At times, law enforcement officers will be involved in shootings and it is later learned or alleged that the suspect never actually pointed his firearm at the officer(s).  Plaintiffs and the media often raise this issue and argue that the shooting was not reasonable because the suspect never pointed his gun at the officers.

The Eleventh Circuit Court of Appeals has addressed this very issue.  In 1997, they decided Montoute v. Carr [i], in which Sergeant Carr shot Montoute, who was armed with a shotgun, despite the fact that Montoute did not point the gun at him and was running away.  The facts of this case are as follows:

In the early morning hours of April 11, 1993, a boisterous crowd of approximately one hundred people had gathered in front of a bar on Lemon Street in Sebring, Florida. After the city police department received several “911” calls reporting fights and gunfire, a team of on-duty, uniformed officers were dispatched. One of the officers was Sergeant Steven Carr.

After arriving at the scene and while standing on Lemon Street, Sergeant Carr heard a gunshot. What he heard was the discharge of a shotgun on that very street. Carr then spotted Montoute, walking or running towards Carr with a 12-gauge, pistol-grip, sawed-off, pump shotgun in his right hand; it was pointing towards the ground. Possession of a sawed-off shotgun is a felony in Florida. See Fla. Stat. Ann. § 790.221 (West 1992). As he approached Carr, Montoute said, “Don’t shoot me, Officer. I on your side, man. I just take the gun from the guy.”

Sergeant Carr and another officer repeatedly ordered Montoute to drop the sawed-off shotgun. It is undisputed that Montoute heard those orders but refused to comply. Without giving the officers any explanation for his refusal to comply with their lawful orders, Montoute proceeded on with the sawed-off shotgun in his hand. He walked or ran past Sergeant Carr, and once past Carr he began running away. He ran down an alley and onto Highlands Street, a street which runs perpendicular to Lemon Street. In other words, shotgun in hand, Montoute was running away from the crowd on Lemon Street. Carr, who was also on foot, was in hot pursuit. Carr fired one shot from his service revolver at Montoute, but missed. After the first shot, Montoute continued running down Highlands Street towards a parked car. Carr fired a second shot, this time striking Montoute in the left buttock. After he had gone past Carr, Montoute had never turned around to face Carr and had never pointed the shotgun at anyone. [ii]

Montoute filed a lawsuit against Sergeant Carr under 42 U.S.C. Sec. 1983 and argued that Carr violated his right to be free from an unreasonable seizure when he shot him.  Carr filed a motion for summary judgment and asserted qualified immunity as a defense.  The District Court denied the motion for summary judgment and qualified immunity because it held that since Montoute never turned and faced Carr and never pointed the gun at Carr, it was questionable whether Montoute posed a serious threat to him or others.  Sergeant Carr appealed the denial of summary judgment to the Eleventh Circuit Court of Appeals.

At the outset the Eleventh Circuit noted that since the shotgun held by Montoute was a sawed off shotgun, and an since possession of a sawed off shotgun is a felony under Florida law, Montoute was a “fleeing felon.”  The court then stated:

At least with regard to fleeing felon suspects, the Supreme Court held eight years before this case arose that it is not unconstitutional to use deadly force in order to prevent escape “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical injury, either to the officer or to others.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985). “Thus, if the suspect threatens the officer with a weapon or there is reason to believe that the suspect had committed a crime involving infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and, if, where feasible, some warning has been given.” Id. at 12, 105 S.Ct. at 1701. [iii]

The court then explained that there are two possibilities under Tennessee v. Garner to justify the use of deadly force.  The first is when the officer has probable cause to believe suspect has committed a crime involving the infliction or threatened infliction of serious physical harm and such deadly force is necessary to prevent escape.  The second is when the officer has probable cause to believe the suspect poses a threat of serious physical injury to the officer or other and is attempting to escape.  The court then said that the second justification is more applicable in Montoute’s case.

Next, the court explained its rationale in this case.  Because it is articulated in the case so clearly, it is worth quoting.  Particularly, the court stated the following:

Counsel for Montoute conceded at oral argument that if Carr had shot Montoute as he was approaching him, Carr would be entitled to qualified immunity. In other words, Montoute concedes that an officer reasonably could have believed that he presented a risk of serious physical harm until the time he passed where Carr was standing. Nonetheless, Montoute argues that once he passed where Carr was standing and was running away, no officer reasonably could have believed that Montoute continued to pose such a risk. We are not convinced that the danger Montoute posed vanished in a matter of a few steps. More to the point, an officer in those circumstances reasonably could have believed that the danger Montoute presented did not end after he passed Carr.

We accept for the present purposes that, once past Sergeant Carr, Montoute never turned to face him again, and Montoute never actually pointed the sawed-off shotgun at anyone. But there was nothing to prevent him from doing either, or both, in a split second. At least where orders to drop the weapon have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force. Sergeant Carr faced a situation fraught with danger. Montoute had fired an illegal weapon while in a crowd of people in a near-riot situation. He was armed with a 12-gauge, pistol-grip, sawed-off, pump shotgun. Such weapons are specifically designed or altered, and frequently used, by criminals to kill people, which is why the possession of such weapons is a felony in many states, including Florida. Any officer would know that, and would know that pump shotguns can carry and fire more than one round. Therefore, an officer reasonably could have believed the pistol-grip, 12-gauge, sawed-off shotgun Montoute carried was still loaded, as it actually was. Montoute’s unexplained refusal to obey the repeated orders to drop the sawed-off shotgun provided an additional basis for inferring that he presented a risk of serious physical injury to an officer or someone else.  [emphasis added]

In view of all of the facts, we cannot say that an officer in those volatile circumstances could not reasonably have believed that Montoute might wheel around and fire his shotgun again, or might take cover behind a parked automobile or the side of a building and shoot at the officers or others. Indeed, if the officers had allowed Montoute to take cover, or perhaps circle back around to the crowd, he could have posed even more danger than when he had presented a clear target as he approached them. Recall that even Montoute concedes that Sergeant Carr would have been protected by qualified immunity if he had shot Montoute as he approached the officers. Under the circumstances, Carr is no less entitled to qualified immunity because he shot Montoute later instead of sooner. [iv] [emphasis added]

Thus, we see in this case, that the Eleventh Circuit has held that, “where orders to drop a gun have gone unheeded, an officer is not required to wait until an armed and dangerous felon has drawn a bead on the officer or others before using deadly force.” [v]  Thus, the Eleventh Circuit reversed the District Court’s decision denying summary judgment for Sergeant Carr.

More recently, in 2009, the Eleventh Circuit decided Garcynzski v. Palm Beach Sheriff’s Office [vi] in which the court reiterated it’s reasoning in Montoute v. Carr.  In Garcynzski, officers responded to a call of a man armed with a handgun who was suicidal.  Initially, his location was unknown, but through investigation, officers located him in his vehicle in a secluded parking lot.  Ultimately, a team of sheriff’s deputies rushed the car weapons drawn and ordered Garcynzski to drop his gun, which he initially pointed at his own head.  Deputies then testified that Garcynzski refused to drop his gun and instead began to swing it around in their direction.  They fired their weapons, killing him.  Garcynzski’s estate, in a lawsuit alleging and unreasonable seizure under the Fourth Amendment, argued that Garcynzski never pointed the gun at the officers.

The Eleventh Circuit Court of Appeals stated:

Even if we assumed that Garczynski did not point his gun in the officers’ direction, the fact that Garczynski did not comply with the officers’ repeated commands to drop his gun justified the use of deadly force under these particular circumstances. See Montoute, 114 F.3d at 185… In contrast to Montoute, Garczynski had not yet fired his gun and was not attempting to escape. As in Montoute,however, the officers did not have control over Garczynski and there was nothing to prevent him from shooting at the officers in an instant.  The officers could reasonably believe that the weapon was loaded, as it actually was, given Garczynski’s expressed intent to commit suicide. As in Montoute,Garczynski repeatedly disobeyed the officers’ orders, first to show his hands and then to drop his gun. These factors, even assuming that Garczynski never pointed the gun at the officers, provided a sufficient basis for the officers reasonably to believe that Garczynski posed an immediate risk of serious harm to them. [vii] [emphasis added]

As such, in Garczynski, the Eleventh Circuit held that “the officers’ use of force in dealing with an armed and potentially suicidal individual was objectively reasonable in this case.” [viii]  Therefore, summary judgment for the deputies was proper on the Fourth Amendment excessive force claim.

In conclusion, based upon the cases discussed from the Eleventh Circuit, we see that deadly force can be reasonable under the Fourth Amendment in some circumstances even where the suspect does not actually their weapon at officers.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.



[i] 114 F.3d 181 (11th Cir. 1997)

[ii] Id. at 182-183

[iii] Id. at 184

[iv] Id. at 185

[v] Id.

[vi] 573 F.3d 1158 (11th Cir. 2009)

[vii] Id. at 1169

[viii] Id. at 1171

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