Much has been discussed in national news recently about police shooting suspects who are running away. The media rarely provides their audience insight about the Constitutional law that applies in such situations. This often leaves the public outraged because they perceive wrongdoing on the part of the police when, actually, the actions of the officer are supported by court precedent and generally accepted police practice upon which officers are trained. With this in mind, we will first examine general principles regarding police use of force and then we will examine a case that illustrates how the principles are applied.
The United States Supreme Court sets the bar regarding constitutional guidelines for police use of force and how uses of force should be evaluated. The Supreme Court has held that when a police officer uses force on a suspect, the use of force must be evaluated from the perspective of a reasonable officer on the scene. Specifically, in Graham v. Connor,[i] the Supreme Court stated
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.[ii]
What then constitutes the “reasonable officer” standard? This is typically explained to officers by the use of court precedent, also known as caselaw. Officers receive training regarding caselaw, and that serves as a guide for them as they make split-second decisions in rapidly changing incidents.
One of the lead Supreme Court cases taught to law enforcement officers regarding the use of deadly force against fleeing suspects is Tennessee v. Garner.[iii] In Garner, officers received a dispatch regarding a burglary at a residence. When the officer arrived, he saw a male, Edward Garner, fleeing from the residence. The officer later stated that he was “reasonably sure” that Garner was unarmed. The officer ordered Garner to stop, but he fled from the officer. As Garner attempted to climb a fence, the officer shot him. The bullet struck Garner in the back of the head, killing him. The officer stated that he shot Garner based on a Tennessee statute at the time that allowed an officer, after notifying a suspect of his intent to arrest, to use “all the necessary means to effect the arrest.”[iv] The officer stated that if Garner made it over the fence, he was certain he would escape.
In evaluating this use of force under the Fourth Amendment, the Supreme Court held, in part,
A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.[v]
However, the Supreme Court also discussed situations where it would be constitutionally reasonable to use deadly force to apprehend a fleeing suspect. Specifically, the Court stated
Where the officer has [1] probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, [2] if the suspect threatens the officer with a weapon or [3] there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.[vi]
A case from the Eleventh Circuit Court of Appeals, Montoute v. Carr,[vii] provides an example of how Garner’s provisions above are applied by the courts. The facts of Montoute, taken directly from the 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.[viii]
Montoute sued Sergeant Carr and alleged that he used excessive force when he shot him as he was running away. The district court denied the officer’s motion for qualified immunity, and the officer appealed to the Eleventh Circuit Court of Appeals.
The court of appeals first noted that during this incident, Montoute was in possession of a sawed-off shotgun, which is a felony under Florida law. The court of appeals then examined the applicable legal principles from Garner regarding the use of deadly force to apprehend fleeing, dangerous felons. The court 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 “where 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.[ix]
Thus, it is constitutionally permissible to use deadly force if necessary to prevent the escape of a fleeing felony suspect under three circumstances, which are as follows:
(1) If the officer has probable cause to believe that the suspect poses a threat of serious physical injury, either to the officer or to others
(2) If the suspect threatens the officer with a weapon; or
(3) If the officer has probable cause to believe that the suspect has committed a crime involving infliction of serious physical harm.
The officer must give a warning, if feasible.
The court then examined the issue in light of the above guidelines from the Supreme Court. The issue on appeal was whether Sergeant Carr was entitled to qualified immunity for shooting Montoute who was armed with a sawed-off shotgun, running away, and had not pointed the gun at anyone. Regarding the legal standard for qualified immunity, court of appeals stated
In order to be entitled to qualified immunity from a Fourth Amendment claim, an officer need not have actual probable cause but only “arguable probable cause,” i.e., the facts and circumstances must be such that the officer reasonably could have believed that probable cause existed. See Williamson v. Mills, 65 F.3d 155, 158 (11th Cir.1995)…
Even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity.” Hunter, 502 U.S. at 227, 112 S. Ct. at 536 (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3040, 97 L. Ed. 2d 523 (1987))[x]
Thus, the officer does not need to meet the probable cause threshold as long as another reasonable officer in the same situation could have believed probable cause was present. The court then stated that to determine if Sergeant Carr is entitled to qualified immunity, they must decide
[W]hether Montoute has convinced us that at the time Carr shot him no officer reasonably could have believed that Montoute either (1) had committed a crime involving the infliction of serious physical harm, or (2) posed a risk of serious physical injury to Carr or others as he fled.[xi]
The court then focused its analysis on the second point above, particularly whether, at the time Carr shot Montoute, no reasonable officer could have believed that Montoute posed a risk of serious physical injury to Carr or others as he fled. Montoute’s attorney’s conceded that if Sergeant Carr would have shot Montoute while he was walking or running toward the officer, he would be entitled to qualified immunity. However, they argued that since Sergeant Carr did not shoot Montoute until he had passed him and was running away, no officer reasonably could have believed that Montoute continued to pose a risk.
The court of appeals disagreed with Montoute and stated
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. [xii]
The court then discussed the relevant facts of the case and stated
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.
The court then held that Sergeant Carr was entitled to qualified immunity. The court explained
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.[xiii]
Therefore, the court of appeals reversed the district court and held that Sergeant Carr was entitled to qualified immunity from suit in this case.
Practice Pointers:
- The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.
- A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.
- It is constitutionally permissible to use deadly force if necessary to prevent the escape of a fleeing felony suspect under three circumstances, which are as follows:
- If the officer has probable cause to believe that the suspect poses a threat of serious physical injury, either to the officer or to others
- If the suspect threatens the officer with a weapon; or
- If the officer has probable cause to believe that the suspect has committed a crime involving infliction of serious physical harm.
- The officer must give a warning, if feasible.
- 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.
- Use of force cases are very fact-specific. The above practice pointers refer to federal constitutional law, not state-specific law.
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Citations
[i] 490 U.S. 386 (1989)
[ii] Id. at 396 (emphasis added)
[iii] 471 U.S. 1 (1985)
[iv] Id. at 5
[v] Id. at 10 (emphasis added)
[vi] Id. at 11-12 (emphasis added)
[vii] 114 F.3d 181 (1997)
[viii] Id. at 182-183
[ix] Id. at 184 (emphasis added)
[x] Id. (emphasis added)
[xi] Id.
[xii] Id. at 185 (emphasis added)
[xiii] Id. (emphasis added)
