Warning shot fired after road rage incident

[DaveTN]

Because he wasn't in fear for his life when he fired.  If he was truly in fear he would have shot to kill.  The law is pretty clear you can only fire your weapon if you feel your life IS in danger.  If you are firing a warning shot your life is clearly not in danger.
 
Thanks
Robert

That’s not correct. If you are justified in killing someone, you are justified in exhausting all other means available to you before doing that. Plenty of cops have fired warning shots; even in departments where it was a violation of department policy.

Just because he was cited doesn’t mean he will be charged. I suspect that charge will be dropped. The DA will have a hard timer prosecuting the other guy for aggravated assault if they claim the guy with the gun was not in fear for his safety. Edited November 6, 2015 by DaveTN

[East_TN_Patriot]

I have always understood the law to be that you are not to fire warning shots because any discharge of a firearm is a use of deadly force due to the potential for serious injury or death.  When it comes to shooting into the ground, this is highly unlikely to hurt anyone, but the legal logic still remains that you don't discharge your firearm unless you are doing so for the purpose of using it specifically to fend off a threat to your life.  That traditional legal logic that you don't use your firearm unless it is absolutely essential to defend your life is likely what motivated the citation, especially since it was a densely populated area where a stray round or ricochet could hit a bystander.  This was common practice when I was a LEO in both Kentucky and Florida.  If you are in enough fear that you need to use deadly force, you use it against the attacker, not the ground or the air.  

 

Now, if it were me in that particular situation, I'd take a citation any day over having to live with the fact that I had to kill someone even if it were justified.  If I can cease the threat without shooting someone, that's a win in my book.  Ultimately, it's the view of the judge and/or jurors who will ultimately decide his fate.  My prediction is that he will likely go to court, explain it to the judge/jury, and have the charges dismissed, or as DaveTN said, the prosecutor may drop the charges before it gets that far.  

Edited November 6, 2015 by East_TN_Patriot

[DWARREN123]

Yes, if you know someone is following you go to the local police station or drive around and call the police. Do not take the crazy home with you.

[Oh Shoot]

I have always understood the law to be that you are not to fire warning shots because any discharge of a firearm is a use of deadly force due to the potential for serious injury or death....

 

Again, I post definition from TCA:

 

 "Deadly force" means force that is intended or known by the defendant to cause or, in the manner of its use or intended use, is capable of causing death or serious bodily injury.

 

I can see no way a warning shot rises to that standard. No intent and manner/intended use not capable. Even if some long odds happened and guy was hit with a ricochet from a rock in the ground or something, still can't see it rising to that standard -- same as if it hit an innocent bystander, it raises the possible stakes for culpability on both criminal and civil levels, but not because one applied deadly force.

 

For example, even if an assault results in serious bodily injury or death, it remains aggravated assault unless deadly force as defined were "intended or known". That's the difference between assault and homicide or attempted homicide. There's also behavior, including that with a firearm, that would fit under reckless endangerment. Hell, even shooting into an occupied dwelling can be "just" reckless endangerment unless I guess it can be shown that the shooter was able to draw an actual bead on a person or something.

 

Maybe a criminal lawyer will disagree, maybe they would disagree among themselves which is not uncommon either, dunno.

 

- OS

Edited November 6, 2015 by Oh Shoot

[bronco302]

I have always understood the law to be that you are not to fire warning shots because any discharge of a firearm is a use of deadly force due to the potential for serious injury or death.  When it comes to shooting into the ground, this is highly unlikely to hurt anyone, but the legal logic still remains that you don't discharge your firearm unless you are doing so for the purpose of using it specifically to fend off a threat to your life.  That traditional legal logic that you don't use your firearm unless it is absolutely essential to defend your life is likely what motivated the citation, especially since it was a densely populated area where a stray round or ricochet could hit a bystander.  This was common practice when I was a LEO in both Kentucky and Florida.  If you are in enough fear that you need to use deadly force, you use it against the attacker, not the ground or the air.  
 
Now, if it were me in that particular situation, I'd take a citation any day over having to live with the fact that I had to kill someone even if it were justified.  If I can cease the threat without shooting someone, that's a win in my book.  Ultimately, it's the view of the judge and/or jurors who will ultimately decide his fate.  My prediction is that he will likely go to court, explain it to the judge/jury, and have the charges dismissed, or as DaveTN said, the prosecutor may drop the charges before it gets that far.

Don't forget Tennessee includes fear of serious bodily injury also not just life. I figure a guy coming at me on my property with a club means me serious bodily injury.

Joe W.

[FTE]

Logic.

You guys keep using that word.

Here illogical to me: a guy, apparently so in fear for his life, discharges a firearm IN A NEIGHBORHOOD, but then stands there and continues to argue with this life threatening man until the cops arrive.

Sounds more like a couple of bubbas that couldn't back down.


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[Oh Shoot]

Logic.

You guys keep using that word.

Here illogical to me: a guy, apparently so in fear for his life, discharges a firearm IN A NEIGHBORHOOD, but then stands there and continues to argue with this life threatening man until the cops arrive.

Sounds more like a couple of bubbas that couldn't back down.

 

The perp was drunkernhell ... sounds to me the guy with the gun showed enough restraint to get the Nobel Peace Prize.

 

- OS

[chances R]

.....and maybe it was the perps lucky day, the good guy should say he was so shook up that he simply missed with the shot. That may have sobered up the attacker and the threat ceased. Best result for both parties.

[FTE]

The perp was drunkernhell ... sounds to me the guy with the gun showed enough restraint to get the Nobel Peace Prize.

- OS

Nope. Restraint wild have been calling the police from a secure location. Not shooting the ground and staying in the guy's face till the cops showed up. Bubbas......


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[Oh Shoot]

Nope. Restraint wild have been calling the police from a secure location. Not shooting the ground and staying in the guy's face till the cops showed up. Bubbas......

 

Some are not inclined to flee from their own property.  You can reverse quarterback the whole thing from first contact, and we don't even know if the guy knew he was being followed home -- but either way, once the guy was at home, I can certainly empathize with his standing his ground myself.

 

- OS

Edited November 7, 2015 by Oh Shoot

[TMF]

Nope. Restraint wild have been calling the police from a secure location. Not shooting the ground and staying in the guy's face till the cops showed up. Bubbas......


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On my property I'm not going to turn my back or hide inside while someone is out there who has made it clear his intent to do me harm. I want him where I can see him and shoot him if decides to make good on his threat. I know enough to know that aggressors are emboldened by their victims fleeing.

I'll not fault the victim here. He was on his property where he had a right to be. The aggressor could have ended it by simply leaving and moving on. The victim did that by going to his own dwelling. Once there, it changes the calculus of the scenario. The victim would not have been in the wrong to shoot this guy in the face. I would not have shown such restraint.


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[TrickyNicky]

Nope. Restraint wild have been calling the police from a secure location. Not shooting the ground and staying in the guy's face till the cops showed up. Bubbas......


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[URL=http://s1074.photobucket.com/user/TrickyNickyII/media/A093D6A2-B0D4-46A1-9840-16518F340E48-742-000000B4447E5F92.jpg.html][/URL]

[TMF]

Ah, to be independently wealthy so as to have time to focus on making this dream a reality.


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[Spots]

Nope. Restraint wild have been calling the police from a secure location. Not shooting the ground and staying in the guy's face till the cops showed up. Bubbas......


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I'll be damned if I'll turn and run on my own property. There wouldn't have been a warning shot though. You have a club in your hand and threaten me I'm shooting your ass. I'd rather be judged by 12 than carried by 6.

Sent from behind the anvil

[conn_air7]

Yep, anyone in this circumstance should be in reasonable fear for their life. If someone follows you home, then comes at you on your property with a bat, chances are he isn't there because he wants to toss the baseball around. If the aggressor wasn't deterred after the victim pulled out a handgun, the next reasonable step would be shooting him. Understanding that most people would do anything to avoid killing another human being, firing a warning shot into the ground would be the next "reasonable" step to avoid taking someone's life. Whoever is responsible for recommending charges and filing them is an idiot. Cases like this only encourage people to kill in self defense when a completely acceptable option to avoid that exists.

I'm assuming the guy with the bat didn't take the victim seriously until he fired the shot.


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Couldn't have said it any better myself. Sometimes it's worth being in a little trouble with the law opposed to losing your life because you were worried about law enforcement "punishment."


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[conn_air7]

A second thought: The world we live in is just sad. They guy got cut off or had a close call and finds it necessary to threaten someone's well being over that? People are too sensitive, if getting your feelings hurt leads to this, you've got your own set of issues.


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[K191145]

All we can do is form our opinion on what we have heard or read so far, until there's another side to this story I have to say the guy (potential victim), did a good thing by giving the rager a chance to live and sober up to contemplate what "almost" happened, like he be dead instead of alive. Popping a handgun round in the ground? Unless you hit an angled piece of granite it's not really going anywhere. The Rager ought to thank him later on for sparing his life, at least his momma should thank him.

[Bill4282]

Force escalation- use as much force as necessary to stop the threat. Should have shot him in the leg; if he kept coming, center mass. Period.

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[K191145]

 use as much force as necessary to stop the threat. 

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He did.

[FTE]

I'll be damned if I'll turn and run on my own property. There wouldn't have been a warning shot though. You have a club in your hand and threaten me I'm shooting your ass. I'd rather be judged by 12 than carried by 6.

Sent from behind the anvil

I'm guessing this is exactly what happened. Both bowed up. Neither smart enough to call police and back down.


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[FTE]

On my property I'm not going to turn my back or hide inside while someone is out there who has made it clear his intent to do me harm. I want him where I can see him and shoot him if decides to make good on his threat. I know enough to know that aggressors are emboldened by their victims fleeing.

I'll not fault the victim here. He was on his property where he had a right to be. The aggressor could have ended it by simply leaving and moving on. The victim did that by going to his own dwelling. Once there, it changes the calculus of the scenario. The victim would not have been in the wrong to shoot this guy in the face. I would not have shown such restraint.


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Of course you're right. Retreating to a fortified position couldn't be nearly as smart as standing in the open with an unknown assailant. ;)


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[East_TN_Patriot]

Again, I post definition from TCA:

 

 "Deadly force" means force that is intended or known by the defendant to cause or, in the manner of its use or intended use, is capable of causing death or serious bodily injury.

 

I can see no way a warning shot rises to that standard. No intent and manner/intended use not capable. Even if some long odds happened and guy was hit with a ricochet from a rock in the ground or something, still can't see it rising to that standard -- same as if it hit an innocent bystander, it raises the possible stakes for culpability on both criminal and civil levels, but not because one applied deadly force.

 

For example, even if an assault results in serious bodily injury or death, it remains aggravated assault unless deadly force as defined were "intended or known". That's the difference between assault and homicide or attempted homicide. There's also behavior, including that with a firearm, that would fit under reckless endangerment. Hell, even shooting into an occupied dwelling can be "just" reckless endangerment unless I guess it can be shown that the shooter was able to draw an actual bead on a person or something.

 

Maybe a criminal lawyer will disagree, maybe they would disagree among themselves which is not uncommon either, dunno.

 

- OS

Yes, but in my experience and training (not in Tennessee) the discharge of a firearm in retaliation of a threat is considered deadly force, warning shot or not.  This is why LEOs are specifically trained to not fire warning shots.  

It goes back to my point about a projectile being fired in the general direction of another human being.  Let's consider this: what if he intended it as a warning shot but inadvertently hit the individual or a bystander and killed them?  In this case it appears that the person armed with the bat did not pose an imminent threat of death or serious physical injury, thus the discharge of a firearm was not lawfully justified, warning shot or not.  Assuming that is a correct statement, the guy is lucky he wasn't charged with aggravated assault.  

Edited November 7, 2015 by East_TN_Patriot

[East_TN_Patriot]

Force escalation- use as much force as necessary to stop the threat. Should have shot him in the leg; if he kept coming, center mass. Period.

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No way.  He misses the leg and there is a loose round unaccounted for and the threat isn't stopped.  If you need to use deadly force to stop a threat you use it the most effective way possible.  There is a reason no firearms training teaching shooting for any target area except center mass or head shots when the torso is behind cover.

Edited November 7, 2015 by East_TN_Patriot

[Oh Shoot]

... In this case it appears that the person armed with the bat did not pose an imminent threat of death or serious physical injury, thus the discharge of a firearm was not lawfully justified, warning shot or not.  Assuming that is a correct statement, the guy is lucky he wasn't charged with aggravated assault.  

 

Seems obvious to me the local DA conceded that he was justified in firing the shot, or would have indeed charged him with a state charge.

 

I can't explain the chicken :poop: local charge, except that it seems to indicate that the DA wanted to charge him with whatever he could and that's the best he could cough up. Then again, this may have just been the police chief's initial charge or something that same night, no idea how this stuff works on that local level. Perhaps this charge will be dropped, perhaps a state charge will still be applied, who knows?

 

But it's fairly moot, since the aggressor was charged with aggravated assault, which by definition not only entails behavior that "intentionally or knowingly causes another to reasonably fear imminent bodily injury" but also included "use or display of a deadly weapon" -- so if that charge remains, seems that alone could be seen as justification for deadly force on the part of the defender, even though I contend he did not use deadly force, as it simply doesn't rise to the definition of such.

 

Yes, but in my experience and training (not in Tennessee) the discharge of a firearm in retaliation of a threat is considered deadly force, warning shot or not. 

 

Read the legal definition of deadly force in Tennessee law again.
 

 

This is why LEOs are specifically trained to not fire warning shots.

 

C'mon, police departments are uber conscious of liability, and that's the main reason for that.

 

- OS

Edited November 7, 2015 by Oh Shoot

[TrickyNicky]

Force escalation- use as much force as necessary to stop the threat. Should have shot him in the leg; if he kept coming, center mass. Period.

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Thats a great idea, in theory. In reality, a leg shot, assuming one can hit it in the first place, can be fatal, more so than even a center of mass shot. The femoral artery takes up a big chunk of space on a leg, especially for a skinny guy. 

 

There was a really great article in Police magazine several years ago detailing an officer involved shooting in NYC IIRC. A police officer was working a patrol in (again, IIRC) Times square when she was attacked by a man with a knife. Lacking time and distance, she  drew, and while bringing her gun up, shot him right in the hips. It went on to say that while it wasn't intentional targeting, it was a move that likely saved her life as the attacker was very close to striking distance. Any number of center of mass shots may not have stopped him from committing his act, but he was simply physically unable to continue moving forward with an instantly shattered hip.

 

 

Im not suggesting trying for a hip shot, or any other, but I think the incident clearly shows that not all 'ideal' shots always are, and some less than idea ones can prove to be just the ticket.