A Furtive Movement Can Get You Killed

A Furtive Movement Can Get You Killed

A Furtive Movement Can Get You Killed

“Furtive” as defined by many dictionaries is “being shifty; characterized by stealth; surreptitious; sly and underhanded movement; an expression of hidden motives or purposes.” 

In New York City (NYC) in 2003, police officers stopped and frisked 160,851 people and recovered 604 guns. In 2012, there were almost 700,000 people stopped there with 780 guns recovered. More than half of all stops were conducted because the individual displayed “furtive movements” — which is so vague as to be meaningless, according to S. Greenfield in his Criminal Defense Blog. Is this an evisceration of the constitutional right to be left alone? That’s another topic.

Judy Legum on the website thinkprogress.org says that in June 2012 NYC Mayor Michael Bloomberg defended the city’s controversial “stop-and-frisk” policy, saying it helped “take guns off the streets and saves lives.” “Stop-and-frisk” is a policy strategy where officers stop and search “people they consider suspicious.” This is a very subjective judgment call and, of course, one person’s shifty behavior is not recognized as such by another.

Statistics presented by Legum show in 2011, NYC police officers made 685,724 stops as part of the “stop-and-frisk” policy. Of that group, 605,328 people were determined NOT to have engaged in any unlawful behavior. Only 5.37% of all stops in a recent five-year period resulted in an arrest. In short, many people stopped did nothing wrong. Of those frisked in 2011, a weapon was found just 1.9% of the time. Frisks are supposed to be conducted “only when an officer reasonably suspects the person has a weapon.” These stops again were because the individual displayed furtive movement. So this involves much subjective and interpretive “guesses” and what is “reasonable” for one is most certainly not for another. What is furtive for one is not for another.

Do you want to bet your life or someone else’s on uncertain furtive movement? Now think about the implications of this for yourself as a concealed carry weapon licensed individual.

A furtive movement is a movement reasonably consistent with going for a weapon and not reasonably consistent with anything else. It is not an innocent gesture. It is a stealthy and sly movement, possibly toward a gun. We know that the justification for the use of deadly force involves your reasonable and prudent belief that the aggressor has a weapon, is in close proximity to you, made hostile movement or action, and threatens your life and/or serious bodily harm to you. If the “bad guy or gal” is close enough to employ such a weapon, and if his/her actions are consistent with an armed person trying to kill you, then the requirements have been met usually for you to justifiably use deadly force in order to defend your life. We also know the tremendous agony, cost, embarrassment, wasted time, grief, reputation damage, not to mention time in prison and fines, etc. that might result from your incorrect and unreasonable judgment call about that uncertain “furtive” movement. Wow! What’s a law-abiding, legally-licensed carry person to do? What a risk.

Reaching for Wallet“Oops, I’m sorry I killed you” doesn’t count. Yes, you didn’t mean to do it and you are so very sorry it happened, but the guy/gal (or you) is still dead. There is no undelete or redo for the action. There is a large grey area that, should you make the wrong judgment call, can cost you greatly, in many ways. Consider that the movement toward drawing a gun from a back pocket or the back of a waistband is exactly the same movement someone would make toward taking out their handkerchief or their wallet from the back pocket. The movement toward drawing a knife from a front pocket is exactly the same movement one would make in pulling out coins or their keys from the pocket.

In a sad case in point, NYPD police officers mistakenly shot and killed a guy, firing 41 shots and hitting him 19 times. As reported in Wikipedia, Amadou Bailo Diallo was a 23-year-old immigrant from Guinea who was shot and killed in New York City in 1999 by four New York City Police Department plain-clothed officers. He ran from cops and suddenly whirled around and pulled out a black object from behind. The cops “saw” him pull out a gun, yelled “gun”, and opened fire. One cop began backing away from the danger and fell, convincing the other officers that he had been shot. After the “bad guy” was down, officers checked him and found — to their horror — that the guy had simply grabbed his black nylon wallet, supposedly to show his identity, and was unarmed. In this particular case, the officers were acquitted because of the many facts and the way in which the guy turned and thrust out the wallet which would be consistent with a fleeing criminal turning and pulling a gun. Such a very sad situation for everyone involved and those officers must live with this agony and misery the rest of their lives. Be cautious and careful out there!

Hand in PocketAnother sad case happened in 2010 when Erik Scott, a West Point and Duke graduate, went shopping at Costco in Summerlin, Nevada. He was legally carrying a concealed firearm, as permitted by Nevada state law. Witness and officer reports differ on what happened. Allegedly, Scott began acting bizarrely, and would not leave the store. Some accounts indicate Xanax and pain killers were in his system after subsequent testing.

It is not disputed that police were called to Costco, and upon seeing Scott, demanded that he drop his weapon (this was recorded on the 911 call, as well as confirmed by a witness). As Mr. Scott reached for his holstered gun (which never left the holster) to drop his weapon, police shot him 2 times in the chest, 5 times in the back, killing him.) An eyewitness who was right next to Scott claims he didn’t have a gun in his hand or appear to be hostile in any way.

The officers involved in the shooting were subsequently found to be “justified” and were not charged. This case raises many issues: the first one is that of the right to concealed carry. If you can be shot for “acting bizarrely” with a furtive movement while posing no threat to anyone, then effectively, there really is no right to concealed carry. The right does not in fact exist if you have the “right to carry” but can be shot for a furtive movement.

Of course, there are some who justify certain police actions with the fact that the victim was non-compliant and thus deserved to be forced into submission. But in this case, Erik Scott was shot precisely because he was obeying commands to “drop the firearm.” How can one drop a firearm without touching it? Several witnesses saw Mr. Scott reaching for a weapon. There is no doubt the 911 recording reflects officer commands for Scott to drop the weapon. So, it seems as if he was shot for obeying police commands. It was the way he moved and complied. His furtive movement? I guess we will never truly know. We weren’t there and the facts are situational, subjective, and interpretive. Certainly one lesson here is to obey police commands and do so carefully, without any possible furtive movement.

What are your thoughts about furtive movements?

Continued success!

© 2013 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col Ben Findley at [email protected]

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  • Reno Fidel Rodriguez

    It is important when any situations arises when it comes to police is to communicate what you are doing at all times. For example in that situation we may want to communicate to the officer that “sir I am going to take my weapon out of my holster and put it on the ground”. And follow up with him/her by asking them, “is that what you would like for me to do”. If you do not fell comfortable doing that let them know that you would rather lay on the ground and spread eagle and let them remove your gun and put you in cuffs. You are less likely to get shot and killed. It is a dangerous game to play when you start going for your gun. As for me I pray that I do the right thing if this ever was to happen.

  • gym

    It’s a lot of crap. I carried in NYC for 23 years “with a carry permit”. It was issued because of the amount of cash I carried as there were no credit cards and very few checks in my business at that time. 70’s- 90’s. I also had 5 locations, so I was always carrying money. During that time I was stopped 0 times. I also carried OWB in a holster which I wore either on my hip or in a shoulder rig.
    There is no way you can see if someone has a gun because you “think” they look fishy. If that were the case every cop would be searched.

  • Guy Minnis

    Colonel Findley, airplanes fall out ofthe sky. Therefore, I should never get in an airplane.

    I am a retired police officer that served for 33 years on a 300 person police department. I also served in
    the Marine Corps for six years. I have been performing firearms instruction since the mid-1980s and what I would say about “furtive movement” is this – there will always be some officers that screw up, but
    the percentage is miniscule. Like our military personnel we do a damn tough job.

    I have literally pointed my service pistol at least a hundred people and I am sure many more than that and I never shot anyone accidentally. I shot one man with a knife in 1985 and that was totally intentional. In the case of Erik Scott you have, by your own admission, cherry picked the facts that suit your argument. This is the kind of talk I would expect from some liberal Democrat that hates guns and
    gun owners and the cops.

    Thank you for your service to our glorious country, but I think you are way off base on this. Yes it is always possible to get shot by the police when you are not actually armed with a deadly weapon, but when you consider the totality of the facts available to the officer at the time of the shooting, I will wager that 99% of people would also shoot and that includes the very well trained. Cases of shooting unarmed,nonthreatening suspects are rare. Very rare.

    One last thing. Never base an argument on unarmed suspects either. It is perfectly justifiable to
    shoot an unarmed suspect. You have to be able to articulate your reasons for any shooting, but in particular when the suspect has no weapon. A few reasons an unarmed suspect might be shot are:

    ·
    You must fear for your life or the life of another. Or at the very least you fear
    that you were about to suffer serious bodily injury. This is always legal as long as you can
    justify your reasons under the reasonable person standard.

    ·
    The attacker is much bigger and stronger than you including the conditions set forth above.
    ·
    The attacker is known to you to be skilled in empty hands combatives including the conditions set forth above.

    There are multiple attackers including the conditions set forth above.

    The attacker is much younger than you including the conditions set forth above.

    Guy Minnis
    Newburgh, Indiana

    • combustioneer

      You obviously believe that all or a high percentage of LEOs excercise good judgement. That simply is not true. The percentage of intellectually dependabe and emotionally stable cops is the same as the general public. In fact a high percentage officers aren’t suitable for other jobs due to anger potential. They can only get away with those actions if they carry a badge. My sister is a cop. My dad and his brother were cops. They associated with very few of their fellow officers because of the facts previously stated.Yes it is a dangerous job, but don’t be trying to sell me on them being largely of good judgement. The only way to prevent these incidences is to institute rules of engagement. They can’t pull the trigger until the suspect does. If they don’t shoot any better than the cops do (less tan 50% accuracy) they should survive that. It is better for the cop who volunteered to get shot that an innocent individual getting killed by a badge with no real accountability.

      • Impeach BHO Now

        Some (but not all) beat cops have dog meat for brains. They shoot first and THEN create a story that explains away their actions. I know NYPD cops that when on the beat they carried “throw aways” – small .25 Cal Berettas or Saturday Night Specials in their back pockets. Wiped clean inside and out, these would appear next to the perp’s body as proof he/she was carrying. Getting the cheap guns was easy – they would roust petty crooks and keep the weapons! One guy I know made lieutenant before retiring once he got his 30.

        • Red Eye Trucker !!

          There is no such thing as a peace officer any More we are now Under Federalized Enforcement State and metro And some CO Sheriffs DHS Policed States. there are over 5000 Federal penal codes in America Over Riding State Rights Written ??
          Also Troubling since Woodrow Wilson, the brainwashing of America is a Democracy is not So ,Individual Rights Overrides the Notion and our FOUNDING FATHERS wrote it in the Federalist Papers To write the Articles of The US Constitution our Individual Votes count.. Not the Congress nor the Senate but the Reps of US who ask us what to do.!
          An Article in the Federalist Papers written by Madison concurred by Jefferson ,Franklin and George Washington and more The Choice of a UNION, or A Democracy Confederacy/ financed by the banks of England, and Into the Civil War !

          The Colonialist, The UK, troublemakers around the World for Israel, N and S Africa and the Balkans and many More Atrocities and Loved to bank on slavery with the Spaniards !

          Ben Franklin came back after negotiations from France to help Finance the Revolution, and was Convinced by the Liberals even in France that a Democracy is the notion of a forced Gov. of Mob rule from the Financers over Individual peoples. Quote ” A Democracy is where 2 Wolves and a Sheep sit down to discuss what’s for lunch .” Imperialism from Europe to this day Socialized Medicine via a F’ orced TAX Thus Obama Care !

    • Tsanner

      Guy, I think you’ve had a few too many donuts and they have affected your brain. Rarely is it justifiable to shoot an unarmed person If you are a cop and you feel in fear for your life just because someone is bigger than you or there are multiple people…..what do you do? Call for back up you tool!!! I’m no liberal gun grabber! I own several guns and am an extremely good shot and I also know when it is time to call for help. Hopefully someone will draw down on you next time you reach for your wallet then just maybe your brain will move north from it’s present location.

  • Allen Benge

    Like the old comment by a judge about obscenity, “I can’t define it, but I know it when I see it.” I was a deputy sheriff/corporal in Arizona, and I knew what a furtive motion was. I didn’t need eight Philadelphia lawyers to decide the person appeared to be going for a weapon. Training takes care of panic firing, but an officer is perfectly justified in bringing a weapon to bear in the event it is a dangerous move and not an innocent one. Knowing when to pull the trigger is the difference between a good shoot and a wrongful death suit.

    • dave

      Isn’t it odd that our courts regularly declare laws unenforceable or even unconstitutional because some action or qualification specified is too subjective. Yet here we have two cops saying they know what ‘furtive’ means, with no admission that the word is too subjective for us to defend against and for LEOs to be held accountable. At least, Mr. Benge, you do admit the possibility of error and say that you shouldn’t shoot too quickly. Thanks for that much, but I’d still be unhappy about having you draw on me. My pistol is in my back pocket – if you said to drop my weapon, would I survive trying to comply? I wonder.

  • heyrakes

    just another good reason to not let LE have deadly force. they have a tendency to shoot as they are hollering to drop the weapon (weather thee is a weapon or not). this has a lot to do with their training. the emotional appeal to go home after the sift is just that. i would like to go home after my sift also. the LE can and do shoot you with immunity, very seldom are they even charged and have to defend themselves (legally). they already have the law and the coverage of the badge, and lots of bodies. they don’t have to do anything, that would put their lives in danger why do they need lethal force?

  • dave

    My thoughts are that any excuse is better than none at all. It’s bull-hockey.
    *
    A shy person might look away when a cop car drives by with an officer giving him a hard look. If ‘furtive movement’ is an acceptable excuse, the cop and partner could jump out of the car and gun the guy down for looking away.

    • jon

      insane!! NEVER LOOK AWAY FROM A POLICE OFFICER…its like waving a flag..if your dumb enough to do that and refuse to abide by the rules of engagment..then you deserve every thing coming to you..get rid of the idiots…teach your children well on these points..fathers are at fault here in lots of cases..police have job to do..let em do it..get it over with ..get on with your work..next subject….

  • Roger Greaves

    When I was 19, I was ordered out of a car at gunpoint by a Los Angeles County Deputy. He had already extracted the driver, also at gunpoint, cuffed him and placed him in the back seat of the patrol car. While standing facing away from the officer, with my hands on my head and him an undetermined distance away he shouted several questions at me. He asked what I was doing there. He asked where the drugs were. He asked if we had any weapons in the car. I answered each question politely and truthfully, multiple times. But, I did not deliver the answers he wanted. I suppose those qualify as “furtive movements.”

    I was tackled from behind, violently thrown to the ground and held there with a knee in my back and a gun pressed to the back of my head. I am 5’4″ and at the time weighed about 130 pounds. The officer was over six feet and 200+. I posed him no physical threat. While on the ground he informed me and punctuated his statements with several knocks to my head with the muzzle of his gun, that he could “easily get away with popping a piece of shit like you (me).” “Nobody will even ask any serious questions.” And he continued to scream his questions at me. I was terrified and certain that I was going to die. This is the worst of my four felony stops where officers pointed a gun at me. Thankfully I survived. But I’m far from unscathed. Another officer showed up, I was cuffed and searched as was the car. All without consent. Nothing found because there was nothing. We were sent on our way with a get the “F” out of here in lieu of an apology.

    What were our crimes? My car broke down on the I-5 in Norwalk at about 0230. I was on my way home from my job as a security guard. I was still in uniform, a “soft” uniform: tan slacks and a white button down shirt, the blazer was still in my car. I walked into a very bad (from my perspective) neighborhood to find a pay phone (1983, no cell phones.) I called my room mate for a ride and stood under a street light to wait. While waiting, a street person approached and engaged me in conversation. He had a conversation already going with people who weren’t there. I was afraid of him and didn’t want to provoke him so I politely talked to him but kept him at arm’s length. The cop, unseen by me, was watching from cover, I would have welcomed his presence at that moment. Back then I considered cops hard working good guys. When my ride showed up, he passed me by because there were two people where he was looking for one. I shouted at him and ran after the car, crossing a street. He pulled over, I jumped in and we pulled away from the curb only to have the blue and red lights come on a moment later.

    I didn’t cherry pick any facts. These are the facts of my incident. I’ve been associated with cops outside of contacts with them on the streets as well. My son is an Eagle Scout and many cops have kids in scouts. So, there’s the campfire conversations. When cops are talking to cops they are quite candid about their patrol stories and they revel in telling each other of their abuses. I was a range master at my gun club, lots of cops there too. Same thing happens in that social situation. Stories of abuse related with laughter.

    So here I am, 50. Never arrested for anything. Honorably discharged military veteran. Concealed carry permit holder. Well armed and trained. And I fear cops far more than I do any “regular” criminal. Should that really be? Why do “law enforcement” agencies seem to have so many sociopaths? Is there no psychological screening or are they recruited?

  • Josie

    Well apparently based on the few cases that were posed in this article it does not matter whether you conceal or carry but more of who responds to the “furtive” action and how they are prone to act. In Illinois this is new and it will take some time to educate law officers to recognize a true threat and not react needlessly. I do believe officers need to protect themselves but they need to understand and recognize the right of the citizen to conceal and carry which most pose no threat to anyone.

  • Tom87GN

    Whenever I am faced with a situation where law enforcement is asking me to locate documents or other I always tell them what I’m about to do. I can recall being pulled over on my motorcycle at one point for going a little too fast through a small town area. The officer asked me to locate my DL and registration and before I just went rifling through my jacket and pants to find it, I basically just told the man that I had to reach into my coat’s interior pocket to grab my billfold. My brain went right to damage control thinking that if I hadn’t told him what I was doing specifically, his training most likely would have told him that I was reaching for a weapon given where I had to go to get my billfold. Furtive moment i guess. I follow this thought process pretty much every time, just so they don’t get suspicious about any of my actions or movements.

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