Firing A 'Warning Shot'

Before I start this rant, let me state up front: I am not a lawyer, nor have I ever played one on TV. Also, I am not a sexist, but I use the pronouns he and him for ease and clarity. That being said, on with the show.

In a story out of Pennsylvania a home invader was shot dead (don't you love a happy ending?) but the homeowner made what could have been a horrific mistake:

"She said she called to her husband, who came downstairs with a gun and fired a warning shot first. Then, she said, he fired another shot that hit the man ..."

Okay, Rule Number One after surviving a defensive shooting: STFU¹. As my first permit class instructor (who was a prosecutor for 12 years and a defense attorney for the past 30 or so) said, the only thing you should say to the cops after a DGU is "I was in fear for my life. I wish to speak to my attorney. I do not consent to any search." The only thing your (the shooter's) spouse and kids should say to the cops after a DGU is "I wish to speak to an attorney. I do not consent to any search."

Now, was this guy in West Pike Run Township in the right? As far as I can tell, absolutely. Did he act lawfully by shooting an intruder dead? Almost certainly. So what, you may ask, did our intrepid homeowner do wrong? He (or his wife) admitted that he "fired a warning shot". Now if your local prosecutor has dreams of higher office and is even slightly anti-gun, you do not want your DGU to be his springboard.

"But, but, but ..." I hear you sputter, "how can not shooting someone be a problem?" Unfortunately, in many jurisdictions just shooting a weapon is considered using deadly force², and in almost all jurisdictions I know of, you need to be in immediate fear of death or great bodily harm before you can use deadly force. Well obviously, the prosecutor will explain to the jury, if you had time enough to fire a warning shot, you were not in immediate etc., therefore you were not justified in using deadly force!

This is where your lawyer comes in. You tell him everything that happened and let him be the one to explain to the cops that "my client fired one shot which missed the assailant who continued to advance, so he fired again, striking the assailant." He's not lying; if you fired a warning shot then your first shot did miss, but let him be the one to tell the cops that. After all, the difference between a warning shot and a kill shot is the shooter's intention. Since your lawyer is not psychic he can't know whether you fired for warning or effect, so he is not lying to the police. Remember, they didn't get Martha Stewart for insider trading, they got her for lying to the police.

So, am I saying that you should always shoot to kill? No, you shoot to live, but don't give second-guessing anti-gun prosecutors, politicians and press fodder to make your life a living hell. "I was in fear for my life. I wish to speak to my attorney. I do not consent to any search."


1: Stands for "Shut the heck up."

2: I know of one guy who was arrested and charged with attempted murder for firing his shotgun straight up in the air (a fact that was never disputed) to warn off some kids who were joyriding across his fields. After running out of money for lawyers he eventually plead out to a lesser charge, but he still had a felony conviction meaning no guns for a long time, if ever.