The “objectively reasonable” law enforcement officer knows that foot pursuits of armed and dangerous fleeing felons are inherently unsafe and extremely dangerous.
Extreme danger is present in these pursuits for several reasons. First, the concept of the “deadly reactionary gap” frequently enters the picture in foot pursuits of armed felons. As found in “The Tempe Study” once a bad guy has decided to fire a handgun, it takes .31 of a second to fire the first shot. Multiple additional shots can be delivered at quarter-second intervals.
Picture a fleeing suspect, firearm in hand, running from the pursuing officer. Picture the officer, firearm in hand (or holstered), running in an attempt to catch the suspect. Suddenly, the suspect, having already made up his mind to kill the officer, turns and fires multiple rounds. In 1.06 seconds, four shots have left the suspect’s firearm. Before the pursuing officer can return fire multiple rounds are directed toward him/her.
The second reason that pursuing armed fleeing felons is so dangerous is the likelihood that the armed fleeing felon will adopt a hide and ambush strategy. Foot pursuits of armed suspects provide numerous opportunities for the suspect to hide and lie in wait for the pursuing officer. They can wait until the officer passes them by and shoot them from behind. I am aware of many situations where this has happened to the eternal detriment of the pursuing officer.
A third reason why pursuit of armed fleeing felons is inherently dangerous involves the deadly threat presented to other officers who attempt to cut the fleeing suspect off from another direction and are unaware that he is holding a firearm. Suppose for example that officers pursuing the suspect from behind see him holding a firearm but are unable to communicate the observation to officers on the perimeter or to officers trying to intercept him or cut him off. Those officers may be suddenly confronted by a suspect ready to shoot them before they can adequately defend themselves.
The Case of Montoute v. Carr
The Federal Court of Appeals for the Eleventh Circuit captured the essence of this significant danger in its Montoute v. Carr decision which deals directly with law enforcement use of deadly force against an armed fleeing felon.
In Sebring, Florida, police officers responded to several 911 calls reporting that a fight, involving multiple parties and gunfire, was occurring at a local bar. Upon arrival, Sergeant Steven Carr heard a shotgun being fired. He spotted Francis Montoute moving quickly toward him. Montoute was carrying a sawed-off 12-gauge pump-action shotgun with the muzzle pointed toward the ground.
Carr and a fellow officer repeatedly ordered Montoute to drop the shotgun. Montoute ignored them and told the officers that he was on their side and had taken the gun from someone else. Montoute moved quickly past the officers without dropping the weapon. He began to run and headed down a nearby alley with the gun still in his hand. Carr began to follow Montoute, stopped and fired two shots at Montoute from behind. One of those shots hit Montoute in his left buttock.
Montoute sued Carr in the Federal District Court and alleged that he was the victim of police use of excessive force. The Federal District Judge denied Carr’s dismissal motion and explained that if Montoute was shot in the back it was questionable as to whether Carr could reasonably believe that Montoute posed a serious threat to him or others.
The Eleventh Circuit Court of Appeals reversed and ordered dismissal of the case. The court observed that even Montoute agreed that it would have been legally permissible for Carr to shoot him as he was approaching the officer after he refused orders to drop the shotgun. However, Montoute claimed that once he passed Carr with the weapon still in his hand, he no longer presented a danger of serious bodily harm to the officer. The Eleventh Circuit disagreed and ruled that the danger to Carr and the other officer continued after Montoute passed them by.
The court observed that once Montoute passed the officers and started to run, there was nothing to prevent him from turning and pointing his firearm at the officers in a split second. The court explained that when an officer has ordered a suspect to drop his weapon and his order is ignored, the officer is not required to wait until an armed and dangerous felon has drawn a bead upon him or others before using deadly force. The court explained further that Carr could reasonably have believed that Montoute might wheel around and fire the shotgun at him. Here, the court appears to grasp the concept of the reactionary gap and its inherent danger to officers.
The court also noted that Montoute could have taken cover behind a parked car or hidden on the side of a building and shot the officers as they ran by. (Here, the court comprehends the dangerous concept of hide and ambush). The court observed that if either of these things had happened, Montoute would have presented a greater danger to the officers than when they first saw him approaching with the shotgun at his side.
The court ruled that shooting Montoute — although in the back and from behind — was lawful and in full compliance with the Supreme Court’s decision in Tennessee v. Garner.
