Case Study: Warning Shots
By Brad Fisher
On October 19, at 9:20pm, a 35 year old Virginian mother fired a single round into the air to scare away a group of boys, one of which was attacking her daughter. Now, it is early in this case and the facts are still coming out, and changing. However, this is a good case to dissect and talk about warning shots.
According to Lakisha Gaither, the woman who fired the shot, a group of boys surrounded Gaither and her daughter as they walked in their parking lot outside their apartment. A verbal altercation began stemming from an earlier incident. One of the boys then hit her daughter. It was at this point that Gaither stepped away from the group and fired a single round into the air.
“I stopped and turned to walk to the middle of the parking lot. I made sure no one was around me,” Gaither said. “I unholstered my gun, pointed it straight in the air and fired just one shot to get him off my child. I just wanted this group of guys to disperse. I didn’t know what they were going to do. I wanted him to stop hitting my child.”
Lakisha Gaither was charged with reckless use of a weapon. For this discussion, we are going to assume that the facts are as stated above. Was Gaither justified in firing her weapon? This is an important topic for all responsible citizens who own firearms. While laws vary from state to state, my focus will be on Iowa law. As I discuss this, think about your state laws and apply them in this case.
First, let’s examine the setting. Again, each state is different and I will be using Iowa law during this discussion. Gaither was with her daughter in a parking lot when approached by the group of boys. Neither Gaither nor her daughter walked away from the group or made any attempt to defuse the situation. Instead, they engaged in a verbal dispute in the parking lot. By engaging the group, they became equal parties to the altercation. As soon as altercation became physical, Gaither and her daughter had a legal requirement to make an attempt at escape. Think about this. Two guys are fighting and one starts to loose. He pulls out a gun and shoots the other. While the situation is different, the concept is the same.
The vary act of firing a weapon is also important. A basic safety rule is to always point your weapon in a safe direction. Pointing a weapon into the air is not a safe direction. This also coincides with knowing what your target is and what’s beyond. If you fire your weapon into the air, you are not firing at a target. Also, you have no idea what’s beyond, because you don’t know where that bullet is going to go. Once you fire a round, you own that round. You are responsible for what happens when that bullet strikes an object. Firing a weapon into the air is never ok.
Firing a weapon may also be considered using force. Iowa code states that using force is justified if it is a reasonable amount of force, you are in fear of intimate severe injury or death, and no reasonable means of escape is possible. A reasonable amount of force is defined as the least amount of force necessary to neutralize the threat without escalating the situation. For example, if someone grabs your arm, you can push or strike that person to get them to release you. Grabbing your arm is not a lethal situation, so you must use less than a lethal amount of force. Iowa, as many states, also require that you must make a reasonable attempt at escape if possible.
Now, let’s apply those standards in this case. First, it is important to know that firing a weapon is using lethal force, whether you miss the person all together or kill your target. Gaither fired her weapon after one of the boys hit her daughter. A strike to the face is not lethal force. Gaither also never claimed to be in fear of her life or her daughter’s life. Gaither also claimed that she walked away from the group before she fired. If she could walk away, why couldn’t her daughter?
In this case, there are strong arguments that Gaither was not justified to use lethal force. Both Gaither and her daughter engaged in a verbal altercation with the group to start the incident. Gaither escalated the situation from a nonlethal assault to a lethal response, which is not considered reasonable under Iowa law. Gaither failed to make a reasonable attempt to escape the situation before she fired.
While specifics will vary by state, it is also worth noting that both police departments and the military ban the use of warning shots. As we just discussed, if a situation warrants the use of discharging your weapon, you are using deadly force. If you have to fire your weapon to stop an attacker, and you are in immediate fear for your life, use well placed shots to neutralize the threat. Never rely on trying to scare someone away. If the situation does not warrant taking a person’s life, do not use your firearm.