The information in this article is presented for discussion. It is not legal advice and no actions should be taken based on it. You should contact your department’s legal team for guidance.
In 1997 the 11th U.S. Circuit Court of Appeals ruled in the case of Montoute v. Carr, involving a police officer shooting a person armed with a sawed-off shotgun who had not pointed the shotgun at the officer. In fact, Montoute was in the process of running away from the officer when he was shot.
In the last year the media attention on officer involved shootings (OIS) has exploded into a volatile mixture of inflammatory rhetoric. From unscrupulous national media bent on boosting ratings, to every circus act community organizer and protestor, the current atmosphere surrounding the police is very hostile. In this last year there have been police shootings that were completely justified, those requiring further review, and unfortunately those that appear to be unlawful. With such a pivotal movement in the attitude towards the police, the BlueSheepDog Crew wanted to examine this case for its pertinence in understanding the lawful uses of deadly force by police.
EDITOR’S NOTE: This article is a continuation of BlueSheepDog’s commitment to present important Federal and State Court decisions that guide the actions of officers in performing their duties. The BlueSheepDog Crew are not attorneys, and nothing presented here should be considered legal advice by BlueSheepDog in any manner. The information provided here is pulled directly from the respective Court’s published opinion. Officers are encouraged to study the ruling and take note on how the Court ruled on officer actions. However, BlueSheepDog highly recommends that officers take this insight and consult their local Prosecutors or Department legal advisor; as well as, conforming to Departmental policy.
Montoute v. Carr
This case is over 20 years old, but its legal precedent is still pertinent to the events of today. In the early morning hours of April 11, 1993 a large crowd of around 100 people were gathered around a local bar in Sebring, Florida. The police department received several 911 calls of fights and gunshots. Several Sebring Police officers responded to the scene, including Sgt. Carr, the respondent in this case.
After arriving on scene, Sgt. Carr heard what he believed to be the discharge of a shotgun down the street. As he examined the area, Sgt. Carr observed Montoute walking or running towards him while carrying a sawed-off 12-gauge shotgun. The shotgun was in Montoute’s right hand and was pointed towards the ground. Like most States, Florida prohibits the possession of a sawed-off shotgun, and the offense is a felony. As Montoute approached he stated, “don’t shoot me, officer. I on your side, man, I just take the gun from the guy.”
Sgt. Carr and another officer repeatedly ordered Montoute to drop the shotgun, but for some reason Montoute refused to comply. Montoute gave no reason for his refusal, and instead continued to walk off with the shotgun. As he passed the officers, Montoute began to run away. Sgt. Carr engaged in a foot pursuit of Montoute, and fired one shot from his handgun that missed. Montoute did not stop, but continued to run away onto another downtown street towards a parked car. Sgt. Carr fired a second shot that struck Montoute in the left buttock. After passing the officers, Montoute had never turned around to face the officers and had never pointed the shotgun at anyone. Montoute was apprehended and charged with felony offenses.
Federal Lawsuit for 42 U.S.C. 1983 Violation
Montoute filed a Federal lawsuit against Sgt. Carr for violating his 4th Amendment rights when he shot him. These lawsuits fall under United States Code, Chapter 42, Section 1983 in regards to government officials violating civilian’s guaranteed rights. Sgt. Carr responded by filing a motion for summary judgment, asserting qualified immunity as a defense.
Summary Judgment – This is judgment on the case by the trial judge, before the case has gone to trial. This judgment agrees with one side of the case, and can be based on the totality of the facts, or enough facts on one part that the judge reasonably feels that case is without merit.
Qualified Immunity – Balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly, and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. Specifically, it protects government officials from lawsuits alleging that they violated plaintiffs’ rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.
The United States District Court denied Sgt. Carr a summary judgment on qualified immunity, holding that since Montoute had never faced or pointed the shotgun at Sgt. Carr, it was a question for trial whether Montoute posed a serious threat to the officer or others. In response, Sgt. Carr wisely appealed the U.S. District Court’s denial of summary judgment to the U.S. 11th Circuit Court of Appeals.
Appeal to the U.S. 11th Circuit Court of Appeals
In the very beginning of the appeal review, the 11th Circuit noted that the shotgun possessed by Montoute was sawed off, and his possession of that shotgun was a felony in and of itself. Therefore, when Montoute ran from the officers he was a “fleeing felon” in the eyes of the law. The Court then reasoned:
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”. Thus, if the suspect threatens to 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.” Tennessee v. Garner (1985).
The 11th Circuit reasoned that there were two possible ways to justify deadly force under Tennessee v. Garner:
- Officer has probable cause to believe the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm and the force is necessary to prevent escape.
- 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 11th Circuit then ruled that the second application of Tennessee v. Garner was the most applicable to the case in Montoute v. Carr. The Court then went on to note that Montoute did not argue that the officers would have been justified in using deadly force against him as he approached him, but that once he ran away (with his back to the officers) then they did not have justifiable reasons to use deadly force.
Thankfully the Appellate Court correctly reasoned, “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 [Sgt.] Carr.”
It is important to note, the 11th Circuit Court of Appeals fully acknowledged that Montoute did not turn and face Sgt. Carr after he began running away, and never pointed the sawed-off shotgun at anyone.
However, the 11th Circuit Court wisely reasoned that there was nothing to prevent him from doing either of those threatening actions, in a split second. The Court went on to rule:
“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 [not provided to this point – perhaps proven later in the police investigation] while in a crowd of people in a near-riot situation. He was armed with a 12-guage, 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 [where this case originated]. 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 went on to point out that a reasonable and prudent officer would know that a pump shotgun is capable of holding more than one shell, so the fact that Montoute had fired the shotgun once did not alleviate the threat from the weapon. In fact, once recovered, the shotgun did in fact contain more live ammunition. In its final decision the 11th Circuit Court ruled that Sgt. Carr was entitled to summary judgement based on qualified immunity:
“In view of all 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.”
Important Federal Precedence
The 11th Circuit Court, like other U.S. Courts of Appeal, have established defining legal precedent in regards to the U.S. Supreme Court decision in Tennessee v. Garner (1985). This guidance provides officers a clearer picture of the lawful use of deadly force in regards to armed persons, and fleeing felons.
When orders to drop a gun have gone unheeded, officers are not required to wait until an armed and dangerous felon has drawn a bead on the officer or others (pointed the gun at them) before using deadly force against them.
This important clarification on the use of deadly force should provide officers some breathing room when confronted with armed, or fleeing felons that pose a serious risk to physical injury or death. These Court rulings should be on a short list of references for police public information officers, Commanders, and Chiefs to report to the media and civilians groups alike in the aftermath of an officer-involved shooting (OIS). By understanding the Court’s reasoning, and explaining it in the simplest terms, the justifiable use of deadly force should calm the majority of citizens’ fears or complaints. In addition, it should help reduce the inflammatory media and activist rhetoric to nothing more than race-baiting and hate-mongering.
Our Duty as Citizens of a Republic
As Americans and citizens of a republic, we all (police included) must value and hold our Constitutionally protected rights in the highest regards. However, we must not abandon the rule of law, and allow those who willfully break our laws to escape culpability. With the recent animosity towards police, it is important to understand the vast majority of police-citizen encounters are peaceful. A very small percentage of the overall police-citizen contacts involve a physical arrest, and an even tinier fraction involve any kind of physical or threatened force by the police.
When police officers use deadly force there is always an investigation into the legality of that force. There is an internal investigation within the police department, and an external investigation by the County Prosecutor and perhaps a Grand Jury of citizens. Again, we find that in all but a few cases, police officers are exonerated showing they are exercising due caution in using deadly force. Understanding these facts should encourage us all to take a moment of pause, and reflect on all the facts of the case (not the initially charged reports), rather than jump on board with the profiteering media or race-baiting activists.