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.