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Many posters on the Internets spout the truism that warning shots are a bad idea because they can be taken as evidence that the shooter didn’t consider the threat in question to be deadly. Otherwise, they would have aimed for center mass instead of firing into the air (Biden style) or the ground. But in a recent case from Maryland, a prosecutor came to the opposite conclusion . . .

From cecildaily.com:

“He did everything he could have done. Maryland law says the person must first retreat if possible. He retreated as far as he could. He was backed up into a corner of his deck. He had nowhere else to go,” (Cecil County State’s Attorney Ellis) Rollins said.

The rival kept advancing, even after the warning shot, prosecutors said. Even so, prosecutors added, the homeowner still exercised some restraint.

The case also illustrates the principle of disparity of force. That’s the principle that even if your opponents are not armed, as long as there is sufficient difference in the level of force available to the participants that a reasonable person would fear for their life, that can be considered a deadly threat. Large differences in physical size and age are common factors, as are multiple assailants.

Rollins also pointed out that the homeowner was “outnumbered three-to-one” during the incident.

“One of the men who had come to the house with the woman was much bigger than (the homeowner). He was a big guy, over 6-feet tall and weighing about 300 pounds.”

The prosecutor called the case “…a classic case of self-defense.” An important point in the case was that even the three aggressors agreed on what essentially happened.

For the most part, even the versions given by the three who had showed up at the shooter’s home matched the account given by the shooter.

And even when he fired, the shooter fired to wound, another thing that many caution against.

When the man failed to heed that warning shot, the homeowner fired a bullet into the man’s leg — ending the escalating situation, prosecutors reported.

No prosecutor is bound by any other prosecutor’s judgements. So the outcome of this situation shouldn’t be taken as a precedent. But at least in this case, this prosecutor found the firing of a warning shot to be evidence of restraint, not reckless endangerment or another crime.

One last observation. In spite of the clear explanation of the prosecutor, the headline writer still felt compelled to put self defense in scare quotes: 

State’s Attorney rules ‘self-defense’ in Elkton-area shooting

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.

Gun Watch

29 Responses to Defensive Gun Use of the Day: Successful Warning Shot Edition

  1. I realize disparity of size in a court case can affect the outcome, but it really shouldn’t. If a 4’5″ woman is trying to rob you (potentially of your life) with a knife, worrying about the legal proceedings to follow doesn’t make sense.

    Obviously each situation is different and this guy thought a warning shot was appropriate. If there is enough distance between you and the target in question, perhaps a warning shot to get them to stop approaching you is smart. But I always scrutinize what circumstances it makes sense in, and I haven’t thought of a whole lot.

    • “I realize disparity of size in a court case can affect the outcome, but it really shouldn’t. If a 4’5″ woman is trying to rob you (potentially of your life) with a knife, worrying about the legal proceedings to follow doesn’t make sense.”

      It looks like you are over-thinking “disparity of force” a little bit. In the case you describe, the knife would be the key factor, not the size of the assailant.

      The point of disparity of force is that it CAN be taken into account…there’s no ‘bright line rule’ that says “if this, then that” in court cases.

      The bottom line is can you articulate that ability, opportunity and jeopardy existed in terms of imminent threat of death? Saying, “He was unarmed, but he was 2 ft taller than me” goes to that, but does not prove it.

    • IANAL, but the way it has always been explained to me is that the presence of the knife in this instance would be the factor that creates the disparity of force. To further clarify, disparity of force is not limited to considerations of physical size, but could extend to the number of assailants, the presence of a weapon, martial arts training, or other factors.

  2. I really don’t get the logic that one should have to retreat from the threat from a criminal or an aggressor? Seems like the BGs have more rights than a law abiding person trying to protect themselves, their home, possessions or their families ?

    • One does not always have to retreat at a threat from a criminal or an aggressor. However, the laws of many states provide that when it’s possible to retreat without putting the defender at greater risk, the defender is required to retreat before using lethal force (as opposed to mere physical force). This requirement goes back to English common law.

      SYG and Castle Doctrine laws are exceptions to the general rule that safe retreat is better than a dead body.

      Killing somebody is a legal option when necessary for self-defense, but in many cases it should not be the first and only option.

    • Duty to retreat sounds good in theory, because it supposedly discourages a “shoot as a first resort” mentality. However, these things occur suddenly and move rapidly in real life. Such a nuanced evaluation of options is an ability of and luxury available to only safe and secure judges, juries and prosecutors many months after the event, with many hours at hand to reflect.

      In reality, it just gives those of meek temperaments and weak minds the opportunity to second guess you in court and hold you criminally liable to an impractical standard.

  3. Not so long on youtube, i came across a commenter convinced that because the british cops who handled the beheading case a few years ago, that made a sufficient case for leg shots. My answer for both cases is that self defense isn’t based on anecdotes, it’s based on hard facts. just because a technique works in a specific case doesn’t mean it applies to mine, by that logic, because it worked at the Fairchild shooting, I should try for 70 yard headshots with my M9.

      • My favorite, actually heard during an active shooter drill Q&A at a university, is “Well, do you really have to kill the shooter? Can’t you just shoot his gun out of his hands?”

        • Which begs the question what then? Are they just going to bow in surrender to your superior marksmanship? Suppose you do shoot them in the extremity. From a first responder perspective, you’d typically be expected to treat some one who’s pissed off and quite possibly not doing their best imitation of the Black Knight. All it boils down to is a less effective, more dangerous method of pain compliance techniques.

  4. We’re talking about the Communist Peoples’ Republic of Maryland here! Why are we drawing general conclusions about prosecutorial discretion based on what happens there? You might as well be talking about NY, NJ, DC or Iran for that matter. I remember many years ago an elderly lady in MA retreated into her basement to get away from an intruder. She shot the BG coming down the stairs with her late husband’s .22 rifle. She was convicted of a felony. The state said that there was a door to the outside in the basement she could have gotten out, so she did not retreat as far as she could. You get states like that, nothing that happens there with self-defense makes any sense.

    • I remember many years ago an elderly lady in MA retreated into her basement to get away from an intruder.

      Are you sure? MA is a Castle Doctrine state, so no retreat should have been required.

      Massachusetts General Laws, Chapter 278, Section 8(a): In the prosecution of a person who is an occupant of a dwelling charged with killing or injuring one who was unlawfully in said dwelling, it shall be a defense that the occupant was in his dwelling at the time of the offense and that he acted in the reasonable belief that the person unlawfully in said dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall be no duty on said occupant to retreat from such person unlawfully in said dwelling.

  5. Maryland has Castle Doctrine for the home. The overwhelmingly liberal state assembly voted and passed the law a few years ago. If you are in public however you still have to retreat.

    The owner could have shot to kill way before he was put in the awkward situation on the deck.

    • Maryland has sort of a Castle Doctrine for the home.

      FIFY. I’ll let a Maryland Bar member explain it further.

      I just hope to God I never have to rely on that defense (like that poor AF member in Pasedena last year).

  6. Do what you feel you have to do. I wouldn’t shoot for the leg, myself, but I’m glad he defended himself successfully.

  7. “…One of the men who had come to the house…..was much bigger than (the homeowner). He was a big guy, over 6-feet tall and weighing about 300 pounds…”

    Disparity of size…….. Hmmmm, who else do we know that was over 6ft and 300 lbs?

  8. A little something about me. I have a short fuse. I’m not ashamed of it. I think anger is as natural as any other emotion. The problem is that so many idiots get in my face and provoke me. That being said, since I have been carrying a gun, I even look at road rage with a different perspective. I don’t snap back at the idiots. I understand the escalation that can occur and I understand that I will wind up killing the other person if it goes that far. I am so lovable now that I pack heat. Don’t believe me? Ask the guys that used to hate me.

  9. I think he’s just lucky, and (unfortunately) crippled by Maryland’s stupid laws. In my state, once they crossed the line where self-defense was justified, I would’ve just fired until they either ran or fell over. And no regrets. I don’t want to harm anyone, but I also don’t want to be beat up and killed, so they made their choice once they crossed that line.

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