There are several court case examples of shooters firing warning shots in self-defense for personal protection, scaring someone off their property, preventing someone from stealing their property and reacting against a tough guy shoving someone to the ground. But are warning shots advantageous, and what are the considerations and limitations? Maybe the threat is holding a gun, but is not pointing the gun directly at you, a law-abiding citizen, so is the person a real threat? What should you do? If you do not act quickly, you could be shot, seriously injured, or even killed. Do you draw your concealed carry handgun, for which you have a legal carry license, and fire a warning shot into the air or ground? Is this the best action, is it legal, or can you be arrested and charged with, perhaps, a felony? History is replete with many examples of warning shots and their consequences.
The Warning “Shot Heard Round the World?”
Was the opening shot of the battle of Lexington in 1775, which began the American Revolutionary War, started by accident from a warning shot? British Marine Major John Pitcairn and the American Militia Captain John Parker and their men were facing each other. It is documented that both Pitcairn and Parker ordered their men to hold fire, disperse, and go home. There was no order to fire from either side. But, a shot was fired from an unknown source. Some say a warning shot by a British soldier, and other witnesses say it was a wild warning shot from a colonial civilian onlooker. Who really knows now, but the War that led to the creation of our United States of America may have started with a warning shot.
Do Warning Shots Have An Advantage?
Firing a warning shot across the bow of a ship to determine its nationality colors was a common occurrence for protection during the 18th century, especially because of piracy. Today, a ship, boat, or even an aircraft may fire a warning shot to signal another vessel or craft to stop an action for protection or stay out of a territory. Most remember the piracy incidences in Somalia in 2019 and 2018. Two fishing vessels were attacked 280 nautical miles off the coast of Somalia. A Yemen fishing vessel was seized, and warning shots from personnel on board repelled an attempt to board a bulk carrier 340 nautical miles of Mogadishu. U.S. warships have fired warning shots toward Iranian ships and Somalia pirates. South Korea has fired warning shots at North Korean ships. U.S. F-22s have fired warning shots at Russian Su-25 aircraft that entered U.S. coalition airspace over Syria.
The Key Question to Consider
In a self-defense situation, then, firing a warning shot seems to have an advantage for protecting yourself and could always be better than aiming and shooting directly at another person? But, hold on. Before you conclude that, it is best to consider several factors, including legal ramifications and the specific situation. So, do not rush to a decision yet.
The key question to consider then “Is a warning shot legally treated as the use of deadly force?”
Every state’s law is different about the definition and applications of a warning shot, so you need to determine for your state or jurisdiction what it legally means and is it deadly force. Understand that the author’s opinions in this article are from a non-legal layman and offered for basic educational purposes.
Opinion: A Warning Shot Puts You In Much Jeopardy, Even If Someone Is Not Killed Or Injured.
The Answer to “Is a Warning Shot Treated as the Use of Deadly Force?”
Most states legally treat a warning shot as a use of deadly force. This applies even if you did not injure or kill anyone. Your law will evaluate your actions using the same legal standards, rules, and penalties as would be used if you actually shot and/or killed someone. Do not take the chance by firing a warning shot. Clearly, recognize that there are always legal considerations and consequences each and every time you use your firearm, even in a self-defense situation. Very precisely follow the exact, applicable law anytime you use your firearm because your actions will be carefully scrutinized. Assumptions may even be made by witnesses, friends, juries, and judges, which are incorrect, your behavior second-guessed, and opinions expressed against you from those that are strangers to you and do not know your excellent, fair-minded reputation and well-intentioned priorities and actions. When you fire a warning shot, you have a high probability of being in serious legal problems, much jeopardy, and high costs, both financial and personal, like jail time. Is it worth it to fire a warning shot? Again if you are armed, know the law in your jurisdiction and remember that ignorance of the law is never a defense. Do not rely on even a well-intentioned best friend or what an experienced, fellow concealed carrier tells you. Get help from a professional attorney specializing in firearm laws in your state.
Some Examples of Warning Shot Laws and Perspectives
To answer the question about firing a warning shot, sadly, it is not so simple. You need to know the details about what the law says in your state and specific facts about the situation, and what they allow you to legally do. Keep in mind that I am not an attorney and am not giving legal opinions or advice.
In my home state of Florida, for example, Florida Statute 776.012, Subsection 1, allows a person to:
“use or threaten to use force, except deadly force, against another when and to the extent the person reasonably believes such force is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.”
So if the tough guy shoves you to the ground, he used non-deadly force. So you would only be able to react with using non-deadly force, not deadly force, and firing a warning shot, in this layman’s opinion. Florida courts have determined that the firing of a firearm, whether intentionally or unintentionally, in self-defense is the use of deadly force. Now, if that tough guy who shoved you also pulls out a knife or handgun and moves toward you, this would allow you to go from using non-deadly force to being able to threaten to use or use deadly force and fire a warning shot, per this non-legal layman. But be cautious and check with a lawyer in your jurisdiction.
Although warning shots are not specifically addressed in Georgia law, you can be charged with a crime if you fire a warning shot. In 2016, the Georgia Supreme Court ruled that “A warning shot can be an aggravated assault.” It is considered reckless conduct (or gross negligence) and can land you in jail for 12 months because of its status as a misdemeanor.
California has a different perspective on firing a warning shot, according to their California Penal Code Section 246.3 PC: “Shooting in a grossly negligent manner.” This makes it illegal to shoot off firearms in a grossly negligent fashion. “Gross negligence” in California involves more than ordinary carelessness, inattention, or lapses in judgment.
Opinion: Firing A Warning Shot Can Be A Gross Negligence Felony.
What is “Gross Negligence?”
A grossly negligent shooting can usually be charged as either a felony or a misdemeanor, depending on the facts, the situation, and the criminal record of the individual.
Usually, someone acts with “gross negligence” in California when:
- the individual acts in a reckless way that creates a high risk of death or great bodily harm;
- a “reasonable person” would have known that acting in that way would create a risk;
- the shooting could have resulted in the injury or death of a person; and
- the defendant did not act in “self-defense.”
So, if the shot was fired in “self-defense,” a defendant could possibly have a valid defense against charges of negligent discharge of a firearm. Of course, this is situation-dependent and subjective. Generally, “if a person reasonably believes they are about to be attacked or killed, he or she can legally fire a ‘warning shot,'” according to California law and the Kraut Law Group in Los Angeles. But, proving this might be a challenge.
An element of the California crime requires that the shooting could have been deadly or dangerous. If the shot occurs in a completely isolated area, the defendant would have a good argument that criminal charges should not apply as no one was put at risk. Generally, as a non-legal layman, I understand that a person who believed that the firearm he discharged was not loaded would not be guilty of the crime in California. Of course, this varies by state.
Warning Shots to Protect Your Property
Firing warning shots as a way to protect your property is never advised in most states since it could be considered disorderly or deadly conduct. In Texas, for example, you could be breaking the law by recklessly discharging a gun in a public place, including firing a gun on private or public property within Texas cities that have a population of 100,000 or more. It is probably best to call the police if you believe someone is trespassing on your property.
Warning shots must usually have a defined target. They should be considered only when deadly force is definitely justified and when the shooter reasonably believes that the warning shot will reduce the possibility that deadly force will have to be used. But it is essential to keep in mind critical factors, justification criteria, and the situation.
Opinion: Warning Shots Are Deadly Force
Warning shots can legally and rightfully be considered deadly force. And the shooter must act reasonably in the use of deadly force. So, know your legal rights in your particular state and jurisdiction and seek legal assistance from qualified professionals about its possible use before you might need it.
Criteria to Justify the Use of Deadly-Force Warning Shots
While it varies by state and legal jurisdiction, to justify the use of deadly force, i.e., a warning shot, in a confrontation, this non-legal layman understands that you must generally show (all three):
- that the attacker had the ability (weapon);
- immediate opportunity (close proximity); and
- intention (hostile words or actions) to cause death or serious bodily injury.
Opinion: There Must Be A Credible Threat.
There must be a “credible” threat, or there is no reason to even draw or show your gun, let alone press the trigger to fire a deadly-force warning shot even if the laws allow it. Some jurisdictions have other considerations like it must be unavoidable. 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 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 just directly shoot the bad guy or gal? Maybe the bad guy or gal might even claim if you fire a warning shot that you are the aggressor.
A credible threat is when you threaten to kill or physically harm someone AND
- that person is thereby placed in a state of reasonably sustained fear for his/her safety or the safety of his/her immediate family;
- the threat is specific and unequivocal; and
- you communicate the threat verbally, in writing, or via an electronically-transmitted device.
Note that a criminal threat can be charged whether or not you have the ability to carry out the threat and even if you do not actually intend to execute the threat.
- threatening to shoot another while you are holding a gun,
- a recently fired employee calling the former boss and saying, “you and the office staff better watch your backs,”
- emailing or texting your ex that you are going to set fire to her apartment
Opinions: Never Fire A Warning Shot. Consider a Direct Shoot of the Threat Only per the Situation as Justified.
Consider that even law enforcement officers are strictly forbidden to fire warning shots, as everyone is responsible and liable for all rounds fired. Shots in the ground or air are not controllable, and ricochets or other bad things can happen. Recognize that while you are thinking about firing a warning shot to scare off the criminal or have done so as the aggressor, the criminal probably will be quickly attacking you. He could claim self-defense since you are the reckless aggressor who fired the first shot. Only directly shoot the threat if legally justified.
Opinion: You Could Become The Aggressor.
Evidence will show that your gun was fired. It would then be difficult for you to prove self-defense. And what if your gun jams and does not fire. You could quickly then be attacked and end up dead.
Firing a warning shot is usually never a good idea because most states legally treat it as the use of deadly force by the aggressor. The difficult and costly burden of proof may be on you to clearly show that it was a righteous use of deadly force. This applies even if you did not injure or kill anyone. The law will evaluate your actions using the same legal standards, rules, and penalties as would be used if you were the aggressor and actually shot and/or killed someone. If there was such an immediate deadly threat to you, why didn’t you shoot the threat directly rather than give a warning?
Using deadly force with a warning shot and shooting someone is a life-changing event. You want to de-escalate confrontations and avoid trouble if at all possible and use non-lethal means and non-excessive force first. Deadly-force is an absolute last resort because whenever a gun is introduced into a situation, it naturally escalates. Of course, it is my opinion that you make your calm and rational decision based on each particular set of situational variables. And I sincerely do not intend nor want to “kill” or harm anyone… and that is not a sign of weakness or lack of marksmanship skills. Will you meet this challenge of appropriately deciding to fire a warning shot and thus using deadly force in a critical situation?
Photo by author.
* 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.
© 2021 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 ColBFF@gmail.com.