Police officer Steven Carr shot Francis Montoute in the buttock in order to apprehend him. Montoute filed a 42 U.S.C. § 1983 lawsuit against Carr and others alleging that Carr had violated Montoute’s constitutional rights by using excessive force to arrest him. After the district court denied Carr’s qualified immunity issue summary judgment motion, Carr brought this interlocutory appeal. Agreeing with his contention that he is entitled to qualified immunity, we reverse.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
In reviewing
de novo
a defendant’s summary judgment motion, we are required to view the facts, which are drawn from the pleadings, affidavits, and depositions, in the light most favorable to the plaintiff.
Swint v. City of Wadley,
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.” 1
*183 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. 2 He walked or ran past Sergeant Carr, and once past Carr he began running away. He ran down аn 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, Montoutе 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. 3
Montoute filed a 42 U.S.C. § 1983 lawsuit against Sergeant Cаrr and another defendant alleging that Carr had used excessive force to arrest him, and had thereby violated his Fourth Amendment right to be free from unreasonable searches and seizures. Carr raised the defense of qualified immunity and filed a motion for summary judgment. The district court denied Carr’s motiоn, stating that there were disputed issues of material fact regarding whether Montoute had ever turned to face Carr. The court concluded that if Montoute had his back turned and was running away, “it is questionable as to whether defendant Carr could reasonably believe that [Montoute] posed a serious threat to him or others.” Carr then filed this interlocutory appeal.
II. INTERLOCUTORY JURISDICTION AND STANDARD OF REVIEW
We have interlocutory jurisdiction over issues of law that form the basis for a denial of summary judgment on qualified immunity grounds.
See Behrens v. Pelletier,
-U.S.-,-,
III. ANALYSIS
A. THE QUALIFIED IMMUNITY STANDARD
On April 11, 1993, the date Sergeant Carr shot Montoute, the law regarding the use of excessive force to apprehend fleeing suspects was clearly established. The Supreme Court had held that an excessive force claim against a law enforcement officer must be analyzed under the Fourth Amendment and its reasonableness standard.
Graham v. Connor,
Because possession of a sawed-off shotgun is a felony under Florida law, and Montoute concedes he was holding one as he fled, he
*184
was unquestionably a fleeing felon suspect. 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 seriоus physical injury, either to the officer or to others.”
Tennessee v. Garner,
In order to be entitled to qualified immunity from a Fourth Amendment claim, an officer need not have aсtual 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,
We have repeatedly held that because only arguable probable cause is required, the inquiry is not whether probable cause actually existed, but instead whether an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed.
See, e.g., Hunter v. Bryant,
One additional point about the applicable law needs to be mаde. Once an officer or official has raised the defense of qualified immunity, the burden of persuasion as to that issue is on the plaintiff.
See, e.g., Suissa v. Fulton County,
B. APPLICATION OF THE STANDARD TO THE FACTS
We need not decide whether Montoute has established that no officer reasonably could have believed that Montoute, when shоt, had already committed a crime involving the infliction of serious physical harm. That question addresses one of two alternative grounds for the use of deadly force. The other basis provides a clearer *185 foundation for decision in this case. Montoute has failed to convinсe us that no officer reasonably could have believed that he posed a risk of serious physical injury to Sergeant Carr or others, as he fled with the sawed-off shotgun in hand.
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 thоse 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 Montоute 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 hаs 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 shоtgun. 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. Thеrefore, 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 additiоnal basis for inferring that he presented a risk of serious physical injury to an officer or someone else. 4
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 аnd 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 approachеd the officers. Under the circumstances, Carr is no less entitled to qualified immunity because he shot Montoute later instead of sooner.
Our decision in this case is consistent with the holding in
Harrell v. Decatur County,
IV. CONCLUSION
To defeat Sergeant Carr’s qualified immunity defense, Montoute had the burden of *186 establishing that under the circumstances no reasonable officer could have believed that Montoute posed a risk of serious physical injury to Carr or others. He failed to carry that burden. Acсordingly, we REVERSE the district court’s denial of summary judgment on qualified immunity grounds and REMAND for proceedings consistent with this opinion.
Notes
. Montoute’s story, which we accept as true for present purposes, is that before he fired the shotgun he had taken it away from some fighting youths, put two shells into it, and fired it once *183 into the air. However, there is no evidence that Sergeant Carr knew any of that. Instead, the evidence is that moments after hearing a shotgun blast Carr saw Montoute leaving the scene with a sawed-off shotgun in his hand.
. At his deposition, Montoute first said that he did not give up the shotgun because the officer had a gun on him, and “I think maybe he kill me too.” Later in his deposition, Montoute said that he did not drop the shotgun as ordered by the officers, because if he had done so the youths from whom he had gotten the weapon would have taken it back. He conceded, however, that he came within five or six feet of an officer and he did not explain why he did not simply hand the shotgun to the officers or drop it at their feet. More importantly for present purposes, even if Montoute’s post-hoc explanation is accepted as true, the fact remains that hе never attempted to communicate that explanation, or any other one, to the officers.
. Sergeant Carr stated to the contrary in his affidavit, but we take the evidence in the light most favorable to Montoute.
. Sergeant Carr recognized Montoute as someone who lived in Sebring, but that fact does not lessen the danger Montoute posed. Montoute testified that he frequently broke up fights, and one of his witnesses testified that he (that witness) had never known Montoute to be violent. There is no evidence that Sergeant Carr was aware of Montoute’s peаcemaking behavior on prior occasions, nor do we believe that it would make any difference in our analysis if he had been aware of it. Peacemakers usually do not carry 12-gauge, sawed-off, pump shotguns, and a person can be killed by a fleeing felon suspect who previously had a good reputation.