wtae.com reports a Pennsylvania home owner shot and killed a Turkey Day home invader: one Elijah J. Malanosky. Absent any complicating details (there are always complicating details), it looks like a righteous shoot. Unfortunately, the homeowner’s better half made what could be a fatal mistake. Legally speaking . . .

The wife told Channel 4 Action News reporter Ashlie Hardway that she had gone to the living room couch because she couldn’t sleep, and sometime during the night, she heard an unusual-sounding bark from her dog and saw a man trying to break in.

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, who police identified as Elijah J. Malanosky, 30, of Cokeburg [above].

Rule Number One after surviving a defensive shooting: STFU. My first permit class instructor was a prosecutor for 12 years and a defense attorney for the past 30 or so. He said that 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 same holds true for any and every member of your household. 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.” You may—should remind them of this fact in the presence of the police.

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.”

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 to his next job. Your warning shot can be his political fodder. “But, but, but …” I hear you sputter, “how can not shooting someone be a problem?”

In many jurisdictions just shooting a weapon is considered using deadly force. I know of one gentleman 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.

In general, the use of deadly force is only legal when you are in immediate fear of death or great bodily harm. The prosecutor can argue that any gun owner who had time enough to fire a warning shot was not in immediate danger. Therefore, he or she wasn’t justified in using deadly force.

Does that mean you should only shoot to kill? That’s not a choice anyone can make for you. But let’s say you do fire a warning shot. What then? That’s where your lawyer comes in . . .

When taking your deposition, your brief will help clarify your memory of the event and put the initial shot or shots in their proper context. He can explain to the cops and/or DA that his (you) client fired one shot which missed the assailant, who continued to advance. And so you fired again, striking the assailant.

True story. If you fired a warning shot then your first shot did miss. 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’s not lying to the police. Remember: Martha Stewart didn’t go down for insider trading. They got her for lying to the police.

Don’t make it easy for second-guessing anti-gun prosecutors, politicians and press 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.” Consider this your warning shot. And theirs.

22 Responses to Turkey Shoot Complicated by Warning Shot

  1. I agree with GS; no warning shots. Aside from the legalities, they are a bad idea from a tactical point of view. If you have a semi auto, it could jam on your W/S leaving you defenseless. The W/S tells your attacker where you are which is not a good thing. The warning shot could hit something that you didn’t intend to hit like your neighbors house or worse, your neighbor.

    Another point if I may. In a DGU, you are not looking to kill your attacker; rather, you are looking to stop the threat. You are not taking a “kill shot” you are defending yourself to eliminate the imminent threat of death or grievous bodily harm that your attacker presents.

  2. I would agree with shutting up in front of the cops.While TV is typically a bad example for such a subject,there was a case in the First 48 (Live by the Gun is the title if I remember ) where a criminal stalked a guy and hid in the back of a neighboring car.When the victim got in his car the assailant shot at the victim,who ran back to his apartment and got his own weapon to return fire.The attacker died in the street.

    The victim never said he killed the guy.In fact Miami PD told the victim that self defense was a legal justification for defending yourself,and the victim still said he never touched a gun or shot the guy.The police took stock of the evidence showing that the attacker had knit gloves on -in Miami-and how the bullet trajectories meant the victim had been attacked first.

    Bottom line;the victim lied and maintained he never shot anyone and still wasn’t charged.No lawyer was involved either.Bottom line,if it happens to me I’m shutting up ,lawyering up,and letting the evidence at the scene speak for itself.If a dirtbag invades your home and the cops see that the shooter-you- has a clean record and that the dead guy has a rap sheet and drug convictions and whatnot with a knife in his pocket and a ski mask on the picture should be clear to anyone how things happened . You saying anything is at best redundant,and at worst self incriminating.

  3. I have heard the advise to shut up and call your lawyer many times over many years. What I have never seen is an article on how to choose a lawyer. It would seem to me that sitting in jail would be an inconvenient place to perform research on lawyer selection.

    • Yes…the shooting industry loves to trumpet what you should do with police, but the legal industry does an abysmal job of soliciting themselves for just such a situation.

      NRA-ILA is pretty shiatty about it also. In state of TN where I live Nashville is the closest on the list….Chris Cox himself lives just a couple of miles from me.

      The rule is always to have a number of a trusted lawyer….If they are getting bucketloads of money then why aren’t they advertising their services?

      • For those of us in PA, there’s a website called “the shooter’s bar” that lists pro 2a lawyers in the state.

        Keep in mind that the DA won’t prosecute unless he thinks he can win– so if it’s a good shoot, there’s a good chance it won’t go to trial and it won’t matter if you’ve got a good lawyer. If I understand correctly, criminal defense lawyers make most of their money not by defending good guys, but by making sure bad guys get a fair trial. I figure that’s why you don’t see many lawyers advertising directly to our crowd- no money in it.

    • Once you are in jail is definitely not the time to be researching lawyers. Go to your local gun boards (or even national ones for that matter) and ask around. Once you have some names and numbers, call and check them out. Most lawyers offices are willing to give you a few minutes for this sort of research.
      Another way is to ask friends. If they don’t know anyone they may well know someone who knows someone. Then, once you have some names and numbers put them on your cell-phone, and don’t rely on trying to remember a name you heard 5 years ago; I have 4 DGU type lawyers on my contact list (and on my wife’s and stepdaughter’s, both of whom have instructions to call if TS ever HTF) labelled Lawyer Tom Smith, Lawyer Bob Jones, etc. (I also have my doctors labelled the same way).

      Amusing anecdote; shortly after permit to carry passed in MN I was at a Gun Owners’ Civil Rights Alliance meeting and heard the following interchange:
      J: So if I shoot someone and call you at 3AM from the Hennepin County Jail you’ll come bail me out?
      Lawyer: Yes I will, but don’t expect me to hold your [expletive rhyming with trucking] hand.
      J: If I’m calling you from HCJ at 3AM, demonstrations of physical affection will be what I’m trying to avoid!

  4. This act of justifiable self-defense happened 20 minutes from where I live. I was shocked when I watched the news and heard that the authorities were considering pressing charges against the home owner. Charges? Are they serious? The very bad man had broken into the f***ing house!! Why is this such a big issue? I don’t think I’ll ever understand…..

  5. – 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.” – you could add in – ‘I want him/her arrested’ as to ascertain that you will be pressing charges against the intruder.

    • Yeah, my CCW instructor wants “I want that man/woman arrested” included in your statement to the police after a DGU.

      Basically, it goes” Fear for life, arrest that person, I want my lawyer, I do not consent to a search.”

    • And when you go on trial the prosecution will call yor instructor, and ask him what he told you to say. Then it’ll be “You said you were in fear for your life because your instructor said to, not because you were really frightened.” Canned responses backfire.

      And you won’t be “pressing charges.” You may make a report, but only the DA can file charges. Of course you can file a civil lawsuit, except he’s the one injured and even if you win he won’t have anything to pay the judgement with.

  6. Never ever consent to a search, but know that police are allowed to search an actual crime scene without a warrant. The actual crime scene does not include other parts of your house remote from the area where the BG met his maker. It does include the break-in area, the area between the break-in and his body (assuming you’ve been practicing your marksmanship) and the area around his corpse. It may or may not include the area from which you shot.

    Personally, I would not police my brass, as that might constitute disturbing the crime scene and structuring the evidence. That’s indictable on it’s own, and may lead a prosecutor to distrust your side of the story. You should check with an attorney in your own jurisdiction to get a read on that. Ask your lawyer about that before, not after, you shoot the BG. Forewarned is forearmed. So to speak.

  7. My CCW instructor recommended that we retain a law firm that specializes in 2a and CHL if we are going to conceal carry. I haven’t signed up for one yet, and really don’t know how good they are, or where exactly to turn. Some of these groups supposedly have lawyers in all states and the yearly fee will get you as far as an arraignment hearing without costing additional money, if it should come to that. I just recently got my CHL, and would love to see more discussion about legal options.

  8. If you successfully defend yourself you might be the last man standing holding a smoking gun with your attacker lying on the ground in a pool of blood. By itself that doesn’t tell what happened. In fact, it looks like something it’s not. You might need to explain what happened. Just saying you want an attorney, don’t consent to a search, etc. will get you arrested on the spot. Then you lose all control over how the evidence is collected and evaluated. Not good.

    This is a deep subject which needs much more space and time to explore all the probable circumstances and how to deal with them.

    • TeeJaw, More people are in jail than not because they tried to explain their situation, rather than lawyer up. Refusing to consent to search DOES NOT give probable cause for a search!!! Requesting an attorney IS YOUR RIGHT!!! and SHOULD be done before answering ANY questions beyond Identifying yourself. You are likely to be arrested in this type situation. Best to not convict yourself without a trial by explaining your actions.

    • Agree with Brad on this one. Never explain anything to the po-po after a DGU. STFU and call your attorney who should be on speed dial on your home and cell phones and then, you should STFU some more.

  9. Counselling murderers again.

    “In general, the use of deadly force is only legal when you are in immediate fear of death or great bodily harm. The prosecutor can argue that any gun owner who had time enough to fire a warning shot was not in immediate danger. Therefore, he or she wasn’t justified in using deadly force.”

    • I don’t think “murderer” is an appropriate term for someone who defended themselves against death or grievous bodily ham.

  10. For what it’s worth, I’ve always thought that immediately after the shooting when having dialed 911, the first thing to ask for would be an ambulance. After all, having a recording in court of the first thing requested during the original 911 call being the defenders want of medical attention for the intruder, would certainly give a level of plausible deniability to any misguided accusation of the defender being “cold blooded”.

Leave a Reply

Your email address will not be published. Required fields are marked *