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The Myth of Marissa Alexander’s “Warning Shot”

The Myth of Marissa Alexander’s “Warning Shot”

Much of the coverage of the Marissa Alexander case (previously touched on Legal Insurrection here and here) laments that Ms. Alexander was sentenced to a statutory mandatory sentence of 20 years in prison for having “merely” fired a “warning shot”.  

The actual evidence of the case shows that this claim has about the same degree of veracity as does that of claims that Trayvon Martin was shot merely for the crime of wearing a hoodie and possessing Skittles. Meaning, none.

Marissa-Alexander-sentenced

The claim of the “warning shot” is, of course, part of the misinformation narrative intended to minimize the seriousness of Alexander’s conduct deadly-force aggression towards an estranged husband (who, at worst, had in the past threatened her with merely non-deadly force) as well as towards her own two step-children.

In fact, the evidence as recounted by the trial court and uncontested by the defense shows that the bullet “nearly [narrowly] missed [her husband’s] head” while he stood with his hands in the air, presenting no imminent threat whatever to the lethally armed Alexander.

The fired round passed through the kitchen wall immediately behind the husband and step-children (not, it should be noted, the kitchen ceiling), penetrated into the living room, and eventually lodged in the living room ceiling.

The husband and step-children fled and promptly called police–conduct consistent with a consciousness of innocence.  Alexander, having fired the shot past her husband’s head, never called the police–conduct consistent with a consciousness of guilt.

Some weeks later Alexander was charged with having committed a domestic assault upon her husband (despite Alexander having been issued a restraining order by the court)–a specific act that suggests a violent character from which a fact finder could infer that it was Alexander who was more likely the aggressor in the earlier shooting incident.

In short, the evidence supports a compelling narrative that Alexander fired a deadly bullet at her husband and step-children while in a state of malice induced by their just concluded verbal argument–a classic example of aggravated assault (three counts).

Given this evidence it is little wonder that the jury took a mere 12 minutes of deliberations to return a verdict of guilty.

The entirety of the court’s findings in its order denying Alexander’s motion for immunity can be read below:

Marrissa Alexander – Order Denying Immunity – August 17 2011

–Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer in his third decade of practice, an attorney member of the Armed Citizen Legal Defense Network, and a Guest Instructor on the Law of Self Defense at the Sig Sauer Academy. He is the author of the seminal book “The Law of Self Defense, 2nd Edition”.

Andrew conducts Law of Self Defense Seminars all around the country, and he has also launched a series of LOSD State-Specific Supplements that dive deep into every relevant statute, jury instruction, and court case that defines the law of self-defense in a particular state.  NOTE: Seats still available for Law of Self Defense Seminars in Pensacola Florida, Oct. 5 and Columbia, South Carolina, October 19.

You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.

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Comments

See, this is one of those areas of the ambiguity of language.

“…the bullet “nearly [narrowly] missed [her husband’s] head” while he stood with his hands in the air, presenting no imminent threat whatever to the lethally armed Alexander.”

Was this a “warning shot”?

Wull, HAAAAAIIIILLLLL yea…!!! He was warned the crazy b!tch was trying to kill his worthless butt, and he’d better hit the floor.

See…??? Simple.

Rule #1 in any gun instruction class:

“Never actively point a gun at anything you don’t intend to shoot.”

Warning shots, if actually fired, should be pointed directly up, so as to minimize the potential for injury.

    Paul in reply to Paul. | September 27, 2013 at 12:38 pm

    Caveat: OF course, firing a warning shot straight up, assumes that you are not inside a building where someone may be living above you. In such cases, it is better not to fire any warning shots at all, and only shoot at what you intend to shoot if faced with imminent danger of life threatening concern.

      sequester in reply to Paul. | September 27, 2013 at 1:51 pm

      Paul,

      No two use of force situations are the same. I know of a very well qualified shooter (NRA Firearms Instructor, US Marine Corps Firearms Instructor, competition shooter) who fired a precise warning shot when confronted by a group of youths menacing him with baseball bats. The warning shot saved lives. The Court found that the discharge of a firearm by a Marine Firearms instructor was an act of skill and precision, not reckless.

        The problem with a warning shot isn’t merely that it can be (often is) reckless. The problem is that it is the use of deadly force in a confrontation with another. The use of deadly force in a confrontation with another is permitted only in self-defense against an imminent threat of death or great bodily harm. Shooting into the air, or wherever, rather than at your attacker suggests that the threat was not, in fact, imminent, as inferred by your own conduct. Indeed, in most “warning shot” cases the shot is fired precisely with the intent to prevent the situation from escalating to an imminent threat of death or grave bodily harm–meaning the threat is not yet at that level. And if the threat is not at that level, the use of deadly force in a confrontation with another is not lawful.

        I’m glad the Marine got a break, but that’s what it was, a break. A different judge could easily have ruled the opposite–sadly, not all judges are respectful of our armed forces–and then where would he be?

        –Andrew, @LawSelfDefense

          Phillep Harding in reply to Andrew Branca. | September 27, 2013 at 2:40 pm

          The laws and legal precedents regarding use of a firearm in self defense probably increase the number of firearm related homicides.

          One of many reasons I think CCW courses, complete with self defense law, should be taught in grade school, and teachers should have CCW permits. (No insistence that they carry, just that they have the certificate to go with the dozens of other certs they have to have.)

          this is where it seems to get real foolish.
          if you are running at me 100 feet away wit machete yelling I am going to kill you I could (when I carried (with good glasses) I could dot the i’s usually) drop a warning shot onto ground 10 feet in front of you.
          you are running at me with a weapon, is that not imminent enough?
          this is where I feel (and no offense meant to you or the prof)defense lawyers created bad precedence.
          I know I am in danger, I know I can target and show I can and will kill you, yet I choose to let you live.

          from a legal standpoint we MP’s used to PURPOSELY qualify low so we would not be held to expert standards. JAG lawyers loved to use qualifying scores as the proof of how we should shoot. If you qualify expert and miss and someone else hurt you are blamed, but if your scores show you “were not that good” then there was a leniency factor. hell I had a jag lawyer ream me for NOT shooting someone and instead putting his head through a wall (I hit the stud) and bending a 6 cell maglite over his skull. client had brain damage but was alive.
          Seems thats sort of the same thing.

          sequester in reply to Andrew Branca. | September 27, 2013 at 4:10 pm

          Yes he did catch a break. The Judge was a reserve United States Marine Corps Colonel.

          dmacleo asks: “if you are running at me 100 feet away wit machete yelling I am going to kill you I could (when I carried (with good glasses) I could dot the i’s usually) drop a warning shot onto ground 10 feet in front of you. you are running at me with a weapon, is that not imminent enough?”

          Sorry, but the answer is “No,” a person armed with a contact weapon who is 100 feet away does NOT represent an imminent threat of death or grave bodily harm–at that distance, not even if they threw it at you. I suggest you learn the AOJ Triad as a useful cognitive tool for evaluating the imminence of a threat.

          And soldiers have since the advent of firearms been told to shoot low, if anything, so that the rounds that miss might skip up and hit their attackers–dropping a round 10 feet in front of a distant aggressor is a pretty good way of unintentionally killing them, and THAT is not self-defense.

          Might I suggest a book? 🙂

          –Andrew, @LawSelfDefense

          but I am disabled, if he reaches me I could not stop him even with a matching weapon, and if I don’t stop that person running at me ASAP I am dead. How long does it take to run 100 feet? not long enough.
          still, if a person is trying to kill me it should not matter how or when I stop him.
          this is where the law has evolved to, and its f’ing stupid.
          IIRC was around 1986 or so (I may be off there) when this whole level of force stuff really took off. As an MP if a person was trying to kill me with a brick I better not shoot him. Because I would lose rank no matter what.
          stupid then, stupid now.
          I blame liberals/hippies.

          And soldiers have since the advent of firearms been told to shoot low

          I missed that part.
          I can tell you if caught doing that when I was in as an MP you were in trouble.
          don’t make the error of confusing battlefield techniques with the MP LEO techniques, 2 different things especially in the Army as (unlike AF/NAVY SP) the Army MP did actual normal police duties.
          Army MP is (was?) the closest thing to civilian LEO in the services.

          wish I had edit button 🙂
          should clarify the discussion I am having with you has nothing to do with this case, more a stuff in general discussion.
          I agree with your thoughts on this case.
          and my thoughts are more about the laws being right/wrong not about something being illegal.
          thanks for listening 🙂

        TrooperJohnSmith in reply to sequester. | September 28, 2013 at 11:15 am

        I fixed this line for you:

        “…a precise warning shot when confronted by a group of youths yoots menacing him with baseball bats.”

        😆

MouseTheLuckyDog | September 27, 2013 at 12:45 pm

What is eally interesting is the Aggravated Assualt instruction that the Court overturn was also one that the Corey team tried to use in the GZ case.

West made almost exactly the same argument, that the instruction inverted the burden of proof and Nelson went with West’s argument.

Seems like Corey has been getting away with murder, or at least obtaining of improper convictions for murder for a while.

Good. The law worked just as intended, again.

She went from Hero to Zero for ‘Stand Your Ground’ supporters pretty quickly. Once the actual ‘facts’ started getting out bit by bit during her preliminary hearings and subsequent jury trial. Hers was an act of malice, pent up anger and hostility [and potential infidelity], and not one of self-defense under articulable threat of impending great bodily harm or death. Not even the hail mary long ball “Burning Bed Defense” applies in the slightest here. We can put this one to bed for good for sure now.

“Some weeks later Alexander was charged with having committed a domestic assault upon her husband (despite Alexander having been issued a restraining order by the court)–a specific act that suggests a violent character from which a fact finder could infer that it was Alexander who was more likely the aggressor in the earlier shooting incident.”

Andrew – I would argue that the charging count is not a ‘fact of relevance’, seeing as she is innocent until proven guilty, the fact finder can not infer that she is guilty as charged just BECAUSE she was charged.

DOn’t get me wrong, I’m not defending her, I think she did NOT act in self defense, I think she shot because she wanted to kill him, and missed, and was not in fear at the time.

Her prior CONVICTION for assault on him trends in this direction also.

    Paul in reply to pjm. | September 27, 2013 at 12:57 pm

    This new trial is a political concession. I am confident that a jury upon hearing the correct jury instructions and the facts as presented in the first trial (northing more)will come to the same conclusion as the prior jury did.

      Will there be a new trial? I rather doubt it. The evidence against her is compelling, and a new trial brought to the predictable verdict–guilty on three counts of aggravated assault–isn’t going to assuage the racial activists. After all, that’s what they have NOW.

      No, I expect the state will extend yet another plea agreement–maybe the same three year deal, maybe a five year deal, both with credit applied for time already served–and she’d be a damned fool not to take it.

      So, a second trial is certainly feasible, but not what I would consider at all likely.

      –Andrew, @LawSelfDefense

        This was my exact thought wen I first heard of this. To appease the race baiters. I believe she will plea to the original 3 years offered with credit for time served and be granted same.

          Phillep Harding in reply to SLGallo. | September 27, 2013 at 2:44 pm

          Would race be an issue if her husband is black? (I’ve seen nothing).

          That said, he sounds like a fool if he followed her into the garage. Still, “fool” is not a chargeable offence.

          sequester in reply to SLGallo. | September 27, 2013 at 4:50 pm

          If the State is really concerned about the racial politics, it might be pled down to a domestic assault type misdemeanor.

        ‘She’d be a damned fool not to accept…’

        Do you feel there’s any question about her left on that issue at this time ? The ‘damned fool’ question, that is. 🙂

        I think I saw Crump on TV with her, he’s got his hooks in. That does not indicate ‘plea bargain in her future’ to me – no publicity in it for him.

        Yes / no ?

    Well, she pled no contest to that later domestic abuse charge, I believe, which is the same as guilty. Certainly were I the state I would argue that it goes to her character for violence. Were I the defense I would argue that just because she may have tended to violence against her husband after the shooting event doesn’t necessarily mean she so tended prior to the shooting event.

    I think it’s a moot point, however, as I don’t expect a second trial on the substance. I expect she’ll be offered, and will accept, a plea. That path serves all parties–the defense, the defendant, the state (which had, after all, offered a plea in the first place), the racial activists–everyone except Alexander’s NEXT husband.

    –Andrew, @LawSelfDefense

      Yes, ‘nolo’ on the prior is what I read. That could only come in at sentencing now, though, right ? Not during the guilt phase ?

      And ‘acts after the shooting event’ could not come in, either, for guilt.

      But I may have misinterpreted you, I thought you were saying the ‘charging language’ of the CURRENT charge weighs against her as a ‘fact to determine guilt’, of course it can not.

      I do agree the state and Angela will cop out to appease the baiters.

      I read somewhere her attorney is a lady named ‘??? Gay’ ? Hmmm… any relation to the male prosecutor of that name ?

        Well, our discussion got a little confused from my perspective, but I certainly agree that the charging language of the current charge against her is not itself evidence that can be used against her.

        –Andrew, @LawSelfDefense

Wow. The guy is 5′ 5″ and 245 ? Maybe she should have claimed she was afraid of the big black beachball in the room ? 🙂

If she’s gonna play ‘who’s the daddy?’, she shoulda gone on Maury.

Can she get some added counts for witness tampering, subourning perjury, etc ?

Forgot to add – the complaint states that she “…nearly missed his head”.

Wouldn’t he be dead then ? ‘Nearly missed’ means ‘did not miss’ !

Andrew, thanks for the explanation and review. Once again the MSM failed to relay the relevant facts.

Gosh, it’s like it’s a pattern or something…

Andrew,

I don’t think the facts matter very much in Alexander case now. It is a political case and has moved out of the realm of mere jurisprudence. The Appeals Court ruled in record time — just weeks.

In the case Falwell v Florida (which took 2 years to decide) the Court said:

Jury instructions are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred

In this case the jury instruction read:

To prove the crime of Aggravated Battery, the
Defendant must prove the following two elements beyond

So at least in this case, shifting the burden of proof and confusing a lay jury was not fundamental error. Yet in the Alexander case it was.

Mr. Falwell is serving 15 years with a release date of October 23, 2024. It is unlikely the Florida Supreme Court will hear his case. Since he is indigent his chances of a successful Federal habeas corpus appeal are limited.

Alexander is going to be ushered home with perhaps a wrist slap now. Falwell will serve 15.

Please feel free to write some words that make me feel better a State giving all citizens equal protection of the law.

If this guy were granted “do-overs”, I expect he’d appreciate the chance to grab the original plea deal offered to him as well:
http://famm.org/orville-lee-wollard/

Connivin Caniff | September 27, 2013 at 9:22 pm

In any event, in my opinion, twenty years seems excessive for this offense. I wouldn’t mind, though, if Corey got twenty years for her intentional, malicious misdeeds.

amatuerwrangler | September 28, 2013 at 12:31 am

Thanks for the great summary, Andrew.

A couple comments for commenters, however.
Dmacleo: Get that book! You have acquired some concepts about self-defense that will do you more harm than good.

In general, I would like to think that every person who has worn the country’s uniform in its defense is on a fast-track to sainthood. I, of course, would think wrong. Many of us on here have served and I fear that we all can recall serving with at least one person you did not hold in high esteem. Don’t get into the habit of assuming service guarantees proper behavior for the rest of one’s life.

And, Dmacleo, yes soldiers were taught to shoot low… that if you are to miss, you do yourself more good to miss short than long. A short strike may ricochet to a good result, or the rock the bullet kicks up may result in injury. Also there is a psychological thing about advancing into bullets that are missing now but not for long; shots over head are often answered with a crouch and continued advance….

OTOH, you may have meant shoot for a low qualification score so that a miss or wild shot is easier explained. Missing a shot during the real thing is not unusual, actually more the rule, even for those folk who are real crackerjacks at the range.

Buy the book. Being “tried by 12” is not that much better than the “carried by 6”; its best to experience neither. Buy the book.

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