By Cam Edwards Bearing Arms
Most of us have had it drilled into our heads that firing a “warning” shot is a bad idea if your life is threatened. If your life is in danger, you shoot to stop the threat, not to warn someone away, and discharging a round with the intent to scare an attacker into leaving you alone can come with real jeopardy, legal and otherwise.
That was certainly the case for Tyler Wilson. The Ohio man was convicted on a charge of felonious assault after firing a round that he maintains was intended to “scare” a man who allegedly pointed a gun at him while the pair were engaged in a heated altercation at a gas station. Wilson originally raised a self-defense argument during his trial, but his attorneys abandoned that claim after the judge overseeing the case suggested it was a legal non-starter, and the jury who acquitted Wilson of attempted murder but convicted him on the felonious assault charge wasn’t allowed to consider whether Wilson was acting in self-defense.
After his conviction, Wilson appealed on the grounds of ineffective assistance of counsel, based on his attorney’s decision to drop the self-defense claim. Wilson’s appeal ultimately led to the Ohio Supreme Court, which was tasked with deciding whether someone is “entitled to a self-defense instruction for firing a warning shot at an armed aggressor, or must they [sic] shoot to injure or kill in order to receive the instruction at trial?”
According to the state’s highest court, warning shots do count as self-defense.
The state does not point to any language in the statute specifying that a defendant must have acted with an intent to harm or kill another person in ordert o assert and be entitled to a self-defense jury instruction. The statute requires only that the defendant use force against another person, and there is no further specification of the mental state required to assert self-defense. As there is no statutory support for the state’s claim that self-defense requires an intent to kill or maim, we turn next to case law.
While R.C. 2901.05(B)(1) does not require a particular mental statein self-defense claims, case law specifies the intent necessary to assert self-defense.For nearly 100 years, this court has held that self-defense “presumes intentional,willful use of force to repel force or escape force.” This means that theuse of force must be intentional—not accidental. The only additional “intent”required is the intent to repel or escape force, not an intent to use force to harm orkill another person.
Wilson’s use of force here was intentional. He admitted to grabbing the gun and firing it; he did not claim that he fired the weapon by accident or that the gun went off at random. He also testified that he fired the gun to escape or repel Reffett and to “scare him and back him off.”
More recently, this court reiterated that a person may use deadly force in self-defense when he or she (1) “ ‘was not at fault in creating the situation giving rise to the affray’ ”; (2) “ ‘had a bona fide belief that he [or she] was inimminent danger of death or great bodily harm and that his [or her] only means of escape from such danger was in the use of such force’ ”; and (3) “ ‘did not violate any duty to retreat or avoid the danger.’ ” Our case law provides that the only requisite state of mind or intent that a defendant must have had to assert self-defense is that he or she intended to use force and that such force was used to repel or escape his or her attacker. R.C. 2901.05(B)(1) and our case law do not require any other state of mind, let alone an intent to kill or maim.
As a result of the court’s ruling, Wilson’s conviction has been vacated, and it will now be up to prosecutors to decide whether to recharge him. They couldn’t get a conviction on attempted murder the first time around, and now that Wilson will be able to argue that he fired a shot in order to get a guy pointing a gun at him to back off and drive away, a felonious assault conviction is far from a sure thing.
From a practical standpoint, warning shots still aren’t a great idea. If your life is truly being threatened, then firing a shot meant to scare but not harm your attacker only allows your assailant to respond with lethal force of their own. But from a legal perspective, the Ohio Supreme Court’s ruling makes sense. In fact, given the absence of any qualifying language in the statute on the use of force, I don’t see how the judges could have reached any other conclusion. Firing a warning shot isn’t a great way to stop a threat to life or limb, but it’s not a crime under Ohio law, and I doubt the state’s pro-2A majority in the state legislature is going to change that now that the state Supreme Court has weighed in.
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