But she didn't actually shoot anyone
January 18, 2010 10:07 AM   Subscribe

fiction writing filter - I'm writing a story set in anytown, USA. I know that gun laws are different everywhere, and I've googled gun laws for each state, but they don't really answer my question. So, here goes...

The premise of the story is this, a store clerk of a semi-suburban wrong-side-of-town convenience store fires warning shots from a gun belonging to the owner of the store in order to keep participants of a shoot out (happening outside) from entering the store. Her shots don't hit anyone, but a bystander and a one of the participants are shot outside.

My question is: In your city, would the store clerk be charged with a crime? For example, firing a weapon inside city limits? Firing a weapon that's not hers? Anything like that.

And, if she isn't charged with a crime, and didn't actually see what happened outside, what happens to her after the cops get there? I mean, is she considered a participant in the shoot-out because she fired a weapon? I don't want her to "go downtown" just give her statement and be sent home, so if she will be charged with a crime, I'll write it another way.

Since my story isn't set in my current town, calling the police station here wouldn't be helpful to me, I'm trying to set my story up in a more suburban-ish area (I live in a very rural area right now where the gun laws are extremely lax).
posted by patheral to Law & Government (11 answers total) 1 user marked this as a favorite
Best answer: Is there any indication that the shoot-out participants were firing at the clerk? Or that if they entered the store they would take attack her? In many jurisdictions you can't use the threat of deadly force (e.g., warning shots) against people who aren't threatening deadly force against you. Thus, the warning shots would probably at least be a criminal assault. She could probably also get charged with reckless endangerment.

However, if this happened in a state that had adopted a strong form of the castle doctrine and the shoot-out participants were clearly headed into the store, then she might not be charged with anything. That Wikipedia page has a good rundown of the law in several states, so you might pick one that works well for the story.
posted by jedicus at 10:23 AM on January 18, 2010

She probably wouldn't be charged with a crime, although if the police would certainly investigate her and may arrest her initially if she's in possession of a gun that's been discharged at the scene of a shooting.

If the gun is the same caliber as the gun used in the shooting and there were no other witnesses, there might also be complications as it would be difficult to prove that she hadn't shot anyone. Of course most convenience stores have video surveillance systems, so it probably wouldn't be an issue for long.
posted by electroboy at 10:27 AM on January 18, 2010

It's not uncommon for a town to have an ordinance for "unlawful discharge of a firearm" (or something like that), but it would be up to the local cops to decide whether or not to arrest and charge the clerk.

The way I imagine the scene, the clerk has a shotgun, and the shootout outside involved pistols, so it would be fairly obvious to the cops (looking at the victim's wounds, casings on ground, etc.) that the clerk didn't shoot anyone and was just defending himself.
posted by dalesd at 10:28 AM on January 18, 2010

The problem is regardless of what the gun laws actually are police officers all handle it differently.

For example: In California, you are "legally" allowed to get a concealed weapons permit in some cases.

Real World: They will not give you a gun no matter what.
posted by lakerk at 10:36 AM on January 18, 2010

In most places discharging a firearm is a misdemeanor. However if your character is defending herself then I doubt police would do anything. Also why would they care? They have plenty of injuries and bodies to keep them occupied for a while. It's not like she shot one of the attackers.
posted by Mastercheddaar at 10:37 AM on January 18, 2010

IANAL, IANALEO, my only qualifications to be able to answer this are a) I own guns in the suburbs and b) I've taken a concealed carry course and spent a couple of hours getting educated on what happens when you shoot somebody in self-defense.

I think in most jurisdictions she could be charged with negligent discharge (or reckless, wanton, or unlawful discharge - those keywords are your friends for googling this). Whether she would be or not depends on the mood of the police and prosecutor. I suppose that technically she could also be charged with assault, or perhaps even attempted manslaughter if the prosecutor was fishing.

Other charges would depend a lot on exactly where this is happening, and also what kind of gun the clerk fired - all guns are not created equal in all jurisdictions. In some places, laws on handguns are a lot more strict than laws on shotguns, and she might be charged according to those local laws if she was shooting a handgun - I believe this is the case in the Chicago area. Also, the owner of the store might be charged with something for allowing the clerk access to their gun, again depending on the jursidiction.

That said, here in suburbia in a mid-sized city in the western U.S. on the edge of the prairie, there's no rules against handgun ownership or letting other people have access to your weapons, but there is a law against any kind of firearms discharge except at a range, so I'd say that's probably what she would get, if she got anything. She would likely be taken into custody if she fired a weapon though, especially if a police officer saw her doing so. Actually, if a police officer saw her firing out of the store, they'd probably give her the full hostile treatment, and the clerk getting shot by the officer would be a possibility. If you just want her to give her statement and then go home, I don't think she can be any kind of active participant in the fight.
posted by hackwolf at 10:45 AM on January 18, 2010

Best answer: I think the issue here would be possession, not discharge. If she doesn't own the gun, then having it could be a violation of local law.
posted by Chocolate Pickle at 11:24 AM on January 18, 2010

Keeping a gun in your home or place of business is legal in most areas, regardless of the concealed carry laws. Concealed carry mostly refers to keeping a handgun out of sight either on your person or in your car. The proverbial shotgun behind the counter is usually perfectly legal, even if not advisable. I'm not sure how it works if multiple people have access to it.
posted by electroboy at 11:41 AM on January 18, 2010

Response by poster: I guess I should have mentioned that someone from outside was trying to come inside, which was the reason she fired the weapon. She didn't want the firefight to be carried inside the store (which was empty but for her and a co-worker). The gun is kept under the counter, near the cash register. Originally it was to be a handgun, but I'm liking the idea of a shotgun better.

@ jedicus, thanks, that wikipedia page has a lot of what I was looking for.
posted by patheral at 11:50 AM on January 18, 2010

Best answer: The criteria for the use of deadly force (in justified self-defense, not including special concerns for law enforcement, e.g., fleeing felons) in the United States are pretty much as follows.

Three elements must be present in order for deadly force to be justified:

Ability. The attacker must have the ability to inflict great bodily injury (generally, injury which carried significant risk of death) on the defender. For this discussion, I will note that firearms are always considered to be deadly force.

Opportunity. The attacker must have the opportunity to utilize the above ability against the defender.

Jeopardy. The demeanor and/or actions of the attacker must be such that a reasonable person, knowing what the defender knew at the time, would conclude that the attacker intends to inflict great bodily injury on the defender.

This is an enormous simplification, but nevertheless is pretty much the core of use of deadly force training in the US (the Ability, Opportunity and Jeopardy terminology is used in law enforcement training).

Since firearms are always deadly force, warning shots are a use of deadly force, and therefore, the legal justification for firing a warning shot is the same as for shooting an actual attacker. Warning shots also carry a risk of injuring uninvolved parties. In all deadly force training that I'm familiar with, warning shots are discouraged in the strongest terms. If the attacker is such an immediate and unavoidable threat that the defender is justified in shooting them, then logically the defender's best course of action is to do so and protect themselves. If the attacker's threat is not immediate and unavoidable, then deadly force is likely not genuinely justified, and a warning shot is therefore not justified.

Now, that said, if the defender is in the right (they had a justification to use deadly force to protect themselves, but chose to fire warning shots instead), and nobody was hurt, I think it unlikely that they would be prosecuted criminally for that action. They could, of course, still be sued civilly by the individual(s) they "warned," the owner of whatever property their warning shots damaged, etc.

The castle doctrine comes into play if the situation takes place in a state that mandates a duty to retreat. The castle doctrine is the legal rule that a defender need not retreat when within their own home. In some states, this extends to the place of business, and in many states there is no legal duty to retreat at any time or place (although it may be an excellent idea to do so).

Presuming for the moment that the clerk in the story is in a state that requires retreat from a place of business, they could be prosecuted for their apparently unlawful use of deadly force (most likely assault in the first degree, assault with a deadly weapon, attempted murder, unlawful discharge of a firearm, etc). How likely that is depends largely upon the mood of local law enforcement and district attorney / prosecutors, so for story purposes, there is no fixed answer.

If the clerk is justified in standing their ground (has no duty to retreat) then the only questions are whether they were justified in their use of deadly force (which will depend upon the totality of the circumstances; there is no single answer to cover all situations), and whether or not their local laws prohibiting discharge of firearms have exceptions for self defense (the states I'm familiar with do have such exceptions, but I don't know if this is true for all states).

If, as you say, the clerk did not actually see the gunfight outside, then that would cast doubt upon their justification for using deadly force, and could bring up prosecution for something like reckless endangerment or the like.

If possession of the weapon is a violation of local laws, then the clerk could be prosecuted for that possession, even if their use is completely justified. Bernhard Goetz went to jail for illegal possesion of a firearm, not for shooting his attackers (for which he was acquitted).

And, yes, if the clerk discharges a weapon during a gunfight, they are definitely a participant, and will be detained by law enforcement. The nature of the detention depends upon the answers to the above; if the clerk is clearly justified, then the odds are better that they'll simply be required to give a statement and go home after some number of hours. If the clerk clams up and insists on their lawyer before they talk to the police, then they'll most likely be arrested and their innocence may be worked out later. If there is some factor that would put the clerk's actions clearly in the wrong to the responding officers, then the clerk would almost certainly be arrested.

I'll also note that this interrogation probably would not take place in the store (although initial discussions might); the store is a crime scene (or at least a potential crime scene), and access to it will be restricted until it's no longer needed (e.g., it's been processed for evidence). For a gunfight with injured parties, that could easily take 24 hours, depending upon the circumstances.

Whether cut loose after a statement or sent to jail to be held, the clerk's actions when the responding officers arrive will determine, to a degree, how they're treated by those officers. E.g., running around in a panic with the gun in hand will elicit a much different response than sitting calmly (or in shock) with no weapons within easy reach. I would think that odds are good that the clerk will be handcuffed and searched, unless the situation is very clear cut and the clerk maintains their composure. And maybe even then.

Lastly, I will note that many states have what is termed a "pre-emption law" for firearms. The gist of this is that local municipalities are prohibited from enacting firearms ordinances that are stricter than the state laws. The purpose of this is to have a common set of firearms laws throughout the state, and not a patchwork of varying standards from place to place within the state. There may be limited exceptions, e.g., cities may be permitted to ban discharge of firearms within their city limits.

Full disclosure: I have previously been a law enforcement officer, and I teach self defense classes.
posted by doorsnake at 1:32 PM on January 18, 2010

Considering the warnings we hear on TV about not shooting into the air at midnight, I would expect that this would be at least "unlawful discharge of a weapon". Possibly "reckless endangerment" since the clerk cannot know where the bullet will land.
posted by gjc at 3:26 PM on January 18, 2010

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