Email to a friend

Mathew B. Tully on the Consequences for service members for Firing their Gun into the Air

Army Times

Firing gun into air may bring trouble

By, Mathew B. Tully
September 29, 2014


Q. What are the possible consequences if a service member fires a warning shot during an argument?

A. A firearm is a dangerous weapon, whether it’s discharged on the battlefield, a firing range or in the middle of an uninhabited desert. Even if a service member doesn’t injure anyone when wrongfully discharging a firearm, pulling that trigger could bring trouble.

The charge of negligently discharging a firearm or the more serious charge of willfully discharging a firearm under such circumstances as to endanger human life are prohibited by Article 134 of the Uniform Code of Military Justice, the “General Article.”

The term “warning shot” may be used to describe a negligent or intentional discharge, but it also has specific meaning under the military rules of engagement to which troops are subject while deployed overseas. In this column, I’m discussing only the potential consequences of discharging a firearm in a non-combat setting and not “warning shots” fired pursuant to the rules of engagement.

The lesser Article 134 offense, negligent discharge of a firearm, is punishable by up to three months of confinement and forfeiture of two-thirds pay for three months. The more serious Article 134 offense involves the willful and wrongful discharge of a firearm under circumstances deemed a danger to human life, which is punishable by dishonorable discharge, total forfeiture of pay and up to one year of confinement.

Depending on the circumstances, discharging a weapon could fall under either of these two offenses. As the U.S. Air Force Court of Criminal Appeals noted in U.S. v. Nicholas T. Burns (2013), there is little room for debate that “firing a weapon toward a barracks room generally endangers human life, even if by fortune no one was present at the time of the firing.” The danger is not as self-evident, however, when the firearm is “fired [outdoors and] toward no one when apparently few people were even outside.”

The Burns case involved an Airman 1st Class Burns who had gotten into an argument with someone in a parking lot outside an apartment building at 2 a.m. and discharged a single round into the air from a .380-caliber handgun. The court refused to uphold his conviction of willfully and wrongfully discharging a firearm under circumstances such as to endanger human life and instead found him guilty of the lesser offense of negligent discharge of a firearm.

The government hadargued that the firearm was discharged under circumstances that endangered human life because the bullet Burns fired into the air could have come down and hurt someone; Burns had fired the gun while angry after drinking alcohol, and people in the area were exposed to risk. The court did not deny the possibility that a bullet fired skyward could fall to earth and injure someone, but the government did not provide evidence detailing the probability of this outcome.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC ( Email questions to


Attorney Locator

Find an attorney near you.
Click below.

Contact Us

  • Foreign Adoptions: A How-To Guide

    Each year, thousands of American families seek to adopt children from foreign countries to give them a new life on our shores. However, given the uncertainties surrounding immigration laws today, some prospective parents are concerned about whether foreign adoptions will …

  • Certification matters for disabled vets

    For Anthony Kuhn, a Buffalo-based partner at Tully Rinckey PLLC, helping disabled veteran business owners is a way to give back. After all, he can relate. “I’m a disabled combat veteran,” Kuhn said, adding that he’s been in the Army for …

Read All

  • Free Download: EEOC 2016 Update White Paper

    You Could Be Sharing Confidential Info and Not Even Know It Tully Rinckey’s white paper details the Equal Employment Opportunity’s (“EEOC”) nationwide change to procedure that has gone largely unnoticed. The new procedure applies to Charges filed on or after …

Read All

Read All

Read All