UPDATE: My nephew and the PA police...

[avs11054]

firing in the air has not killed anybody I have ever heard of

Google Shannon's law in AZ.

Did he admit to firing a warning shot in the air or was the shot fired a ND because he had his finger inside the trigger guard before he acquired his target?

This seems a bit unclear. In some of the posts for the original description of the incident, it states that he fired a round into the air. In others, it states that he drew the gun and had his finger on the trigger and had an ND.

In both cases, especially the latter of the two, it would be extremely hard to claim he shot the gun in self defense.

 

[goon]

So would the OP's nephew have been justified in just opening up on the occupants of the car from the original thread?

I admit, I haven't really considered this. Are you justified in shooting at an attacker when he has a gun pointed at you but not opened fire?

 

[Six]

Would you be in fear for your life?

I would be.

 

[Sam1911]

So would the OP's nephew have been justified in just opening up on the occupants of the car from the original thread?

Well, no one really knows. We don't have enough information to say for sure. As no one was killed or wounded, no evidence (that we've heard of anyway) was recovered, the shooter did not report the altercation, someone else did, etc. It is possible that if he'd shot there would have been a wounded or dead "attacker" interviewed or recovered by police, maybe the alleged shotgun would have been found with that person's fingerprints on it, maybe other witnesses would have been compelled to support the shooter's immediate need to defend himself. Maybe this would have gone to a trial with expert witnesses, recreation of the events, much more extensive investigation, and a jury declaration of not guilty.

Or maybe none of those things would have happened. We just don't know, and probably can't know.

What we do know is that, by his own admission, the shooter fired a shot, which is admitting to committing a criminal act. He has no proof, beyond his say-so, that there was an immediate, credible need to fire that shot (and the fact that he didn't fire directly at a particular attacker could actually be working against his claim). That makes it difficult to make a successful "affirmative defense" for the charge of unlawful discharge of a firearm. He's probably fortunate that he wasn't charged with assault with a deadly weapon or some other more serious offense which "warning shots" can sometimes incur if there is not supporting evidence to justify your need to break the law that way.

I admit, I haven't really considered this. Are you justified in shooting at an attacker when he has a gun pointed at you but not opened fire?

Oh beyond most reasonable doubt. A gun pointed at you is one gentle, split-second, squeeze from death. That would be compelling, reasonable fear of immediate death or bodily injury -- well over the threshold usually needed to present a successful affirmative defense claim of self-defense.

But, you must be ready to explain to the police that you HAD to fire that weapon at THIS person RIGHT THEN because they were about to enact deadly violence against you and they had the ABILITY (weapon?) and OPPORTUNITY (were they close enough to make their threat real?) to do so.

If you can't provide supporting evidence for those things -- even if they were absolutely real -- then you should expect to, and prepare yourself to, face criminal charges.

Firing a weapon in self-defense is better than dying, but it is still a bad, bad thing with serious repercussions.

 

[goon]

Fair enough.
From reading the first thread and now this one I noted what seemed like some inconsistencies in the shooter's story - but I guess with adrenaline flowing from having a gun pointed at you, maybe that's understandable. Maybe not.
I'd figured that a gun pointed in your direction would be a legit reason for to defend yourself. Would an intentional miss being fired at an attacker have been better than an unintentional discharge? Just seems to me that the two kind of result in the same thing.
And if a projectile going somewhere you don't intend for it to go is cause for criminal action against you, maybe those who rely on shotguns for defense had better switch to slugs.
Just some things that got the wheels turning. Sorry for this guy's misfortune.

 

[Sam1911]

From reading the first thread and now this one I noted what seemed like some inconsistencies in the shooter's story - but I guess with adrenaline flowing from having a gun pointed at you, maybe that's understandable. Maybe not.

Some inconsistencies are to be expected, probably, but they certainly don't help. Absent any corroborating evidence or witness testimony, all the police really have to go on is someone's report that he fired the gun and his admission that he did so. In my (obviously incompletely informed) opinion, the officers seem to have given him pretty much the benefit of the doubt as they only charged him with the most minor offense he committed. Yes, they could have chosen to drop the whole matter, but based on nothing but a "he-said/she-said" situation, I can see why they wouldn't.

I'd figured that a gun pointed in your direction would be a legit reason for to defend yourself.

About the most legitimate reason ever.

Would an intentional miss being fired at an attacker have been better than an unintentional discharge? Just seems to me that the two kind of result in the same thing.

Well, that's kind of the same thing and kind of not. (And this is important!)

Self-defense is very different from almost any other kind of criminal defense.

If you want to claim that you've acted in self-defense, it is critically important that you did nothing by accident. Shooting someone, firing a weapon within city limits, and assault are all serious crimes. Your need to defend yourself can trump those charges against you, but the first thing you have to do is admit to committing that crime. Then you present the evidence that gives you an "affirmative defense" by which the state declares your crimes to be set aside due to a life-or-death need. "Yes, I shot this man -- and here's why: ..."

Other criminal defense cases hinge on you claiming that you did NOT do something, or did not intend to do that thing, or that it was not your fault that something happened. If you claim to have accidentally discharged your firearm you are stating off the bat that you did NOT have justification for shooting it, you weren't shooting it to defend your life, and you've screwed up. Any consequences of that act fall entirely on YOU, not on some attacker, and there is no justification that sets aside your criminal (or civil) liability.

Given that, I'd much rather try to make the case that I'd fired a warning shot (even though I don't think that's a worthwhile thing) and had sufficient justification for doing so, than that I accidentally fired my weapon without any hope of defending that action.

And if a projectile going somewhere you don't intend for it to go is cause for criminal action against you, maybe those who rely on shotguns for defense had better switch to slugs.

Well, any projectile that leaves your gun is YOUR responsibility, in general. In some cases you may be protected by the "felony murder" rule, in which any unfortunate results (deaths, injuries) resulting from the commission of a felony or the defense against it are charged against the instigator of that crime.

(For example, a bank robber who starts a shootout might be charged with the deaths of everyone killed, whether his bullets hit them or not. Or a car thief pursued by police might be charged with the deaths of innocents killed in any accidents caused during the resulting chase.)

But that's certainly a thin string to hang your hopes on. One benefit of using a shotgun would be the fairly realistic likelihood that the building you are in will contain all of the pellets that miss, whereas higher powered rounds might escape.

Again, though, NOT shooting is always a better thing than shooting ... unless you absolutely MUST to keep you or yours from dying. The consequences from even a "good" shoot are very, very bad.