3 years in prison and a maximum of $10,000 fine. It is also a felony in New Hampshire, Tennessee, and several other states to fire a warning shot with similar penalties, if you are not justified. A friend in North Carolina actually dispelled a myth of some there, saying that it is NOT a law there that you must fire a warning shot. In North Carolina, there are 4 elements in law for a perfect self-defense that do not include firing warning shots. After a lot of debate and strong opinions expressed by several, the Florida legislature recently passed what some call a “Warning Shot Bill” and it is ready for the Governor to consider signing it into law now. So does the new legislation (or other Warning Shot Laws) authorize warning shots to be fired by citizens? Not really! I read the bill and could not find anyplace in it where it addresses firing a “Warning Shot.” It does amend Chapter 776, F.S. and specifies that the use of deadly force justifications contained therein apply to threatened uses of force as well as actual uses of force. It is really about the broader area of Self Defense and the use of deadly force. It allows for the threatened use of force without falling under the rule of Florida’s “10-20-Life” law, which many believe was not intended to be used in self defense cases. What the new bill and impending law does is to make it legal in the state of Florida for one to effectively display a weapon as a threat in a self-defense situation IF proper justifications are met. I believe that self-defense is a U.S. Constitutional right. The law was changed to legally codify and specify that the threat of use of force in a self-defense situation is acceptable IF the person being attacked was in fear for his life or great bodily injury.  Before passage of the new law, you can go to prison in Florida for merely placing your hand on your holstered handgun while making a verbal threat, or only pointing a gun at someone, let alone firing a shot. After it becomes law, it may be justified to threaten the use of deadly force and/or fire a warning shot, IF you were in fear of death or great bodily harm. On the surface to this non-attorney, it seems like a great addition to the law to have more flexibility to defend yourself, but the expansion of the law may provide more avenues for the prosecuting attorney to attack a valid claim of self-defense and there are other considerations. Opponents of the changes worry they will encourage more people to fire shots and would lead to people pulling guns in unnecessary situations. Will criminals carrying guns illegally and dopers on the streets start pulling them more often? It can complicate a shooting situation by raising more questions than just providing another response in self defense. Some try to over-simplify this issue, but situational variables, criminals, and interpretations are involved.

What about the idea of firing a warning shot? Some might say rather than shooting the attacker, you should have just fired a warning shot, but then how do you know if that would have stopped the attack? Maybe the defender should have fired five warning shots? Would that be acceptable in any encounter? Is the threat of the use of deadly force and/or the firing of a warning shot “REASONABLE?” What if the defender did not aim at the attacker or potential threat, but fired in the general direction to deter him and accidentally shot the attacker. So then is negligence or reckless endangerment involved and to what extent? What if the defender did aim at the attacker and missed because he was a poor shot and hit nearby innocents? We don’t want to get into the thousands of “what if” scenarios, but there are a lot of uncertainties, situational variables, and subjective possibilities.

Consider the question of whether you should you even threaten an attacker or fire a warning shot? Let’s consider the purpose and factors in the threat of the use of deadly force and/or firing a warning shot and the usually-recognized pre-requisites for using deadly force. GENERALLY (this varies by state and legal jurisdiction), to justify the use of deadly force in a confrontation, you must show that the attacker had the ability (weapon), immediate opportunity (close proximity) and intention (hostile words or actions) to cause death or serious bodily injury. There must be a credible threat or there is no reason to even draw or show your gun, let alone press the trigger. Some jurisdictions have other considerations, like it must be unavoidable and the last resort, must be an appropriate level relative to the threat, and/or no other option was available and reasonable, etc. Some accept that the reason for firing a warning shot is to create a credible threat of force that changes the actions of the threat. It may deter the attacker. However, a warning shot may indicate to the judge and/or jury that you were not really in a life-threatening danger. It could arise in court… If you and/or your loved ones were really in such imminent grave danger, why didn’t you shoot the bad guy? Maybe the bad guy would even say that YOU are the aggressor.

Well, it is generally accepted that if you are being attacked and are in imminent fear for your life and/or great bodily harm, then you should take decisive tactical action immediately to save your life and to stop the threat. So there are a lot of influences on your split-second response to fire a warning shot or threaten the use of deadly force. In the heat of a quick confrontation, it is very difficult to decide the appropriate level of force to employ. Using too little force could result in increased injuries or death, while using too much force could result in increased injuries or death and in legal issues. Also, if you believed in the heat of the typical 3-4 seconds “battle” that the attacker had the ability, immediate opportunity and intention to cause death or serious bodily injury to you, why did you just shoot beside him or into the air with a warning shot and not shoot to stop the threat using deadly force? If you are firing a warning shot, are you really in fear for your life? Remember, the shooter is responsible for every bullet that exits the gun and shooting it in the air or in a general direction without a target in mind is irresponsible and a risk to others. What goes up must come down, but where and on whom? The bullet will hit something or someone or both.

Do we really ever have the luxury of time to consider all these things and calmly make the best decision in a quick encounter? So, with or without any new law are warning shots ever appropriate? To me as a non-attorney layman, they are NOT and can be criminal negligence. It is my understanding that removing a handgun from a holster, or even possibly just uncovering it, can be considered a hostile criminal act in a lot of jurisdictions. I remember somewhere in my training being told: “If you are going to draw your handgun from its holster, you had better be legally justified in using it immediately.” From a tactical perspective, the decision to draw and/or fire a warning shot gives up your concealed carry advantage and conveys to the attacker that you are not prepared to shoot him at that moment. After all, what you did was to intentionally draw or present your loaded gun and deliberately miss the attacker, who was presenting an imminent threat of death or great bodily harm to you, when you fired your shot. Usually the best conflict approach is to avoid initial confrontation and introducing a gun into the situation, to not draw or present it IF POSSIBLE… no matter how difficult it may be to do so in the face of the scumbag. This is not a sign of weakness nor of your lack of power or strength, but recognition of your discipline and understanding. Anytime you introduce a gun into a confrontation, it automatically escalates it. So you only introduce a gun as a last resort, if you cannot avoid the confrontation nor resolve it by other non-lethal means. Remember, Prosecutors have terms for “warning shots”… attempted murder, attempted felonious assault, improper discharge of a weapon, brandishing, etc. 

In Conclusion

Using deadly force is a deadly-serious practice and shooting someone is a life-changing event.Remember, you want to AVOID trouble if at all possible and use non-lethal means and non-excessive force first. Deadly force is an absolute last resort and whenever a gun is introduced into a situation, it naturally escalates. With that in mind and having given forethought to these above considerations (which must include ability, opportunity, and intent decisions), in a critical, dangerous moment of self-defense when you are in fear of your life, it is my opinion that you make your calm and rational decision based on that particular set of situational variables and do what you have been trained to do. Recall I am not a lawyer and cannot give legal advice. You have NOT been trained nor instructed to fire “warning shots.” You want to “Stop the Threat” and the attack and take appropriate action until the danger is gone. I sincerely do not intend nor want to “kill” anyone. If the attacker happens to die as a result of their actions, it is chance, and not the intent.

What are your thoughts about “warning shots” and the threatened use of deadly force?

Continued Success! 

Photo by license from Scotllitt- Fotolia.com. 
* This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense and concealed carry. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever. 
© 2014 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col Ben Findley at [email protected]

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  • disqus_409GNN3AvA

    In my humble opinion, I think that firing a warning shot looks great on tv,but in a real life scenario all you are doing is wasting a bullet and allowing your attacker time to press the attack with his weapon of choice.
    I still believe that the second rule of surviving a deadly encounter is to make the FIRST SHOT COUNT

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  • LTC (Retired) LD

    Understand that I am NOT an attorney, but my training has been that Texas discourages the “warning shot.” While not illegal, LEOs may interpret such a discharge in a variety of ways: reckless discharge, public endangerment, aggravated assault, etc. The thought process appears to be that if you discharge the weapon, it better be in direct defense of your life and aimed at the threat only. Anything else will just magnify the problems you’re going to face; even if charges directly related to stopping the threat are dismissed, a “warning shot” still may land you in jail for other offenses. So, short answer … do not waste ammunition on a warning shot; if you must employ deadly force, then employ it on the attacker and stop the threat!

  • Shipwreck

    My instructor was pretty clear. You fire your weapon ONLY to stop an attack, The gun is not a warning device, and points are not scored (during qualifying) for head shots. A head shot could be interpreted as being an intentional “kill” shot, especially by a plaintiff attorney in a civil trial. Sometimes things are black &or white; however, shades of gray are subject to interpretation by LEOs, prosecutors, lawyers, witnesses, judges & esp. civil juries.

    • Andrew

      keep a training log around, good friend of mine only practices the Mozambique technique(2 to the chest and one to the head) because hes in the Marines and thats how they trained him. Its nothing but muscle memory to him and because of that if the threat ever arrives when hes on leave carrying his firearm he will revert back to his lowest level of training and since he trains with this technique then it will be the one deployed in a self defense scenario.

  • jamarnkin

    I’m very much in favor of firing a “warming” shot; and nothing warms like hot lead.

  • Jeff Coder

    The way to get around the problem is to say that you felt threatened for your life and you fired a shot and missed! They can’t get you for being a lousy shot unless there’s collateral damage! 🙂

  • dogshawred

    I find the discussion of “Warning Shots” tiring, either there is a threat to you life or well being or their isn’t, it is matter of perception and everyone’s is different no one knows how you perceived a persons actions.
    ~
    The use of deadly force should be a last resort, prematurely showing ones hand in any situation could very well create a more hostile environment placing you as an aggressor.
    ~
    If I am going to engage an individual with a weapon he has given me no other choice and he has already had all the warning he will get from me. Those who live a life as a criminal can die as a criminal, hazards of the job.

  • 2ThinkN_Do2

    I could see a warning shot situation if a would be assailant was say 20 feet or more away, however unless they have a weapon openly displayed in your direction, are they really a threat at this distance? Every scenario is of course unique and split second decisions will need to made then. All the preparation in the world will only be a starting point in a “real life” event. Personally I believe the first choice should be to remove yourself from the situation if at all possible, then shot and a miss if you think it will diffuse the situation, shoot to disable or shoot to end if absolutely no other choice. And all of that needs to be determined in but a second or so in some cases.

  • Bob Riker

    In my opinion to fire a warning shot is a waste of Ammo. Firing a warning shot could possibly put a totally innocent person in Harms way. Personally I feel to try and retreat is a smarter move than firing a warning shot. If the Threat continues to advance? then at that time you have to make the decision. If you shoot? then shoot to kill. If you don’t then you are giving your attacker the chance to attack again.

  • Drivin_Dave

    If an Assailant has produced a weapon into a situation, I feel he/she has already shown their intention leaving it unnecessary to fire a warning shot. Unless one can avoid such a situation, it would be best to remedy the event as you have trained to do.
    If you fire a warning shot, you are removing your POI from your Target and may not get a second chance to reacquire.

  • SFC Kenneth A. Partyka, SR ( R

    Warning shots are BS, if you need to pull a weapon out it is because you have already decided you need to use deadly force. A warning shot gives the perpetrator extra time to draw down on you, plus where does the warning shot go. People that advocate warning shots are idiots.

  • dogwood2

    What everyone who read Colonel Findley’s article should have taken away is that discharging a firearm is a most serious event. You should exercise utmost restraint in even showing, or “brandishing” in legal parlance, your weapon. One man who did this over a vandal smashing the tail light of his upscale automobile won the case brought against him by the perpetrator’s attorney. Great news until you find out that it cost the guy with the broken tail light $700,000 to get out from under a charge of merely brandishing his pistol. I think a “warning shot” would have had worse consequences than “brandishing”. So, one has to be very, very careful about how they divulge that they are armed or that they will protect themselves if attacked. It’s really difficult for a person who is not afraid of a threat to defuse the situation or back away as though they were fearful. Take Ben Findley’s advice; plan ahead on how you’ll react to various situations. Proceed calmly and deliberately trying to defuse the situation and back off if necessary. But protect yourself at all times.

    • rayzer007

      I always appreciate Ben’s thought provoking articles, and usually find myself agreeing with his analysis and conclusions! This is another example!

  • BigDaddy!

    I believe in “Gun Control”, hit what you aim at!!! There is so much at risk when someone has forced you to defend yourself or others with your firearm, why add to the risk of injuring an innocent person by firing a warning shot! Brandish your weapon and not use it for the only purpose it while be carried for is reckless and dangerous!!!

  • pugsley312

    If the sight of a gun aimed at them doesn’t stop someone then a warning shot will probably not deter them either. Warning shots are goot for getting someones attention, you already have the attackers.

  • Biff Sarin

    I have to agree with many of the comments below. On the one hand, it sounds like the change to the Florida law is a good thing because there might be a time, for instance if you THINK someone is in your home at night, when it seems perfectly reasonable to be roaming with an unholstered gun. It’s ridiculous to charge a citizen with a crime for exercising due caution.

    On the other hand, the concept of a warning shot is just plain reckless. If you are truly in fear for your life, etc, then the use of DEADLY force, not warnings, should be warranted.

    There are a few reasons why a warning shot could cost you dearly. First, it seems that it would be a difficult thing to prove that you were in true fear for your life, thereby justifying your threat of deadly force, if you only fired a warning shot. Second, a warning shot is something that a person would typically do if they really didn’t want to harm their attacker. If the attacker senses this reticence then you may have inadvertently emboldened them. Third, if your fire a warning shot at certain individuals, mentally unstable for instance, they may become enraged that you shot at them which could send them into a frenzy and CAUSE them to violently attack you. lastly, if the person defending themselves (perhaps a spouse who is less interested in and knowledgeable about guns and less skilled in their use) is not intimately familiar with the report and recoil of the gun, then that warning shot, particularly in a confined space such as a hallway, could be very stunning and disorienting to them (much like a flash-bang grenade), making them even more vulnerable to an ensuing attack.

    From my perspective, if you have threatened me to the point where I fear for my safety, the only non-lethal ‘warning’ you get is either the red dot in the middle of your chest or the blinding strobe of a weapon light. If you ‘can’t take the hint’ then my ‘warning shot’ will likely shatter your sternum and stop your heart.

    Lastly, for those who insist on firing a ‘warning shot’, then at least fire it near the assailant. When the police question you, explain that you didn’t fire a warning shot, you simply missed in your first attempt to shoot your attacker. The shot apparently stunned and terrified the attacker who then immediately capitulated and withdrew. At that point, you no longer felt in fear for your safety and decided not to fire any follow up shots. It wasn’t a ‘warning shot’, in the heat of the moment you just missed the intruder.

  • rayzer007

    I always appreciate Ben’s thought provoking articles, and usually find
    myself agreeing with his analysis and conclusions! This is another
    example!
    Drivin Dave’s point-
    “If you fire a warning shot, you are removing your POI from your Target and may not get a second chance to reacquire.”
    – is a good one.

  • AmericanIcon

    My ‘warning shot’ is to center of mass. If you believe you’re ‘threatened’ to the point of needing to employ deadly force, then USE deadly force – otherwise, keep it holstered. A ‘warning shot’ not only wastes ammo you might need in the subsequent fight, the fired round has to go someplace…maybe a kid 3 blocks away, maybe through a neighbor’s wall… An attacker might be drunk, high or insane enough so that a non-fatal hit won’t stop him, a ‘warning shot’ certainly won’t – and will give him that much more time to reach you (and probably not do much beyond annoy him). If you have to fire, make it count – and from a practical point of view, if the responding officers only have one story to ‘sort out’, so much the better.

  • Pete Phillips

    Shot gun Joe Biden solution to all crime Warning shots . Bad Idea in every way . I see no up side to firing to hit nothing . If you do not need to shoot you do not need to shoot . easy if you need to shoot then the situation dictates you shoot the threat . LE training if I am correct is two or three shots > center mass

  • Quietman

    How about a blank for the first round?

    • Dick

      Did your assailant call you and warn you he was going to attack you? When he calls to warn me, I will give the same courtesy and fire a warning shot. In response to your statement, that blank shot may be your ONLY shot. Your only opportunity to save your life.

      • Jacob Ray Fuehne

        i mean they might…. some people say “I’M GOING TO KILL YOU!!” right before they charge…

    • Chuckiechan

      If you have a revolver, maybe. I have a GI .45 I liberated in ‘Nam.

  • Pete Phillips

    The Joe Biden warning shots . Worst advise I have ever heard . If you need to shoot you need to shoot the threat not shoot nothing .. If you do not need to shoot why not yell bang .. If I remember correctly LE training is two shots center mass . . if it’s good enough for police training it is good enough for me .

  • Stephen Peele

    someone tell the non-gunners that this is how soberly legal owners approach this…

  • Mark Cline

    Warning shots are for the movies. They are a misguided attempt at frightening an attacker into submission.

    However, I wish to offer a different opinion from Col. Findley. He wrote: ” I believe that self-defense is a U.S. Constitutional right.” This is incorrect. Self-defense existed long before there was a U.S. Constitution. The right, obligation and duty to protect and defend oneself at all levels is God given. The Declaration of Independence recognized that fact, and the Constitution provides protection from governmental infringement of that right.

  • cawpin

    “For example, California Penal Code 246.3 (negligent discharge of firearms) prohibits firing a gun in a grossly negligent manner, like a warning shot.”

    That is inaccurate information. A warning shot is not automatically grossly negligent and stating so is irresponsible.

    That said, a warning shot is rarely necessary or effective.

  • Gregory Lesniewski

    The intruder is in YOUR home, uninvited, brandishing a weapon with what appears to be intent to do harm to you and/or your loved ones! Aiming the gun at the intruder you announce you have a gun, tell him/her to drop the weapon! If the intruder does not comply, shoot them! If you kill them, that’s the end of threat! If you wound them, be sure their weapon is NOT still in their hand and/or away from their reach! DO NOT TOUCH THIER WEAPON (leaving your prints on it)! Call your lawyer, then call the police immediately & explain the situation! Do not give out too much info until your lawyer arrives, or as directed by your lawyer!

    • First one to call 911 is the (perceived) victim; call your lawyer right after police.

  • amongoose

    The only warning I will give is the sound of the safety clicking “off”.
    If that isn’t sufficient warning,
    It’s called D.S.A.F.F.

  • Centralist

    You fire the warning shot AFTER you have put the target down.

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  • Tin Man

    I agree with Col. Ben wholeheartedly. Do not draw your weapon unless you have made the decision to use it to save someone else’s life, or your own. Once you do, keep firing until the bg is stopped, or your gun is empty. Warning shots only mean you have doubts about drawing your weapon in this situation, or you haven’t the sand to use deadly force and therefore shouldn’t be armed in the first place.

  • davidshockey

    I was trained in the National Guard on how to act in situations where we were on duty during a disaster. If confronted by hostiles we were required to follow this script…

    Shout “Halt!”
    Shout “Halt!” a second time.
    Shout “Do not move or I will shoot!”
    Fire a warning shot.
    Fire at the hostiles if necessary.

    The sergeant teaching the class added with a conspiratorial grin, “There is nothing in the rules that says you have to do this slowly.”

  • Chuckiechan

    In California it’s you against the bad guy, and the state is on the bad guy’s side.

    As sad as it is, you need to maker sure the perp is dead. It makes it more likely the DA will find another rabbit to chase in a few weeks and decide to leave you alone.

    California is generally hostile to self defense, and if you leave your “witness” alive, they will be after your but.

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