Ayoob Files: Warning Shots
The Kelvin Robinson Incident
Situation: A massive disparity of force danger impels an armed citizen to fire a warning shot.
Lesson: Sometimes, an exigent circumstance may warrant what is normally forbidden. The best prosecutors understand the balance of justice … and the best defense lawyers know how to seek that.
Warning shots are a staple of TV and movie screens. The actor points a gun aloft and screams, “Stop or I’ll shoot!” and torches one off. Almost every legitimate shooting school for armed citizens, including mine, will tell you to avoid warning shots, and damn near every law enforcement agency in the USA actually forbids them.
The reasons are many. In no particular order: The warning shot creates the false impression you’re trying to kill someone when you aren’t doing that at all. “Stop or I’ll shoot” sounds like a homicidal threat followed by homicidal action. Remember, there are usually more earwitnesses than eyewitnesses, and gunshot reports are louder than shouts and travel farther. Warning shots force you to take your eyes off a potentially deadly threat to ensure the warning shot doesn’t hit a bystander. With unprotected ears, the warning shot can impair one of the key senses you rely on in such moments. If you don’t carefully plant the bullet where it can be safely absorbed and retrieved, it can strike an innocent bystander. If things quickly get ugly, you’ve wasted a precious shot you might soon need to survive. That warning shot is 50% of the in-gun ammo supply with a Remington-pattern derringer and 20% of the ammo in a five-shot snubby.
However, it is axiomatic there is an exception to every rule. Let’s examine a case in point.
The Incident
Hartford, Connecticut, February 18, 2024, shortly after 1:00 a.m. Kelvin Robinson, 58, is the manager of the American Legion Canteen. Some women have gotten into a brawl. One or more of them have in the past been permanently banned from the establishment for fighting, but they wrote letters begging for another chance and the powers that be revoked the ban. This turns out not to have been a good move.
Robinson, assisted by a bouncer, has to escort them out. They do not go gently into the night. There is yelling, there is screaming, there are threats. Finally, Robinson and the bouncer get them out.
Kelvin and his staff have called the police to report the incident, but none have arrived. In fairness, Hartford Police patrol a city that’s “a busy shop for cops,” and their response time is not what they would like it to be. Robinson has called the police, so has a security guard, and so has a third man. A few weeks before, Robinson will say later, they’ve had to call the police while putting some people out, and an officer told them to take care of it themselves because they “have more important things to do.”
The women are not willing to let the matter drop. Smartphones are activated, and reinforcements are called, including sons, daughters and sons-in-law. Soon, an angry crowd has formed outside the bar.
Robinson comes outside to find a crowd he estimates at about 20 men and women, all of them angry and none in a peace-making mood. The person who appears to be the ringleader, a woman, is surrounded by a phalanx of her relatives. Things escalate.
A Shot Is Fired
The bouncer has already been punched once. Robinson is licensed to carry a gun and is wearing a GLOCK 30 in a soft leather inside the waistband holster. He owns a couple of 9mms but bought this compact pistol, actually subcompact for its .45 caliber, because his 9mms were service-size models he deemed too large to comfortably and discreetly conceal. Often leaving the establishment late at night carrying a large amount of cash for deposit, he has chosen to be armed primarily out of concern for robbery.
And now, he finds himself backed into a corner of the parking lot by a crowd that has turned into a gang. The confrontation becomes increasingly physical. He is pushed and shoved. Then, one of the antagonists smashes their smartphone into his face. He feels blood spurt from his nose. He knows he is on a blood thinner and can see the situation has become desperate. The police they’ve repeatedly summoned have not yet arrived. While the bar does not have security cameras outside, it does have ShotSpotter, the system that immediately notifies police when and where a gunshot is fired in the city.
Kelvin Robinson draws his pistol. He points the muzzle straight up and pulls the trigger.
The blast of the .45 auto splits the night and echoes over the din of the angry, hostile crowd, a small tongue of flame lancing straight upward.
And like magic, like Moses parting the sea, the crowd rolls back. There are running feet.
And no one is attacking Kelvin Robinson or his bouncer anymore.
Immediate Aftermath
In the unforgivingly brief moments in which Kelvin Robinson had to make a decision and take action, there was one thing he hoped for and one thing he knew. He hoped that the warning shot would defuse the situation without any bloodshed. That, fortunately, was exactly what happened. He knew that the ShotSpotter would initiate a rapid emergency response from the overburdened Hartford Police. He was right about that, too.
The police arrived quickly once the shot was fired.
The reflexive response was to arrest the guy with a gun. Robinson was handcuffed, transported and jailed. He was released the next day when he made bail, a $100,000 bond. The charges were Breach of Peace, Reckless Endangerment and Illegal Discharge of a Firearm.
It was time to find a damn good lawyer. In circumstances like these, it is critical to retain an attorney who not only understands the subtleties of gun cases and shooting cases but genuinely believes in the client. Kelvin got an advocate who filled both bills.
Attorney Selection
Adam Meltsner, age 48, had been admitted to practice law in Connecticut state and federal courts since 2001. He was, among other things, a shooter.
He has worked at the Kocian Law Group for the last 13 years. The Kocian Law Group, headquartered in Manchester, Conn., with offices in Hartford, New Britain, and New York City, is a member of the Million and Multi-Million Dollar Advocates Forum, one of the most prestigious groups of trial lawyers in the United States. Attorney Meltsner is the firm’s criminal defense attorney. Robinson was aware that the Kocian Law Group had done a lot of good litigation in workers’ compensation and personal injury cases and reached out to them first. Meltsner was the logical attorney on the team to take the case. Robinson told American Handgunner, “When I talked to Adam, it was clear that he was seriously interested in fighting this case. I told him, ‘Okay, let’s go!’”
Meltsner himself elaborated to Handgunner, “Every once in a while, as an attorney, a prospective client will come to my office with a case and a story that just speaks to you. Whether it’s a client who is suffering a serious bodily injury or a gentleman like Kelvin, who was unjustifiably arrested, you just feel that you have to get involved and help that client because it is an issue you are passionate about. Because of that, you know you can achieve a result for your client that other lawyers could not obtain.”
Early in the case, it became apparent to Attorney Meltsner the prosecutor’s office knew that warning shots were generally forbidden to police and this was one standard by which they were going to judge his client. He took advantage of his law firm’s expensive account with Westlaw, a caselaw database used primarily by attorneys, but found little there that would be of help to Robinson. He had better luck at a more common source, Google.
At the website thetruthaboutguns.com, he found a 2018 Connecticut case in which a dad chased a rapist away from his daughter with two warning shots fired into the air from a .44 revolver. The report said, “… the local state’s attorney declined to charge the father for discharging the weapon.” (1) Attorney Meltsner also found a 2016 case in Bridgeport, Conn., in which a storekeeper’s warning shot sent armed robbers scrambling out the door of the shop. No charges had been filed against the shooter in that case, either.
The IACP Is Cited
Meltsner’s research turned up a Consensus Policy Paper on law enforcement use of force published by the prestigious International Association of Chiefs of Police. The document included the following:
“Perhaps the most debated inclusion in the Consensus Policy is the allowance for warning shots. Their inclusion in the Consensus Policy should not prevent an agency from establishing a more restrictive policy on the topic. Defined as ‘discharge of a firearm for the purpose of compelling compliance from an individual, but not intended to cause physical injury,’ warning shots are inherently dangerous. However, the Consensus Policy outlines very strict guidelines for their use in an effort to address this threat while still providing latitude for officers to use this technique as a viable alternative to direct deadly force in extreme and exigent circumstances. The Consensus Policy states that warning shots must have a defined target, with the goal of prohibiting shots fired straight up in the air. In addition, warning shots should only be considered if deadly force is justified, so in response to an immediate threat of death or serious bodily injury, and when ‘the officer reasonably believes that the warning shot will reduce the possibility that deadly force will have to be used.’ Finally, the warning shot must not pose a substantial risk of injury or death to the officer or others.’” (2)
The Legal Process
n’s case went through five court hearings. Meltsner sent his client to Frank Scirpo at Patriot Performance Shooting (patriotperformanceshooting.com), a top instructor who offers, among other classes, remedial gun safety courses for people who’ve lost their permits. Scirpo told American Handgunner, “Mr. Robinson was a nice guy and a very good student. We did discuss the dangers of warning shots. It’s a shame he had to go through that ordeal.”
The multiple assailants created a situation of disparity of force, which means the likelihood of ostensibly unarmed people killing or crippling their victim is so great it becomes the equivalent of a deadly weapon and warrants recourse to lethal force in self-defense. Meltsner argued the disparity of force elements, along with Robinson’s reasonable articulable belief that some in the attacking crowd were armed, created a situation of immediate and otherwise unavoidable danger of death or great bodily harm to Robinson and his staff. This, Meltsner contended, would have justified Robinson in shooting one or more of his opponents; a GLOCK 30, after all, holds 10 rounds of .45 ACP in its standard magazine and an 11th round in the firing chamber.
The defense lawyer pointed out to both prosecutor and judge that Robinson had judiciously fired a single round, in what Meltsner called a “well-aimed warning shot,” with the intent of defusing the situation in the hope of not having to shoot anyone. If killing one or more of his assailants would have been justified under Connecticut law, he asked the powers that be, how could it be justice to convict and punish him for taking the least dangerous action in those circumstances — the lesser of two evils?
The designated prosecutor, Assistant State’s Attorney Edward Azzaro, was reasonable. He offered Mr. Robinson a diversionary program called Accelerated Pretrial Rehabilitation. This would have left the first-time offender free for 13 months, at which time the matter would be over, and the case would essentially disappear. Unfortunately, a “Catch-22” arose. Many years before, as a young man, Robinson had become involved in an altercation with another man, resulting in a low-level misdemeanor conviction. This wiped out the first offender privilege of the diversion unless he could get the prior conviction expunged … and the current pending charge from the warning shot incident automatically took an expungement off the table.
Meltsner took all this before the judge and, using a masterful piece of lawyering, convinced the judge to dismiss the case.
The specter of being behind bars was now gone. All that remained was getting his gun back and regaining the concealed carry permit that had been revoked as soon as Robinson was charged. Meltsner put that process in gear immediately.
That particular gun wasn’t coming back. Robinson was told it had been destroyed as part of department protocol with weapons seized under such circumstances. The G30 was destroyed after having fired a single shot: Robinson had been too busy to even test-fire it between the time he bought it new and the time at which it was confiscated.
Getting the permit back was another matter. It has been set for a hearing. Bureaucracies get backed up, all the more so in the wake of a pandemic. Kelvin Robinson told me his hearing is scheduled for June in the year 2026. That date, unfortunately, is not a misprint.
Robinson had lots of support from the Second Amendment community. None were more supportive than Josh Freeman at Connecticut Gun in Middletown, Conn. He promised to give Robinson a new GLOCK 30 as soon as he got his permit back. “We don’t have many 2A successes here in Connecticut,” Freeman told me, “and I wanted him to know there were people who understood and were standing up for him.”
The Cost Of It
Bail cost Robinson $10,000. The standard bail fee is 10% even if the bondsman doesn’t think you’re a flight risk, and remember, Robinson’s bail was set at $100K.
When I learned how little Meltsner had billed him, I did a double take. Meltsner explained, “I did not charge him by the hour for representation in this case. If I had, between court appearances, research, and preparation, the legal fee could have been quite high, and it would have been justifiable. Some cases are quite simply about the principle — what’s right and wrong. I took his case because I feared he would’ve ended up with a lawyer who was not as passionate about gun owners and their rights, and he would’ve either been overcharged or not obtained the same result.”
Lessons
Hire an attorney who not only understands gun and shooting cases but cares passionately about them. Adam Meltsner, Esq. went above and beyond in this case. He knew the ins and outs and applied them on his client’s behalf with creative and effective legal research and argument.
Don’t automatically assume that every prosecutor or every judge is anti-gun. Prosecutor Azzaro’s offer of diversion with no time served and the case ultimately dismissed was reasonable and compassionate if he believed the warning shot was out of bounds. Given the circumstances of this incident, I certainly agree with the judge’s ultimate dismissal of the case.
Be able to articulate why you did what you did. Kelvin Robinson was able to explain his thought process in firing that bullet into the sky: It would finally summon the long-awaited police via the ShotSpotter. It would hopefully save him and his subordinates from death or great bodily harm at the hands of an angry mob.
And, of course, it would keep him from having to shoot any member of that mob. The outcome shows the warning shot fired by Kelvin Robinson had all three of those benevolent effects.
Finally, let us end as we began. The many good reasons to avoid warning shots are still here, and neither this writer nor this magazine endorses warning shots. But the Kelvin Robinson case shows us there are exceptions to every rule. Common sense tells us that if we are confronted with a choice of a greater evil or a lesser one with no good option, the ethical person must choose the lesser of two evils.
Every state recognizes this in the law. Sometimes, it’s called the doctrine of necessity, sometimes the doctrine of competing harms, and at least four states actually call it the doctrine of two evils. The key element that must be present is an exigent circumstance, an extreme emergency in the immediate here and now, which, to justify deadly force, must entail an imminent danger of death or great bodily harm to one or more innocent people. Kelvin Robinson’s situation certainly fit those parameters.
These doctrines say that we should be forgiven for choosing that lesser evil. That is exactly what Kelvin Robinson did, and it is exactly why the charges against him were ultimately dismissed.
Footnotes: (1) thetruthaboutguns.com/Connecticut-man-won’t-be-charged-after-firing-warning-shots-to-protect-his-daughter/ (2): Donald W. De Lucca, “Use of Force Issues: Warning Shots and Shots Discharged at Moving Vehicles,” President’s Message, The Police Chief (August 2017): 6.
