Understanding Warning Shots
It’s important to first clarify what a warning shot actually is. A warning shot is often described as an intentional discharge of a firearm into the ground or into the air, to either deliberate an intention to harm or to deliberately just scare the assailant away. Even, it is described as a shot fired to either protect oneself or another person in a threatening situation. There are two types of warning shots, one into the ground or into the air. Just to offer some examples, suppose a criminal is robbing a jewelry store and you are inside. You have a gun on you and you fire a shot into the air to frighten away the robber. That is a warning shot. Another example might be, suppose you are at home asleep at night and the motor of your car is running at 3 a.m. in your driveway. You look out your window and you see someone breaking into your car . You have a gun on you, so you warn them by firing a warning shot into the ground to scare them away. That is also a warning shot. Where it gets really complicated is when it comes to discharging a warning shot at a person who is threatening you. For instance, let’s say that you are at home and you hear someone trying to break into your window. They are clearly trespassing on your property and clearly intending you harm. In this case, you fire a warning shot towards the person’s leg or foot. Is that legal? What about a situation where you are simply having an argument with your spouse, or girlfriend. And then suddenly she becomes swollen with rage and begins to approach you wanting to fight. So, you go and grab your gun and fire a warning shot into the air or into the ground. Is that legal?
The Legal Status of Warning Shots in the United States
The use of warning shots in self-defense situations is both highly controversial and generally permissible under United States law. Generally, a warning shot is the discharge of a firearm in a controlled manner that is intended to alert or deter a potential threat without causing harm.
Most states have no specific laws addressing the use of warning shots, and courts generally defer to precedent to provide guidance for specific situations. There are instances, however, the "stand your ground" doctrine applies, and a separate determination can be made as to whether or not a warning shot is reasonable.
The legality of warning shots varies across different jurisdictions. For example, Alaska, Florida, Kansas, Iowa, and Minnesota place restrictions on the use of warning shots. In Minnesota, warning shots involving lethal force are prohibited only in situations where a person is threatening injury or harm and a person is justified to use lethal force in self-defense. Instead of being viewed as a situation where a warning shot cannot be discharged before a person determines whether lethal force is necessary, the Minnesota statute actually deems a warning shot as a separate situation that is strictly prohibited. Fourteen states discourage warning shots and offer little or no guidance as to its possible application (i.e. Hawaii, Kentucky, Maine, Massachusetts, Montana, Nebraska, New Jersey, New York, North Carolina, New Hampshire, Oklahoma, South Carolina, Texas, Utah). Colorado, Illinois, Alabama, New Mexico, and Nevada allow warning shots and offer some guidance. It is also suggested in a 2001 study done by the National Criminal Justice Reference Service that 43 states allow warning shots if it is reasonable.
The viability of warning shots as a defensive or deterrent mechanism is often viewed and supported by a consensus in a number of courts. This concept is supported by the American Law Institute’s Restatement (Second) of Torts. To determine the law, the Restatement uses the definition of "reasonable." The Restatement states that "a user of force under the circumstances is not negligent if he honestly and reasonably believes the use of force may be necessary to protect his interest and his belief is one which a reasonable man would entertain." The Restatement allows the use of force in some defensive situations. Warning shots fall under this doctrine and are often allowed because they are not inconsistent with other Colorado statutes.
Even if the underlying reason for fire is deemed to be reasonable, circumstances will likely dictate whether a shooting is reasonable under the circumstances.
Warning Shots Around the World
Countries around the world have varied stances on the legality of warning shots, with many emphasizing a duty to retreat while others allow for a duty to act in some circumstances.
In Brazil, the Penal Code (Código Penal Brasileiro) includes no provision that severely limits or precludes the use of warning shots. Violent invasions and threats are common in urban areas, and Brazilian legislators are cognizant of the physical danger criminals pose. Law No. 10.826/2003 (amended in 2005) declares that the law does not preclude the use of firearms for self-defense ("legítima defesa"). This includes not only firearms but also anything that allows "an act of attack to be repelled" (Código Penal Brasileiro, art. 25) in the case of a crime that threatens the home or the physical or psychological well-being of a citizen. Because of the longstanding prevalence of gun violence in Brazilian cities, this defense is limited by statute to cases of "inevitable" attack, which provides little guidance in the absence of an attack in-progress. In the limited number of cases in which Brazilian courts have interpreted the term "inevitable," they have found that the term does not include "threats of future acts" (Julgados do STJ por palavra-chaves), suggesting a strong duty to retreat in private defense; thus, the Constitutional Court, in 2017, altered its position, ruling that firing a shot into the air is a form of self-defense when the aggressor threatens physical injury to the defendant’s family or private property (Tribunal de Justiça de São Paulo, Desembargadora Maria Olívia Alves Zatiti, Julgado em 2017). The law surrounding warning shots in Brazil remains unclear.
Israel has similar self-defense laws to those of Brazil. The Israeli Penal Code, 1977, No. 5737, includes no prohibition against warning shots, and it explicitly states that any harm caused is circumstantial evidence of intention to kill the adversary, even where that intention did not exist (Levy). Thus, warning shots are permitted when weapons are maintained by civilians. Use of a handgun for warning shots is deemed by the Israeli courts as "not compatible with the values of society" and can be considered a criminal offense (ASSAF). The Knesset, through its legislation, prohibits various activities, including the possession of knives, swords, and guns. However, civilians may receive an exception from carrying a knife, sword, or gun if they seek to use them as weapons in self-defense or self-protection in the event of an armed robbery, or a ramming attack. The use of firearms or other weapons during an armed robbery is also acceptable if used to prevent a head-on confrontation (PENAL LAW! – Amendment No. 115 to the Criminal Code, 5768-2007). If an individual wishes to obtain a license for a private gun or to carry it in a private area, they must fulfill a number of requirements outlined in section 10 and section 9 of the Gun Licensing Regulations (Order). Because an individual would require an official license to keep a handgun, a shot in the air would be legally dubious if the individual were not licensed to possess the weapon at the time of the shooting. However, because justification is not necessary under the current version of warning shot law, such a limitation would be tenuous.
In Germany, Article 32 of the German Criminal Code states that a person acts in self-defense or defense of another where he:
1. "is attacked unlawfully and directly [within article 228]* and is allowed to defend oneself against the attack; and
2. uses only such means to repel the attack as are reasonable under the circumstances."
In order for an act to be considered reasonable, it must not be disproportionate to the threat (Bundesgerichtshof, 2007). Warning shots may be considered self-defense, provided the warning shot is proportional to the threat. German law does not require an individual to retreat in the face of an attack (Bundesgerichtshof, 2007). In the absence of a legal hierarchy of legal protections, "a degree of proportionality must … be kept" between "the significance of the legal interests to be protected and that of the legal interests that are limited by the exclusion of self-defense" (Bundesgerichtshof, 2006). Thus, while warning shots may be allowed, an individual’s response will come under scrutiny in the courts to determine whether the individual could have prevented the attack by withdrawing, or "turning about," (Bundesgerichtshof, 2007), and whether there was "a danger to his life or physical integrity, or that of a third party, or of a serious damage to his property" (Bundesgerichtshof, 2006).
The Dangers of Warning Shots
The potential risks associated with firing warning shots may not be readily apparent to some gun owners. Firing a warning shot should never be taken lightly, for any number of reasons. Perhaps the most obvious reason is that there may be unintended consequences. Those include:
There are other reasons why firing a warning shot can turn out to be a really bad idea, and they don’t all have to do with causing injury or death to another person: Some states do have affirmative defenses available to a person who fires a warning shot, but the burden is on the gun owner to prove that the use of a firearm was reasonable under the circumstances. As you might expect, state courts in some jurisdictions have ruled against gun owners attempting to invoke this defense.
The National Rifle Association has made it clear that they do not approve of warning shots or "noisy guns." Many trainers across the country feel similarly. It should be noted that every time a trigger is pulled on any firearm, there is a risk of a "bad day." That means that, more often than not, folks accidentally injure or kill themselves or other innocent people when they wrongly handle a firearm. Calling this a "bad day" is an understatement. There is no way that firing a firearm is ever a good idea when you are not using the gun in the manner for which it was designed. Stated another way, a gun is designed to be used and fired only when it is pointing at a target that you intend to shoot. Therefore, if you are not shooting the person you intend to shoot, do not be tempted to fire a warning shot.
Firing Warning Shots in Self-Defense Situations
From a legal standpoint, warning shots potentially complicate matters when there is a need to use force to defend oneself. Under many self-defense statutes, you have a duty to retreat before you can use force; however, this duty to retreat likely hinges on whether there was no reasonable possibility of using non-lethal or less-lethal forms of force before deadly force was used. If you fire a warning shot and miss the target, you have already passed up your opportunity for non-lethal or less-lethal forms of force. Some self-defense statutes require that the force used be proportional to the perceived danger regarding the situation. If the situation does not warrant the use of deadly force, but warrant the use of non-lethal or less-lethal forms of force , the warning shot constitutes the use of lethal force in its own right, and a subsequent use of lethal force would not be considered proportional. Finally, many self-defense statutes require that the use of force be reasonable. If it was obvious that firing a warning shot was unnecessary, dangerous, or unreasonable under all the facts and circumstances surrounding the matter, a self-defense claim involving the use of deadly force may not be considered reasonable. For instance, if upon firing the warning shot it was obvious that it might hit bystanders, then a self-defense claim for the use of deadly force would not be necessary; and the warning shot would and should have been sufficient.
Warning Shot Alternatives
There are a number of methods of telling an intruder that you are armed and prepared to defend yourself that avoid the legal pitfalls of firing a warning shot. Do not forget, if firing the shot harms an innocent bystander, or inadvertently breaks your finger or hand while racking the slide on your pistol because you are nervous, and the resulting bullet goes astray, you may well be facing civil liability in addition to the criminal charges for discharging your firearm. Here are some suggested alternatives:
- Point the muzzle of your firearm towards the intruder and shout, "Back off! I have a gun and I am prepared to use it! You will not be able to leave this place unless you back away now!"
- Keep the firearm hidden or concealed but verbally alert the intruder that you are prepared to use deadly force if necessary to protect yourself, such as: "The room is booby-trapped, and if you take even one more step forward you are going to trigger a device that will cause a bullet to go right through your skull!"
- Use a less lethal alternative such as utilizing noisemaking devices such as a wind chime, metal flashing or other device to alert you as to any movement or activity around your home, business or property as a warning to you that you may need to investigate or take action. These are basically just big "doorbells" that are either sold commercially or can be easily constructed from household materials.
Recent Case Law and Decisions
The concept of warning shots has been the subject of legal discussion and case law. The interpretation concerning the use of warning shots has been different depending upon the state.
In Florida, prior to passage of "Stand Your Ground" law in 2005, the courts did not provide much information regarding warning shots. However, one case stands out in that it is still treated as good law in Florida. In the case of Cindyss v. State, 375 So.2d 1089 (Fla. 1980), the defendant was charged with manslaughter with a firearm. The evidence showed that the victim had been killed by a shot fired from a short distance, evidenced by burning and sooting on the victim’s clothes and body. The defendant argued that she had fired warning shots into the air and the gun accidentally went off, firing the fatal shot. The court stated that "Warning shots across a room will not enhance the brandishing of a gun as a means of self-protection." Id. at 1090. The court specifically stated that the defendant had not fired warning shots.
Also in Florida, a 2001 case involved a homeowner who, after an argument with his wife about her wanting to call the police because the husband heard someone breaking into the home. To avoid confrontation with the police, the homeowner went to get his gun. When the assailant came into the master bedroom, the homeowner fired what he claims was a warning shot. While the case is not officially published, which means it is not binding law, it does give some indication of how the law may be interpreted. "This court has affirmed a conviction for shooting into an occupied dwelling when a husband fired a shot into the ground and then into the master bedroom of his townhome shortly after separating from his wife and after having an argument about her bringing the police to the home." Joshua v. State, 2001 WL 1169960 (Fla. 3d DCA, October 3, 2001).
In Ohio, the recent case State v. Thomas 2016-Ohio-409, the court reviewed ORC 2903.11 which states, "No person shall knowingly do any of the following:" (A) [c]ause serious physical harm to another or to another’s unborn . " The relevant facts are that the defendant went to the residence of the victim and stated that the victim and the defendant had an argument in the past but they were friends now. When the victim attempted to go inside, the defendant grabbed him and pulled him backwards. The victim’s girlfriend came out of the house. The defendant pointed a gun at the girlfriend. The defendant told the girlfriend that he was going to kill her. Then the defendant fired several shots from a location fifteen to thirty feet away, striking the victim in the neck and jaw and striking the girlfriend in the arm and back. The Court stated that "[i]n determining whether the offender acted knowingly, a factfinder may rely on surrounding circumstances indicating the offender’s state of mind at the time of the offense." Id., ¶40, citing State v. Campbell, 69 Ohio St.3d 555, 634 N.E.2d 227 (1994). The defendant in the case was convicted of felonious assault and received a prison term of ten years.
There are many arguments made by defendants regarding the reasonableness their actions. The defendant in Campbell claimed that he had fired a weapon in an attempt to scare away some men that were trying to beat him. He was found guilty of felonious assault. In State v. Russo, 2d Dist. Montgomery No. 20894, 2006-Ohio-2347, the defendant fired his handgun twenty-four times into a group of three men that he did not know who were again attempting to beat him. The court in Campbell found that it was not reasonable to shoot up to six rounds straight into a group of people. The court concluded that the fact that there were over forty spectators to the fight at the bar, including minors and the fact that the appellant fired many more times than necessary, showed that the threat was not imminent and that the escalation of violence occurred due to the appellant’s own conduct." State v. Russo, 2006-Ohio-2347. The court found in favor of the state, finding that the appellant acted recklessly and therefore knowingly.