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A Warning Shot about Self-Defense

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Suppose John is facing a deadly assault and fears that he will be killed or suffer great bodily harm. John has a firearm but, rather than shoot his assailant, he fires a warning shot. The shot goes awry, strikes John’s assailant, and kills him. May John rely on self-defense if charged with murder? The answer may be surprising.

John may not be able to rely on self-defense in this scenario. Under current North Carolina case law, his defense may be accident. Here’s why.

Focusing on the intended result. Generally, a person may use deadly force—that is, force likely to cause death or great bodily harm—if reasonably necessary to save himself from death or great bodily harm. See, e.g., State v. Pearson, 288 N.C. 34 (1975). Thus, in the above scenario, John would have the right to shoot and even kill his assailant if he met the other requirements for self-defense (for example, John wasn’t the aggressor).

One might assume from this principle that if faced with a deadly assault, a person could opt to use nondeadly force if the person thought that a lesser degree of force would be sufficient to end the threat. North Carolina decisions define nondeadly force as force neither intended nor likely to cause death or great bodily harm. See, e.g., State v. Pearson, 288 N.C. at 39. North Carolina decisions have also found that a warning shot may constitute nondeadly force. See State v. Whetstone, 212 N.C. App. 551, 558 n.4 (2011); State v. Polk, 29 N.C. App. 360 (1976). Thus, in the above scenario, one might conclude that John could rely on self-defense if he used non-deadly force to defend himself and unintentionally killed his assailant.

Since the mid-1990s, however, the North Carolina courts have tried to establish a firmer boundary between intentional and unintentional killings for purposes of self-defense. In various situations, they have held that a defendant who used nondeadly force and unintentionally killed could not rely on self-defense despite his claim that he was defending against a deadly assault. Thus, in addition to the warning shot scenario above, the courts have held that the defendant was not entitled to rely on self-defense based on evidence that he grabbed a gun from an assailant (or the assailant tried to grab the defendant’s gun) and in the ensuing struggle the gun inadvertently went off and killed the assailant. See, e.g., State v. Nicholson, 355 N.C. 1, 30–31 (2002) (warning shots); State v. Gray, 347 N.C. 143, 166–67 (1997) (gun struggle), overruled on other grounds, State v. Long, 354 N.C. 534 (2001); State v. Hinnant, ___ N.C. App. ___, 768 S.E.2d 317, 319–20 (2014) (warning shots); State v. Gaston, 229 N.C. App. 407 (2013) (gun struggle).

To make a long story short, these decisions rest on the phrasing of the first requirement for self-defense in murder cases. The requirement is often phrased as follows: The defendant must have believed in the need to kill to avoid death or great bodily injury. Focusing on the first part of this requirement, decisions have held that the defendant must literally “believe in the need to kill,” shown by an intent to kill or at least an intent to use deadly force. See also North Carolina Pattern Jury Instruction—Crim. 206.10 at p. 2 n.4 (June 2014). In other words, the evidence must show that the defendant intentionally shot at his assailant in self-defense. Under this approach, a defendant who uses nondeadly force, such as firing a warning shot or struggling over a gun without intending to fire it, is not entitled to claim self-defense even if he believes his actions will address the threat he is facing. Because he does not believe in the need to kill, his defense, if any, is accident, not self-defense.

It’s possible that the courts did not intend to impose such a blanket requirement. The courts may have rejected the defendant’s claim of self-defense in particular cases because they doubted that the defendant believed he was facing death or great bodily harm, which is also part of the “belief” requirement. Language from some cases suggests that the defendant’s perception of the threat against him is the critical inquiry for the “belief” requirement, not the method of force he used or the ultimate result. See State v. Richardson, 341 N.C. 585, 590 (1995); see also John Rubin, The Law of Self-Defense in North Carolina at 47–48 (UNC Sch. of Gov. 1996). The literal language of the “belief” requirement and cases applying it may not support this narrower focus, however. See also State v. Crawford, 344 N.C. 65, 77 (1996) (refusing to modify jury instruction requiring that defendant have believed in need to kill).

The potential impact of accident as a defense instead of self-defense. What is the impact of applying accident instead of self-defense principles to warning shot, gun struggle, and other murder prosecutions in which the defendant acted defensively but did not intend to kill or use deadly force? The case law on accident is relatively undeveloped in these situations, making the rules less certain than in self-defense cases. Based on the above decisions and the additional ones cited below, here are some possibilities to consider.

1. Jury instructions. The courts have held that the defendant is not entitled to have the jury instructed on self-defense in these cases. Still, some explanation to the jury about self-defense principles may be necessary. For the defense of accident to apply, the defendant must have engaged in lawful conduct and must not have acted with culpable negligence. See, e.g., State v. Riddick, 340 N.C. 338 (1995). The firing of warning shots or use of physical force to gain control of a gun could be considered unlawful or criminally negligent unless the defendant had the right to take those actions to defend himself. Accordingly, a hybrid instruction of some kind, explaining how principles of self-defense may make the defendant’s actions permissible, may be necessary.

2. Evidence. The courts have sometimes found that the defendant could not offer the sort of evidence allowed in self-defense cases to explain why the defendant believed it necessary to take defensive action—for example, evidence of previous instances in which the victim acted violently, which made the defendant reasonably believe it necessary to use force in self-defense. See State v. Strickland, 346 N.C. 443, 445–46 (1997) (finding such evidence inadmissible in support of defense that court characterized as accident defense). Again, however, for the jury to determine whether the defendant acted lawfully and without culpable negligence—requirements for an accident defense—such evidence would seem to be relevant.

3. Lesser offenses. The courts have held that a defendant who did not act with the intent to kill or at least use deadly force is not entitled to a jury instruction on imperfect self-defense, which reduces murder to voluntary manslaughter. A defendant may still be entitled to an instruction on involuntary manslaughter. A person may be found guilty of involuntary manslaughter if he killed another person by either (1) an unlawful act that does not amount to a felony and is not ordinarily dangerous to human life or (2) a culpably negligent act or omission. See State v. Wilkerson, 295 N.C. 559, 579 (1978). The cases do not provide clear direction on how to apply these elements to the kinds of cases discussed in this post, however. For example, State v. Hinnant, 768 S.E.2d at 320–21, presented a seeming Catch-22 to a defendant who claimed that he fired two warning shots and inadvertently hit the victim. The court held that he was not entitled to a voluntary manslaughter instruction based on imperfect self-defense because he did not intend to shoot anyone, but he was not entitled to an involuntary manslaughter instruction because he intentionally discharged a firearm under circumstances naturally dangerous to human life.

4. Whether the defendant testifies. The cases recognize that for a defendant to rely on self-defense, he need not testify. Other evidence may show that he met the requirements of self-defense, including the requirement in a murder case that he believed in the need to kill to avoid death or great bodily harm. See State v. Broussard, ___ N.C. App. ___, 768 S.E.2d 367, 370 (2015). As a practical matter, however, a defendant who relies on self-defense will often take the stand to explain what happened. The defendant’s testimony about his intent when he fired or took other actions will likely be critical to whether the case is governed by self-defense principles or the evolving rules on accident.

12 comments on “A Warning Shot about Self-Defense

  1. That’s why I don’t give warning shots. If deadly force is authorized then use it. Chances are good that if the thug has pushed you to that level they deserve death so they can’t bother you or others in the future. Also a good reason to refuse to give any statement to police until you have consulted with a lawyer. You may be in the right and you may have done everything right but never forget that there is some liberals out there, even in law enforcement, who’s looking to try out their social justice warrior nonsense against you. Keeping your mouth shut steals away any power that they may have exercised over you.

    • dam straight Im out on bond for a murder charge right now for firing a single shot in self defense against a known violent man .

  2. Firing “warning shots” are never a good idea. They may be unsafe, and illegal, depending on the circumstances. Wasting a bullet you may need is not a good idea. Since these bullets have a way of traveling greater distances than expected, or needed, and striking people and things which don’t need to have holes in them, they are a danger to others. Warning shots are “Hollywood!” They are akin to “racking the slide” to prove you mean business. Either, there’s another wasted round, or you are only proving the gun was unloaded, and the threat was empty.

    NC laws do not allow the pointing of a firearm is use of deadly force is not justified. (N.C.G.S. 14-34 Assaulting by pointing gun.)

    Also, use of deadly force is not allowed to prevent a future threat. Either, you are justified in the use of deadly force at that moment, in response to THAT threat, or not.

    So, if one were to fire a “warning shot” and it struck the intended target, or another, it could be accidental, but not justifiable as “self defense” since that was not the intent, IMHO.

    • Self-defense law treats the threat to use a deadly weapon, such as pointing a gun at an attacker, as nondeadly force in some circumstances. See John Rubin, The Law of Self-Defense at 23-24 & authorities cited. Even if legally permissible, however, introducing a gun into an already volatile situation may turn a nondeadly encounter into a deadly one, which would be subject to the limitations on the use of deadly force.

      • Thank you for your reply, Mr. Rubin. Is the Law of Self-Defense you referenced available, or is there some way to obtain it? As an NC Concealed Carry Handgun Permit Instructor, I have taught my students to avoid pointing the gun unless they are justified in shooting. That doesn’t mean one must fire the gun, however.

        As a result of my occupation, I am keenly interested in the law of self-defense, and am pursuing more knowledge of the subject. I have read Attorney Andrew Branca’s 2nd, and 3rd editions of The Law of Self Defense, and attended the North Carolina specific seminar which was hosted by The Triangle Shooting Academy in Raleigh. And, I am taking his LOSD Instructor course.

        I have read some of your blog articles on the subject, also, and would like to know more about LOSD in North Carolina. I am not an attorney, and, at this stage of my life, do not plan to be. I just want to be the best instructor I can be.

  3. JW Schrecker is the poster child for what is wrong with law enforcement in America. a police officer that thinks like he does in the above post should never be given a badge or a gun. This is the reason so many people in a america have no faith in law enforcement; we have to many bad apples like JW Schrecker. WOW

  4. You remove my comment about JW Schrecker, but you allow him to post that above comment on your blog. oops right he is a LEO, he has more rights then just a citizen. my bad

    • Mr. Jones, you’ve asserted several times that comments of yours have been removed or taken down. You typically theorize that the reason is because you’ve expressed a viewpoint critical of the School of Government, of prosecutors, or of law enforcement. That’s not correct, and I thought I would take a moment to explain why. The blog software approves many comments automatically. So some comments, by you or others, appear immediately. Sometimes the software, for whatever reason, determines that a comment requires review and moderation before it will be allowed to appear. I don’t know how the software selects those comments. Whatever algorithm it uses comes with the platform; it is not something we’ve programmed. In any event, when that happens, the comment goes into a queue for me to review. I am the sole person who moderates comments on the blog. To the best of my recollection, I have approved every comment you have ever made, regardless of its content. Our comment policy is very liberal, in that all comments that are even vaguely pertinent to the topic at hand, and not profane, will be approved. Again, as far as I can remember, your comments have always met that standard. However, I only moderate the comments every couple of days, so some of your comments may not appear immediately. I hope that this helps to explain the delay that you have observed in posting some of your comments.

  5. Thank you Jeff; I didn’t know about the algorithm.

  6. I am very much in favor of armed defence if it is ABSOLUTLY necessary But we must remember a dead man would not lay easy on the mind We need to protect our loved ones and ourselves, but be sure we are in the right and must employ deadly force

  7. Unfortunately we live in a culture that protects criminals. If a person uses a firearm to defend themselves or their family, they are immediately questioned on whether or not a less than lethal option was available…to protect a criminal’s loss of life. Ridiculous. If you are attacked punch, until they pull a knife, then pull a knife…utterly ridiculous. The judicial system lives in a fantasy land far removed from burden of reality.

    • couldnt of said it better they live in a fantasy land when you are around certain people that are on drugs and alcohol a deadly situation can arise very quickly and a lot of people have lived such sheltered lives they cant understand that . This is the real world . I just made a half a million dollars bail for a murder charge that was self defense and I still got to go to court for it I need everyones support please .

  8. This is why you never ever speak to police even when you are a good guy. It can only hurt you and can never help. Even telling the truth can turn around and bite you. My motto is convey that you want to help but you must speak to your attorney first.

  9. […] have also imposed intent requirements that people might consider counterintuitive. See John Rubin, A Warning Shot about Self-Defense, N.C. Crim. L. Blog (Sept. 7, 2016). For example, in State v. Cook, ___ N.C. App. ___, 802 S.E.2d […]

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