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The Pros & Cons of Warning Shots and Signal Shots

(© Copyright 1994 by LAAW International, Inc. All rights reserved.)

Warning Shots - Introduction:

Warning shots are routinely banned by most law enforcement agencies for several reasons: the agencies may not trust their officers to make such a risky decision; the agencies are not willing to risk the intense (and costly) scrutiny of a negative outcome - when a warning shot impacts on a person(1); or, when one officer's firing of a warning shot leads other officers to believe that the suspect has fired a shot.(2) Finally, it may be that warning shots do not always work.(3) However, there are situations where warning shots would not only be appropriate, but also be an effective technique to prevent the necessity of the application of additional force. For example, warning shots have been proven effective in the stopping fleeing suspects(4). A warning shot could also be fired to get the attention of a crowd which is turning violent when no other means of communication may work. A warning shot could stop an armed aggressor who is moving in the direction of another person.

When a warning shot goes awry and hits a person(5) there is no acceptable excuse. Even if the shot is not construed as a Constitutional wrong(6), the shooting will be minimally considered as negligence on the part of the officer. "Any reasonable person would realize that firing a gun in someone's direction at close range [firing a warning shot] raises the likelihood that the person [within] the target [zone] may be hit by the bullet."(7) Where [a] police chief stated that he only intended to fire a warning shot, and the shot impacted on the suspect, the court said "There is no dispute ... over the fact that [the police chief] intentionally discharged his weapon in [the suspect's] direction and that the harm to [the suspect] was foreseeable. As the intent to fire is the only fact significant to the legal determination of whether [the police chief's] act was intentional."(8)

With the above in mind, it will ultimately become the discretion of the officer to fire a warning shot unless there is a reasonable policy and training in place. The policy adopted by the agency must not only be Constitutional, but also parallel the agency's firearms training program. The Sample Policy which follows allows an agency to select whether or not to permit warning shots (Section 3 a & b). At the end of this article the pros and cons are outlined with regard to the use of warning and signal shots. Keep these pros and cons in mind when deciding the direction your policy will take.

Closely related to warning shots are signal shots. This category is discussed next.

Signal Shots:

Signal shots are likewise often banned by law enforcement agencies. Signal shots are those rounds discharged from a firearm that are intended to acquire the attention of others, when the shot is not fired with the intent of causing a person to cease his/her behavior. However, signal shots may be unavoidable in an emergency.

Definitions:

Before we begin our review of the pros and cons of warning and signal shots, we must first have a definitional basis from which to speak.

1. Intentional Discharge - An officer discharges his/her firearm intentionally when (s)he makes a conscious decision for the firearm to discharge. The officer can make a conscious decision to discharge the firearm at a person, to fire a warning shot, to fire a signal shot, etc. If the officer does not intend for the firearm to discharge at the moment the discharge occurs, the discharge of the weapon is an unintentional (inadvertent, negligent, or accidental) discharge.
2. Negligent Discharge - A negligent discharge is the precipitous discharge of a firearm absent the intent, and prior knowledge, of the person holding the gun.
3. Signal Shot - A signal shot is the intentional discharging of a firearm with the purpose of drawing the attention of another person. Signal shots are distinguished from warning shots in that signal shots are not designed to encourage the immediate behavioral change of a person, or persons.
4. Unintentional Discharge (or "accidental discharge", "inadvertent discharge", or "negligent discharge") - An unintentional discharge is the precipitous discharge of a firearm absent the intent, and prior knowledge, of the person holding the gun.
5. Warning Shot - A warning shot is the intentional discharge of a firearm with the purpose of causing a positive change in a person's behavior. A warning shot could be fired to cause a person to stop fleeing, to cause a person to drop a weapon, to gain the attention of a potentially violent crowd, etc.

Warning Shots and the U.S. Constitution:

There is no constitutional requirement that a law enforcement officer must fire a warning shot before using deadly force.(9) A warning shot itself is not deadly force.(10) Of course a warning shot may constitute a threat to use deadly force such that a reasonable person might be justified in returning fire.(11)

Pros and Cons of Warning Shots:

Pros and Cons of Signal Shots:

Summary:

Now that you have a basic understanding of the pros and cons, in addition to other issues regarding warning and signal shots, the need is obvious for a written policy on this timely topic. What follows is a sample policy which can be amended, modified, etc. The decision to allow, or disallow, warning and/or signal shots is up to you. An officer must be given adequate guidance via written policy, supported by competent training. As previously published by the LDM, your agency needs a written policy, especially in areas of high-risk behavior. The intent of the following sample policy is to assist you in the development and ultimate adoption of a policy on this controversial subject.

1. University security guard's warning shot killed student - negligence - Jones v. Wittenberg University, 534 F.2d 1203 (6th Cir. 1976). 
2. Officer's firing of warning shot was allegedly construed by other officers as being fired by suspect. Acoff v. D.E. Abston, 762 F.2d 1543, 1545 (11th Cir. 1985). 
3. Warning shots WERE NOT EFFECTIVE:
    
1. Coast Guard's firing of warning shots (before firing boat disabling shots) had no effect. United States v. Sandoval-Martinez, 880 F.2d 1475 (1st Cir. 1989).
2. Officers fired ineffective warning shots before directing fire at (and shooting in the back of the head) suspect. Hendrix v. Matlock, 782 F.2d 1273 (5th Cir. 1986).
3. Officer's firing of warning shot did not stop person from picking up rifle and pointing it at officer. Brandenburg v. Cureton, 882 F.2d 211 (6th Cir. 1989).
4. Officer fired warning shot at person who was not known to be armed. United States v. Hagan, 913 F.2d 1278 (7th Cir. 1990).
5. DEA officer's firing of warning shot had no effect. United States v. Arango, 879 F.2d 1501 (7th Cir. 1989).
6. See also, Government of Virgin Islands v. Jarvis, 653 F.2d 762 (3rd Cir. 1981); Qualls v. Parrish, 534 F.2d 690 (6th Cir. 1976); Crawford v. Edmonson, 764 F.2d 479 (7th Cir. 1985); Griffin v. Hilke, 804 F.2d 1052 (8th Cir. 1986); Weiland v. Parratt, 530 F.2d 1284 (8th Cir. 1976); Ryder v. City of Topeka, 814 F.2d 1412 (10th Cir. 1987); Acoff v. D.E. Abston, 762 F.2d 1543, 1545 (11th Cir. 1985); State of Missouri v. Proby, 861 S.W.2d 814 (Mo.Ct.App. 1993); and Braxton v. Commonwealth of Virginia, 414 S.E.2d 410 (Vir.Ct.App. 1992). 
4. Warning Shot STOPPED Suspect:
1. Warning shot fired over van, stopped the van. United States v. Perez, 956 F.2d 1098, 1100 (11th Cir. 1992).
2. Officer fired warning shots in the air and the suspect stopped. Rogers v. Rulo, 712 F.2d 363, 365 (8th Cir. 1983).
3. Officer's firing of warning shot over suspect's head caused person to stop. State of Louisiana v. Jones, 565 So.2d 1023 (1st Cir. Ct. of App. of Louisiana 1990).
4. Police firing of warning shot caused two of three fleeing suspects to stop and lay down on the ground. Harrell v. State of Mississippi, 583 So.2d 963 (Miss. 1991).
5. Fleeing inmate stopped when officer fired warning shot. State of Wisconsin v. Dinkins, 458 N.W.2d 391 (Wis.Ct.App. 1990).
6. Officer fired warning shot and truck stopped. United States v. DeSimone, III, 660 F.2d 532 (5th Cir. 1980).
    
5. See Aldridge v. Muffins, 377 F.Supp. 850 (D.Tenn. 1972), aff'd 474 F.2d 1189 (6th Cir. 1973); and Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970). 
6. For a general discussion see "Accidental" Shootings As Fourth Amendment Seizures, Hastings Constitutional Law Quarterly, Vol. 20, No. 2, pp. 337-389, Winter 1992; or Chapter 6, Civil Rights Litigation and Attorney Fees Annual Handbook (Volume 9), by National Lawyers Guild, Clark, Boardman, Callaghan, 1993. 
7. Berry v. McLemore, 795 F.2d 452, 458 n.7 (5th Cir. 1986). 
8. Berry v. McLemore, 795 F.2d 452, 458 (5th Cir. 1986). 
9. Ford v. Childers, 855 F.2d 1271, 1276, n.8 (7th Cir. 1988)(en banc). Ford quoted in Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. 1994). See also LaFave & Scott, Handbook of Criminal Law, 392 (1972). 
10. Bell v. City of Milwaukee, 746 F.2d 1205, 1279 & n. 89 (7th Cir. 1984). 
11. Garcia v. United States, 826 F.2d 806, 811 (9th Cir. 1987).