Serious students of armed defense know that the warning shot is a bad idea, an act expressly forbidden by most police departments insofar as their own officers rules of engagement. Unfortunately, much of the public and apparently even some members of the bar have not gotten the word.
You would think a law school graduate and a veteran prosecutor would know that warning shots are not a good thing. Yet last summer I testified as an expert witness for the defense in what Ill call Case One, in which a woman had to shoot her estranged husband in self-defense after he violently attacked her and beat her to the ground. She was criminally charged with Manslaughter. The prosecutor made a huge deal out of the fact that the single gunshot wound sustained by the deceased was fired into his torso, and he railed histrionically to the jury that the fact that she hadnt fired a warning shot, or shot to wound, was evidence of guilt. The defense team explained the matter, and a wise and attentive jury very quickly found her Not Guilty of all charges. Yet, I was appalled that in the year 2011 an officer of the court could make an argument so out of touch with reality.
It happens, and the lesson is, you may have to explain why you didnt fire a warning shot. A few years ago in a famous incident in Arizona, Case Two revolved around a retired schoolteacher who was attacked by two large dogs as he finished a hike at a trailhead. He fired two warning shots from his Kimber 10mm pistol, which alarmed the animals enough that they did indeed break off their attack. However, their owner a person diagnosed to be mentally ill, and with a long history of violent, unprovoked assaults attacked the older man, who shot him in self-defense. The defender wound up convicted of a wrongful killing, and spent considerable time in prison before winning an appeal. The prosecutor chose not to take him to court again, leaving him a free man, but he is still hundreds of thousands of dollars in debt after his long legal battle.
That particular case is best known for the fact that the prosecution demonized his use of a supposedly too-powerful 10mm pistol and hollow point bullets, convincing the jury that these things were indicators of evil intent. However, Im told by those close to the case (I wasnt involved myself) that the prosecution also argued that he fired warning shots for a dog, but didnt care enough about human life to fire warning shots for a man. Thats an eye-roller, right there. The warning shots that did in fact deter the dogs obviously did not have the effect of warning the man who owned them: indeed, he attacked the defendant because the defendant had fired the warning shots in the first place.
When They Work
There have certainly been cases where warning shots worked. I had the privilege of knowing the late, great gun writer and career lawman Charles Skeeter Skelton. Charlie wrote of a case where he faced a psycho who was terrorizing a store with a large knife. Charlie took the man at gunpoint, and ordered him to drop the blade. The man refused. Skelton then fired a .44 Special bullet from his Smith & Wesson into the wooden floor, between the mans feet. At that point, the individual instantly got religion, dropped the knife, and surrendered without further ado. This, I would submit, is an example of a successful warning shot worthy of being called Case Three.
As a young patrolman in the early 1970s, I was the first responding officer to Case Four, a scene where an armed citizen had driven off a home invader. Hearing his wife scream when the man came in, he grabbed a little Walther pocket pistol and took the man at gunpoint. The suspect backed out the door screaming threats. The wife took this opportunity to run and grab a 12 gauge shotgun, which she quickly brought to her husband. The man of the house grabbed it and discharged a round deliberately into the air, and the home invader then turned and fled. The warning shot had finally convinced the violent intruder that he had suffered a sudden and acute failure of the victim selection process.
July 17, 2012
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