Updated December 10, 2022.
“If there’s ever a problem here, just walk out on the balcony, here, walk out, put that double barrel shotgun and just fire two blasts outside the house.”1 – Joseph Robinette Biden, 46th President of the United States.
While Ol’ Joe may think that is prudent advice, is it? It raises the ultimate question: are warning shots legal in Texas?
Can you use a warning shot to stop a trespasser in Texas?
First, what does the law mean when it uses the term “mere trespasser?” This means that the person trespassing on your land has not committed any other criminal offense and has not attempted forceful and unlawful entry into your home or another structure on your property. The individual is simply on your land without authorization.
What you shouldn’t do
What’s the best course of action? Let’s start with what you absolutely shouldn’t do: don’t go outside and fire a warning shot into the air. If you do, you could be arrested for a serious felony. While you won’t find the word “warning shot” in the Texas Penal Code, Texas courts are likely to consider such a shot as a use of deadly force.
Texas law defines deadly force2 as force capable of causing death or serious bodily injury. There is a very strong argument that all firearm discharges, including warning shots, constitute deadly force because of the inherent design of firearms.
Additionally, firearms, by definition, are deadly weapons3.
Regardless of where the barrel is pointed, when it comes to a warning shot, we have seen many people arrested for the felony offense of aggravated assault with a deadly weapon4. Additionally, at trial, it is an uphill battle to obtain justification as a defense because the law does not allow using deadly force against a mere trespasser.
What should you do?
Now, what is the best course of action in our example? A good start would be to call 911 to report the trespass. Additionally, under certain circumstances, Texas law allows for the use of force—not deadly force—if the trespasser does not depart immediately after being told to leave, so long as the force was reasonable and immediately necessary under the circumstances5.
Remember, preparation for any scenario is important as a responsible gun owner. In this situation against a mere trespasser, leave the firearm holstered and reach for the telephone first.
Still have questions about if warning shots are legal in texas?
The attorneys at Walker & Taylor, PLLC, offer consultations to answer your legal questions. Our consultations are for Texas and related federal law.
Speak to an attorney and get answers to legal questions regarding firearms, self-defense, gun rights, or related criminal or civil law. Give us a call today at (281) 668-9957.
Author: Richard D. Hayes, II