THREATENING DEADLY FORCE : MUSINGS ON “BRANDISHING” AND “WARNING” SHOTS

I “learned” the following while browsing the internet:

  • In order to scare off a home intruder and alert neighbors to summon the police, one should go out to a balcony and fire a double-barreled shotgun into the air.  WRONG: Likely tactical error abandoning a safer ensconced defensive position, misuse of limited ammunition supply, endangers others, and probably an unlawful discharge.
  • Florida enacted a law to encourage and make “warning” shots (those intended to instill fear and obtain immediate compliance, but taken in a way so as to be harmless to any person) legal. WRONG:  The law changes were not directed at “warning” shots.   They were intended to clarify that threatening the use of force in defense of person and property is lawful under circumstances comparable to when the actual use of force would be lawful.   Florida’s “immunity” provision, those incorporating the SYG concept, and related procedural provisions, were also amended with the intent to conform them.   See what happened in Kansas, on this issue, discussed here and here.  (The law was changed, Utah law is another to compare).   All that said, something that did NOT change — shooting a firearm in the direction of a person in Florida was and remains the use of deadly force, regardless of intent. (I did not do research, but I suspect that is true in nearly all states).  Also unchanged is the absence of a legal requirement to warn someone you are armed, or are about to or will use deadly force.
  • You should only draw/display (often referred to as “brandish”) your handgun after you have already decided to shoot, as doing so without shooting is unwise escalation, will likely result in the gun being taken away and used on you, or is unlawful.  WRONG:  Poorly thought out absolute and not what the evidence suggests happens in the real world.  But yes: threatening display and pointing of a gun engender serious legal consequences even when no shots are fired, and;  sometimes continued concealment, delaying the draw (to assess without revealing you are armed, accomplish something else with hands, and/or take cover), and then shooting upon firearm presentation, will be the best tactic.
  • A “warning” shot before actually shooting someone is preferable and legally permissible.  WRONG: Mistaken political correctness at the likely cost of increased peril.  Except (perhaps) in the retaking of escaping prisoners, to fend off a dangerous “protected” species threatening at distance, or certain maritime encounters, a warning shot is so universally frowned upon it likely cannot be “justified” to a prosecutor, judge, and jury.  But, Bob Dylan might just be correct, the times they are (maybe) a-changin’.  For better or worse, see how a recent Florida “warning” shot incident is described here.  Here’s another, a New Hampshire no prosecution report on a self-defense shooting.  The report favorably notes that a warning shot was first taken.

“Brandishing” (a/k/a Improper Exhibition)

LEOs. Deployment of the duty handgun by an LEO, whether merely unholstering, or gun-pointing at a person, has become so common in 21st century policing it is under state law almost always a legal nonevent.  It is accepted because an LEO acts “under color of law” sworn to protect the public peace, “officer safety” is of high value, and unintended LEO discharges causing serious injury are very rare.  There are however limits imposed under the Fourth Amendment.

Federal “excessive force” ( 42 U.S.C. § 1983) case law addresses the parameters of firearm threatening (incidents now playing out include a nonsensical mass roundup of motorists and pedestrians and related gun pointing in Aurora, Colorado, see here, and the similar indiscriminate pointing of weapons during the LA/California Dorner manhunt, see here).  There are Federal cases discussing what is acceptable and what is not.  Of note, cases impose limitations on pointing guns during the execution of search warrants and investigative stops.  LEOs and trainers — see this often cited case involving the pointing of an SMG (during the execution of a search warrant in an altered VIN investigation), an AELE two-part paper (here and here), and a second paper (here, specifically on Terry stops).  Generally speaking, someone is not to be held at gunpoint when they are compliant and present no danger.  Courts do not find constitutional violations for gun-pointing if there exists a genuine perceived threat of danger or violence to an LEO.  (The Graham v. Connor standard and factors are part of the analysis).

Non-sworn. For the non-sworn, state law assault with a weapon and brandishing (some states have a stand alone provision) crimes come into play from the pointing or other threatening display of a firearm.  The former is likely a higher grade felony; the latter a lower grade felony or higher grade misdemeanor.  Justification is a defense. Thus, statistics strongly reflect handguns are drawn/pointed at others quite often by the non-sworn without resulting criminal charges.  Reputable research suggests such occurs hundreds of thousands of times or more annually, with some form of brandishing usually ending escalating confrontations or criminal acts without shots fired.  To see Cato Institute materials on defensive firearm usage, including shootings and brandishing, click on the image:

                                         

Statute and case law will determine whether/when threatening deadly force (by brandishing or gunpoint) is a privileged, lawful act.  One should first check the justified use of force law on threatening the use of force.  The precise language of the brandishing statute is also important; it is possible the privilege is only for self-defense, not defense of others or property. For example, in Florida and Nevada, the statute excepts “necessary self defense.” The “reasonable belief” language usually found in self-defense statutes, is absent.  Another example of similar import is Virginia, where “excusable or justifiable self-defense” is excepted.  In contrast, in Arizona, all forms of “defensive display” are privileged under a model, uncomplicated statute.  In Montana, an oral warning of firearm possession, drawing, and presentment are specifically mentioned.  A state law may specifically allow the justification defense to a brandishing charge for the defense of others; for example, Wisconsin.  It seems to me that newly-minted defensive use of force statutes that permit “threatening” ought to be interpreted to trump a stand alone brandishing type charge.

“Warning” Shots

It has been settled for many decades that a “warning” shot is a very bad idea in both the LEO (against agency policy, endangers public, civil liability issues) and  non-sworn (civil and criminal liability issues) universes.  The issues presented include possible charges of assault,  attempted murder/manslaughter, and unlawful discharge.  Statutory language is again important.   If there is privilege to threaten the use of deadly force which negates the more serious charges, one would look next to unlawful discharge provisions.  Examples: in Florida, a person “lawfully defending life or property”  is excepted from the unlawful discharge statute.   Oregon law is similarly worded.  In Missouri, a “lawful act of defense” (defense of persons statute incorporated by reference) negates criminal culpability.  In Idaho, it appears a “warning” shot aimed at a person is specifically outlawed.  In some states the discharge statute is comprehensive and refers simply to “unlawful” use or discharge.  Exceptions to criminality based on self-defense, etc., must be found elsewhere in those states’ statutes or cases.  The language of a discharge statute may or may not be parallel to the state’s brandishing law.  There may also be differences for rural and urban settings, or for a shot taken in/on/from/into a residential property or vehicle or at an animal.  (Shooting at an animal is not ordinarily considered the use of deadly force).

I truly hope the recent focus on “warning” shots does not bestow general acceptance on them.  If we arrive at defensive use of force law which first inquires why no warning shot was taken, we have unnecessarily complicated the calculations of those who, in a split second, have to decide on life-saving/taking action.  Moving in that direction would also adversely affect the law concerning warnings/challenges which are now rarely if ever required of the non-sworn.  Such impositions are also contradictory to SYG no retreat principles. As Justice Holmes wrote for the Supreme Court in 1921: “Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him.”  Hopefully, the foolishness of why didn’t he/she just “shoot to wound” will not morph into something seemingly acceptable, but even worse — an imperative to take a “warning” shot.

Takeaway: Carefully read and compare your state statutes, case law, and standard form criminal jury instructions.   Learn from use of force trained lawyers licensed to practice in and familiar with criminal statutes and prosecutions in your state.  Avoid deadly encounters, but if you cannot, reject political correctness for what is tactically sound and legally correct.  Apply CAN-MAY-SHOULD-MUST paradigm with care and in good faith. Don’t SYG just because you CAN/MAYWhen you MUST shoot, shoot, don’t verbally threaten or brandish.    [Hat tip: Tuco. (June 24, 2014) RIP Eli Wallach].

[As to the recent Florida statute amendments, I would be remiss if I did not mention: The statutory changes are not a model of clarity.  New issues (most likely unintended by the legislature) have probably been created, upon which judges will likely differ.  Included are whether one can threaten deadly force in circumstances where only the actual use of non-deadly force would be permissible, and how the statute changes actually integrate with the so-called immunity, SYG, and aggressor provisions.  See the extensive concerns expressed by a well-known Florida firearms law attorney, here (go to his July 3, 2014, blog entry).  If I were asked to make a general observation on the state of Florida law from the MAY and SHOULD of my paradigm, I would say verbal threats to use deadly or non-deadly force remain viable, and that brandishing an unholstered handgun or pointing it at a person should be limited to responding to imminent threats of unlawful deadly force or to stop the imminent commission of a “forcible felony.”  As to “warning” shots, see the red emoticon at the top of this post ].

Disclaimer: No MSW post constitutes particularized legal advice, or creates an attorney-client relationship with a reader.

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About Steven Harris

Steve Harris is an experienced attorney (member of Florida Bar, 1979) who has represented federal agents and local LEOs in duty related matters. He has written and lectured about officer involved shootings, self-defense, and use of force law, including "Stand Your Ground." Steve has been a seasoned and active competitive handgun shooter for over 20 years.

8 thoughts on “THREATENING DEADLY FORCE : MUSINGS ON “BRANDISHING” AND “WARNING” SHOTS

  1. As of October 2012, one change that Florida did make was to decriminalize the unintentional/inadvertent brandishing of a concealed weapon (the item-on-a-high-shelf-at-Walmart scenario). This was the remainder of the “open carry” bill that was neutered.

    • “Brandishing” as discussed in the post is not an “unintentional/inadvertent” act.

      What you refer to is an exception to the Florida crime against open carry for someone who “briefly and openly” displays a firearm which had been lawfully concealed. That exception does not apply to display in a “threatening” manner (which “brandishing,” in or out of holster, normally is), unless in “necessary self defense.”

      Here are the two Florida statutes:
      790.10 Improper exhibition of dangerous weapons or firearms.—If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree . . . . . . .

      790.053 Open carrying of weapons.—
      (1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.

      Think about this – can an accidental and “careless” (but not threatening) display (like you described, assume the holster falls off the pants or the handgun falls out of the holster) be prosecuted under Fla. Stat. 790.10?

  2. I’m glad you mentioned the LEO angle. I strongly believe that coppers point guns at WAY too many people that we shouldn’t be pointing guns at.

    • Agreed, especially in the type interactions I mentioned. In 1984, I was seized at gunpoint three times by local and state police (while screaming “holster up, NOT Christopher Wilder”). I was terrified in the one case where I could see a finger on the trigger. Lucky for me I did not duck or take cover. But, it only takes one incident where an LEO doesn’t deploy the gun or shoot quickly enough and then guns routinely come out for “everyday” encounters similar to what ended tragically for that brother. (A future MSW post highlights a well-known example of that). Experienced trainers like you who see both sides of every issue are the best answer.

  3. “In order to scare off a home intruder and alert neighbors to summon the police, one should go out to a balcony and fire a double-barreled shotgun into the air.”

    You do realize that this is a reference to some advice Joe Biden gave when he was campaigning to ban Semi auto rifles? If you see this on the errornet, it is porvided in a completely tongue in cheek manner.

    • Yes I knew that. I was attempting to go a step beyond just pointing out the tactical idiocy of it. I did not see it widely discussed that Biden’s advice was actually cheering on criminal misconduct.

      • “Biden’s advice was actually cheering on criminal misconduct”

        This is true in so many areas.

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