MD: Warning Shot Cited as Evidence of Restraint in Self Defense Shooting

Gun Watch ^ | 15 November, 2014 | Dean Weingarten

[marktwain]

Many posters on the Internets have stated that "warning shots" would be taken as evidence that the shooter did not consider the threat to be deadly, or they would have shot center mass instead of firing the warning shot or shots.  In this case from Maryland, the prosecutor came to the opposite conclusion.

From cecildaily.com:

“He did everything he could have done. Maryland law says the person must first retreat if possible. He retreated as far as he could. He was backed up into a corner of his deck. He had nowhere else to go,” Rollins said.

The rival kept advancing, even after the warning shot, prosecutors said. Even so, prosecutors added, the homeowner still exercised some restraint.

The case also illustrates the principle of "disparity of force".  Disparity of force is the principle that even if your opponents are not armed, if there is sufficient difference in the level of force available to the participants that a reasonable person would fear for their life, that can be considered a deadly threat.   Large differences in size and age are common factors, as are multiple assailants.  Rollins is the prosecutor:

Rollins also pointed out that the homeowner was “outnumbered three-to-one” during the incident.

“One of the men who had come to the house with the woman was much bigger than (the homeowner). He was a big guy, over 6-feet tall and weighing about 300 pounds.”

The prosecutor called the case "...a classic case of self-defense,”.  An important point in the case was that even the three aggressors agreed on what essentially happened:

For the most part, even the versions given by the three who had showed up at the shooter’s home matched the account given by the shooter.

No prosecutor is bound by any other prosecutor's judgements.   But in this case, at least, this prosecutor found the firing of a warning shot to be evidence of restraint.

One last observation.  In spite of the clear explanation of the prosecutor, the headline writer felt compelled to put self defense in quotes: 

State's Attorney rules 'self-defense' in Elkton-area shooting

 ©2014 by Dean Weingarten: Permission to share is granted when this notice is included.    Link to Gun Watch

[yefragetuwrabrumuy]

This “negligent discharge” is so conditional and situational that it would never legally fly outside of states or D.C. where guns are still effectively outlawed. While acting in the prevention of a felony, it would be an unconscionable “parsing” of an event.

According to Criminal Defense Lawyer.com, “You cannot commit an unlawful discharge of a weapon if you fire it accidentally. A prosecutor must show you intentionally fired the weapon, but does not have to show you did so maliciously or with the intention to hurt someone or damage property. Prosecutors typically show your intent from the circumstances surrounding the situation, witnesses testimony, or even your own statements.”

[Yo-Yo]

Unlawful discharge is not the same as negligent discharge.

[yefragetuwrabrumuy]

Legally, “Intentional, Negligent, or Careless Discharge” are classed under the previous citation.

http://www.criminaldefenselawyer.com/crime-penalties/federal/Unlawful-discharge-weapon.htm