THE WAISTBAND DEFENSE
When the Police Reach for an Excuse
By Professor William Harmening
Washington University in St. Louis
It is a scenario that plays out nightly on the streets of America. A police officer comes across a stolen vehicle, the occupants bail, and a foot pursuit ensues. So many times, the end result of this dangerous drama is a dead suspect, shot in the back after purportedly reaching for their waistband. A few hours later, with a union lawyer at their side, the officer will describe for those tasked with investigating the incident how they feared for their life during the pursuit, and how experience has taught them that a suspect who runs from the police, especially after jumping from a stolen vehicle, will typically be concealing a firearm in their waistband, and that reaching for that area during the pursuit―the type of pants, or how loosely they were being worn, is unimportant―is consistent with someone reaching for a gun. It is a defense that has been used quite successfully in America’s courtrooms, both criminal and civil, and one that continues to be invoked by elected prosecutors as a convenient way to avoid charging an officer.
On this issue, the question that must be answered―a question that quite possibly has never been asked in a critical way―is just how prevalent is the practice among suspects, especially those who attempt to flee on foot, of concealing a firearm in their waistband? Asked another way, is there a correlation between a fleeing suspect reaching for their waistband and the presence of a firearm? The analysis that follows attempts to answer these questions, at least to the extent that the available data allows us to. First, we must define exactly where our focus lies. In the context of foot pursuits where the officer fires their weapon and the suspect is killed, there are three possible sets of circumstances, as follows:
1. The officer knows before firing their weapon that the suspect is armed. This would include cases where the suspect shoots at the officer pursuing them; where the suspect does not fire but has the gun visible in their hand as they run; and where the pursuit is part of an ongoing incident involving the use of a firearm.
2. The officer shoots and kills a suspect without knowing for certain if a firearm is present, and a firearm is in fact found on the suspect’s person.
3. The officer shoots and kills a suspect without knowing for certain if a firearm is present, and the suspect is found to be unarmed.
Only one of these categories is of interest here. Regarding category no. 1, if the officer has foreknowledge that the suspect is armed, then reaching for the waistband is likely a legitimate defense. These cases tell us little about a correlation between reaching for the waistband and the presence of a gun, since a gun will be present either just before or during the pursuit 100% of the time. And regarding category no. 3, we already know there is no correlation here between reaching for the waistband and the presence of a gun, since there was no gun in 100% of the cases. Category no. 2 then cuts down the middle between those cases where there is always a gun, and those where there is never a gun. Here is where our focus is directed. Our research question is this―in those cases where the officer shoots and kills a fleeing suspect, and their only reason for shooting was because the suspect reached for their waistband as they ran, in how many such cases was a gun later found on the suspect’s person? The answer to this question should tell us much about the validity of the waistband defense, and whether police officers should be using deadly force in response to that action when it is unknown if the suspect is armed, and where the foot pursuit is not part of an ongoing incident involving the use of a gun by the suspect.
All fatal police shootings for the year 2017 (n=986) were reviewed to identify those that met two criteria. First, the suspect was shot and killed during a foot pursuit; and second, the suspect was found to be armed with a gun. Once those cases were identified, then an internet search was conducted to review available media accounts and press releases related to each case. The final step then was to identify from those sources which cases fell into category no. 2, as described above (where the officer had no foreknowledge of the gun, and thus made a correct decision regarding the threat based only on the suspect reaching for their waistband as they attempted to flee).
A second part of the analysis included those cases where the officer shot and killed an unarmed suspect during a foot pursuit in order to identify the reasons the officer gave for using deadly force.
The database query identified 79 cases meeting our two criteria. Six of those cases were later found not to have involved a foot pursuit by the police. One case, which listed the victim as “unidentified” could not be located based on the date and department indicated. For the remaining 72 cases, the suspect’s use of the gun was categorized as follows:
Fired at the officers during the pursuit (n=33)
Pointed the gun but did not fire (n=19)
Displayed the gun but did not point (n=16)
No gun displayed, but gun used in ongoing felony incident (n=4)
No gun displayed, no ongoing incident, but suspect reached for their waistband (n=0)
Additionally, a total of 13 cases were found where an unarmed suspect was shot and killed during a foot pursuit. In 7 of those cases the officers reported firing after the suspect reached for their waistband or pocket. Four cases involved a physical struggle with the suspect during which the officers fired, while one case involved a suspect who had previously stated that he would kill any officer who tried to arrest him. Finally, there was one case where the officer reported the presence of a gun on the suspect’s person, however it was later disputed by a security video. No weapon was found, and the officer was criminally charged.
Not a single case was identified where the officer fired their weapon only in response to a suspect reaching for their waistband during a foot pursuit, and a gun was later found on the suspect’s person. We can thus conclude that by itself there is no correlation between a fleeing suspect reaching for their waistband and the presence of a gun on their person. Stated another way, in those cases where an officer shot and killed a fleeing suspect only because they reached for their waistband, those officers were wrong 100% of the time. All were found to be unarmed.
Furthermore, when an officer shoots and kills an unarmed fleeing suspect, it is likely the waistband defense will be invoked. For 2017, in 53.84% of the cases where an unarmed fleeing suspect was killed, the officers offered the waistband defense, or a variation of it, to justify their actions. If you remove the cases where a physical altercation occurred between the officer and suspect during the pursuit, that percentage increases to 77.77%. The bottom line is this, a fleeing suspect who is armed with a gun will almost certainly use it in some manner (shoot, point, display), and an officer who shoots and kills a fleeing suspect for no other stated reason than the suspect reached for their waistband, will likely kill an unarmed person.
 The cases were identified using the Washington Post’s Fatal Police Shootings database. The database allows for a query based on these two criteria.