It is standard doctrine among every self-defense firearms instructor I know
to say that, for a variety of reasons I needn't bother to list, firing a
"warning shot" is both tactically and legally a bad decision in a
self-defense situation. Same goes for trying for a peripheral hit (shooting
the perp's arm or leg).
In spite of this, I can imagine a very narrow range of possible scenarios in
which one or the other seems like a reasonable option. These mostly involve
some sort of standoff, in which one is unable to escape a situation, but the
attacker, while close enough to be a real danger, is not further advancing,
although neither is he turned to flight by the sight of the gun.
This came up on a local discussion group recently, and that I would even
hold open those possibilities was roundly denounced. I wondered what, if
anything, my state appellate courts had said about such matters.
To my considerable surprise, Minnesota's appellate courts have a distinct
tendency to approve of both warning shots and attempts to stop an attacker
with a peripheral shot rather than a central torso shot. There is nothing so
definite as to elevate it to a legal doctrine of any kind. But there is
unmistakably a favorable nod given to both cops and citizens who attempt
either option instead of, or before, resorting to a center of mass shot, and
just as clearly a unfavorable view for defendants who did not. (This tends
to take the form of "There is no evidence in the record that appellant fired
a warning shot or attempted to shoot to wound before the lethal shots were
fired." This weighs in favor of sustaining the trial court's disallowing a
self-defense jury instruction, or whatever the immediate question on appeal
may be.)
I wondered if this was a fluke, so I haphazardly selected a few other states
and ran similar searches, for "warning shot." The same trend was evident
everywhere.
This seems to hold both for genuine innocents and for those (how can we say
this politely?) who were engaged in questionable activity at the time that
"self-defense" suddenly became necessary.
The question of the day: What accounts for the apparent discrepancy between
what is routinely taught as legally prudent and what the appellate courts
are holding?
So far, not a single case has mentioned that there was an expert witness for
the defendant who testified that a warning shot or attempt to hit a limb was
an unsafe and unsound practice. Perhaps this means that those who get such
experts tend not to be convicted, and thus don't need to appeal (and the
prosecutors don't think they'll win reversal on appeal). Or perhaps such
experts are commonly used, with varying success, and just don't warrant
mention in the appellate decision.
I suspect that judicial unfamiliarity with real-life, good-guy self-defense
firearms use allows them, without even giving it much thought, to buy into
Hollywood stereotypes of warning shots and shoulder/hand/leg hits.
An incidental point of interest was that it appeared that warning shots, in
this completely unscientific sampling, were fairly effective when used! Most
commonly this is when police were pursuing a fleeing suspect, which, for a
bunch of reasons, may not be applicable to civilian self-defense when faced
at fairly close range with a bad guy unwilling to retreat.
Thoughts, opinions, even wild speculation about the apparent discrepancy are
welcomed. Of course, systematic searching of your own state's case law to
see if the pattern is repeated there would be even better and more
interesting.
Assuming the pattern I've noted is both real and consistent, does it provide
a basis for trying to persuade self-defense instructors to change what they
tell students about the legal pros and cons of warning shots and deliberate
peripheral shots? (I think generally not, but I'll let others speak.)
PLEASE NOTE: This invitation does not extend to debating the tactical wisdom
(or lack thereof) of warning shots. The questions here are legal ones, not
tactical ones.
**************
Below is the longish summary I wrote for the local e-group about my findings
in Minnesota case law.
Here's what we can learn about warning shots from the decisions of the MN
appellate courts. There are 17 cases in which the term "warning shot"
occurs; 11 are published, 6 unpublished.
First, there are the published--and therefore precedential--cases.
I was surprised to discover that we have a fairly recent case from the
supreme court that addresses the question in some detail:
Minn.,1994.
State v. Post
512 N.W.2d 99
In short, the defendant was a private security guard with a carry permit.
Away from his job, he got involved in an altercation. Fired a warning shot
(that actually grazed the attacker), then fired a shot to a limb, intending
to wound, before a center of mass shot. The prosecutor introduced into
evidence the security company's instructions that said never fire a warning
shot, never shoot to wound. The supreme court said that that mandated a new
trial, because the jury could have been mislead into think that those rules
constituted legal restrictions on the use of deadly force, when they don't.
The court, in fact, says that, absent this piece of evidence, the jury might
have concluded that the defendant acted reasonably by using a graduated,
escalating use of force. The language seems to me to suggest a pretty strong
approval of these options if they are available. Here's an extended excerpt:
Defendant is a 30-year-old Minneapolitan with a master's degree in theater
who was employed as a security guard. On the evening of September 6, 1991,
he accompanied 17-year-old Eric Geislinger and 20-year-old Thomas Yost to a
gunshop in Eden Valley. Yost, impatient to practice target shooting, asked
defendant to buy a handgun because defendant had a permit to carry a gun
and, therefore, was not subject to the seven-day waiting period.
After defendant had purchased the gun, Geislinger drove them to the Corner
Bar in Eden Valley so that defendant could buy beer to take home. While the
defendant was in the bar, Jeffrey Teicher drove by the parking lot where
Geislinger and Yost were waiting. Thinking he had heard something, Teicher
doubled back and confronted Geislinger and Yost. After Teicher and
Geislinger exchanged insults, Teicher drove off.
*101 When the defendant returned, Geislinger drove south on Highway 22, then
turned east on Highway 55. Teicher closely followed the Geislinger car and,
according to the occupants of the Geislinger car and one of Teicher's
passengers (who contradicted Teicher's testimony) began flashing his
high-beam headlights. Teicher's other passenger, his girlfriend, said
Teicher put his high-beams on and left them on. After this conduct had
continued while they traveled several miles, defendant told Geislinger to
pull over so that Teicher could pass. Instead, Teicher pulled up behind
Geislinger's car.
Defendant, who is 5 feet 6 inches tall and weighs about 150 pounds, thrust a
loaded 9 millimeter semi-automatic handgun into his belt holster (the gun
was not the one purchased that evening) and left the car to meet Teicher
between the two cars. Defendant testified that he showed Teicher his
security guard identification, said he was a private security guard and that
he could arrange to have Teicher, who obviously had been drinking, arrested
for DWI and harassment. Teicher, who weighs approximately 100 pounds more
than defendant, slapped the card from defendant's hand. At some
point--either then or during a subsequent struggle, if there was a
subsequent struggle--defendant's watch came loose and fell off.
There is a conflict in the evidence about what happened after Teicher
slapped the identification card away. Defendant claimed that he reasonably
believed Teicher pulled a knife; defendant testified that it was in response
to that and to Teicher's lunging at him that he pulled out the gun. He
testified that he fired three shots, the first, intended as a warning shot
into the ground, grazed Teicher's knee; the second, aimed at Teicher's lower
leg struck Teicher in the hip, and a third shot, discharged when the two men
struggled for the gun, hit Teicher in the abdomen. There was testimony that
Teicher might have died had he not received prompt medical attention.
It is undisputed that defendant hopped into the car and fled with the others
immediately after the shooting.
...
The other claim of error relied upon by defendant is that the trial court
erred in admitting evidence of the defendant's employer's standards for the
use of a firearm by a security guard.
*103 Defendant focuses his objection to the employer's manual on the
manual's guidelines for handling a handgun. The manual sets out these rules:
do not remove the weapon to threaten anyone; "NEVER fire a warning shot";
always point the gun in a safe direction; do not touch the trigger until
ready to fire; keep the weapon unloaded while off-duty; know how it
operates; understand the proper ammunition; "NEVER mix alcohol or drugs when
carrying a weapon"; and always handle it as if it were loaded. The manual
also states "NEVER point a weapon at anyone you do not intend to shoot or in
any direction where an accidental discharge may do harm."
Defendant argues that "[b]ecause the privilege of self-defense depends on
whether the decision to use force is reasonable, not on whether justifiable
force is used in a careful manner, the trial court abused its discretion and
confused the jury" by admitting the manual. He contends that the manual was
irrelevant and prejudicial because it "injected a negligence-style standard
of care" which could mislead the jury in evaluating his self-defense claim.
The state counters by arguing that whether defendant was trained in the use
of deadly force and what he was told bear on the issue of defendant's
intent.
We conclude that the trial court erred in admitting the manual and allowing
its use in cross-examining defendant. For example, as a result of the trial
court's ruling, the jury learned that defendant had been instructed never to
fire a warning shot and that his firing a warning shot violated the
standards in the manual. However, those standards rather obviously were
designed to guard against the employer's potential civil liability for the
discharge of a firearm by one of the employer's guards. The standards are
not standards for determining if a criminal defendant acted reasonably in
shooting someone during a nighttime confrontation out on a highway, and
their introduction tended to divert the jury's attention from the issues
before it. Indeed, without the evidence that it was a violation of
"standards" to fire a warning shot, the jury might well have been inclined
to view the firing of a warning shot as evidence of a reasonable, gradually
increasing use of force by defendant to meet a perceived threat to his own
safety.
*********
Minn.App.,1986.
State v. Cabrales
392 N.W.2d 347
Given the limited scope of our review we cannot say that appellant was
justified in shooting Pedroso. Although a large knife was found next to
Pedroso, the jury could have concluded that Pedroso never threatened to use
it on appellant. Appellant testified that Pedroso assaulted him, but no one
corroborated this story. We must assume the jury disbelieved appellant's
story. The jury could easily have believed Ravelo's story that appellant
shot without warning after Ravelo stated that they needed to talk. The jury
could also have reasonably concluded that Pedroso was quite a distance from
appellant when appellant shot him. Once again, although appellant testified
that Pedroso was four or five feet from him, the jury could have believed
other testimony which placed Pedroso at a much greater distance away from
appellant. Finally, the jury could have felt that, regardless of the
distance, shooting Pedroso in the chest was unreasonable in light of the
danger to appellant. At most, Pedroso had an intimidating looking knife,
while appellant had a .38 special revolver. The jury could have felt that
appellant should have merely showed Pedroso the gun, threatened him, or
fired a warning shot.
***
That seems to be a pretty good indicator that the Court of Appeals, while
not mandating a warning shot, would expect a jury to look more favorably on
a defendant who used that option if it was reasonably available.
In my opinion, the remaining 9 published cases don't shed any light on what
the courts think of warning shots, because nothing in the decision turns on
the fact that a warning shot was used. Furthermore, many of the cases have
no real innocent involved.
Now for the unpublished cases.
This one has been mentioned previously in this thread:
Minn.App.,2003.
State v. Ives
2003 WL 1962182 (Minn.App.)
Moreover, the victims did not realize that appellant's gun was real and, as
we have stated earlier, appellant had the opportunity to fire a warning shot
into the air or the ground. On this record, we find no basis for
characterizing the victims as aggressors, so as to mitigate the culpability
of appellant's conduct.
This is a very clear indication that the Court of Appeals viewed the lack of
a warning shot, when there was adequate opportunity for one, as a piece of
information that contradicted the defendant's claim that he was engaged in
self-defense.
The next one has also been mentioned here:
Minn.App.,1991.
State v. Spellmon
1991 WL 26065 (Minn.App.)
The state established under the Boyce test that appellant was not justified
in killing Thompson. See, State v. Fidel, 451 N.W.2d 350, 353
(Minn.App.1990), pet. for rev. denied (Minn. Apr. 13, 1990). Evidence in the
record established that appellant never saw Thompson's gun; she did not aim
her gun away from Thompson in order to fire a warning shot to scare him; she
fired a random shot from two to five feet away from the men; she made no
other attempt to stop Thompson; she took no other less drastic measures
before firing her shotgun.
Once again, the failure to fire a warning shot when the court believes
(apparently) that that was a viable option works against the defendant's
claim that the shooting was justified.
Next is
Minn.App.,1989.
State v. Watts
1989 WL 26686
Sgt. Charles Miles testified that Watts told him that Love did not hit him.
Monty Powell, who was present during the shooting but did not witness it,
testified that he heard nothing that would indicate that Watts and Love were
involved in a physical altercation on the stairs. In light of the verdict,
we must assume the jury believed this testimony and disbelieved the
testimony of Watts and Cobb. See State v. Ulvinen, 313 N.W.2d 425, 428
(Minn.1981). The jury could reasonably conclude, based on the evidence, that
Watts and Love were not involved in a physical fight and that Watts lacked
reasonable grounds to believe that he was in imminent danger of death or
great bodily harm.
Additionally, Watts admitted that he did not attempt to employ any lesser
means to resolve the conflict with Love. He did not order Love to leave the
house at gunpoint, fire a warning shot, or attempt to incapacitate Love with
a lesser injury. The jury could reasonably conclude that Watts did not
attempt to retreat or avoid the confrontation and used unreasonable force.
Again, there is a definite indication that the lack of a warning shot helps
convince the appellate court that the jury was reasonable in determining
that the defendant did not use reasonable force.
The other cases don't seem to me to shed any light on how the appellate
courts view the presence or absence of a warning shot.
In light of all of this, I'd say that it's very, very clear that--right or
wrong--Minnesota's appellate courts tend to see the use of a warning shot
and/or an attempt to shoot a limb, when it's possible, as a factor that
supports a claim that one was shooting in self-defense and was using
escalating means of defense, resorting to torso shots only as the very last
means possible. Conversely, the lack of use of either option, if the court
believes that there was time and opportunity to do so, will work against the
defendant.
--
Bob Woolley
St. Paul, MN
[EMAIL PROTECTED]
"Love of one's neighbor, of the nation, and of humanity imposes upon
everyone the obligation to defend oneself and to resist evil constantly,
at all times, and in all things."
-- Tomas Masaryk
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