& Cons of Warning Shots and Signal Shots
(© Copyright 1994 by LAAW International, Inc. All rights reserved.)
Shots - Introduction:
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
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)
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
related to warning shots are signal shots. This category is discussed
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.
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.
- 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.
- Negligent Discharge - A negligent discharge is the
precipitous discharge of a firearm absent the intent, and prior knowledge,
of the person holding the gun.
- 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,
- 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.
- 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.
Shots and the U.S. Constitution:
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
and Cons of Warning Shots:
(the audible sound of the discharge)
- May cause fleeing suspect to
physically stop, or to stop a vehicle
- May stop/limit a person's aggression
- May get a crowd's attention
- May "buy
time" in a situation
- May impact an innocent bystander
- May impact a suspect when deadly
force is not justified
- May precipitate another officer
to shoot someone unjustifiably
- May cause the recipient of the
warning shot to escalate his/her use of force against the officer(s)
- May impact on property causing
- An officer who improperly shoots
a person (accidentally or otherwise) may try to claim that the
impacting shot was a warning shot
- May engender
fear in innocent bystanders
and Cons of Signal Shots:
- Gives officers
an option for signalling to officers and others in emergencies
- Signal shots may impact on people
- If an officer
fires a shot that inappropriately impacts on a person or property
the officer may allege that that fired shot was a signal shot
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.
- University security guard's warning shot
killed student - negligence - Jones v. Wittenberg University, 534 F.2d
1203 (6th Cir. 1976).
- 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).
- Warning shots WERE NOT EFFECTIVE:
- 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).
- 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).
- 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).
- Officer fired warning shot at
person who was not known to be armed. United States v. Hagan, 913
F.2d 1278 (7th Cir. 1990).
- DEA officer's firing of warning
shot had no effect. United States v. Arango, 879 F.2d 1501 (7th Cir.
- 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).
- Warning Shot STOPPED Suspect:
- Warning shot fired over van, stopped
the van. United States v. Perez, 956 F.2d 1098, 1100 (11th Cir. 1992).
- Officer fired warning shots in
the air and the suspect stopped. Rogers v. Rulo, 712 F.2d 363, 365
(8th Cir. 1983).
- 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).
- 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).
- Fleeing inmate stopped when officer
fired warning shot. State of Wisconsin v. Dinkins, 458 N.W.2d 391
- Officer fired warning shot and
truck stopped. United States v. DeSimone, III, 660 F.2d 532 (5th Cir.
- 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).
- 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.
- Berry v. McLemore, 795 F.2d 452, 458 n.7 (5th Cir. 1986).
- Berry v. McLemore, 795 F.2d 452, 458 (5th Cir. 1986).
- 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).
- Bell v. City of Milwaukee, 746 F.2d 1205,
1279 & n. 89 (7th Cir. 1984).
- Garcia v. United States, 826 F.2d 806, 811 (9th Cir. 1987).