Armed Flight “Plus” Constitutes Reckless Endangerment

US v. Dennings: Dennings, armed with a firearm, tried to rob someone. The man resisted (he hit Dennings in the face) and the gun went off twice, attracting the attention of a nearby police officer. The officer gave chase as Dennings fled, with his right hand “not empty and freely swinging like his left hand” and the officer “unable to determine if Dennings was digging in his pocket or holding onto something.” The officer caught Dennings when he fell, but Dennings continued to resist and was “hesitant to relinquish control” of his right arm. The officer recovered a firearm from Dennings’ jacket pocket. For his trouble Dennings was convicted of being a felon in possession of a firearm. At sentencing, he was assessed a two-level enhancement for reckless endangerment based on his flight from the officer and was sentenced to 110 months in prison.

On appeal the Fourth Circuit affirmed the application of the two-level enhancement. Dennings argued that because “instinctive flight” is not enough to warrant application of the enhancement, such flight while possessing a firearm (but not doing anything with it) should not, either, because such flight is the safest way to flee while armed. The court disagreed, concluding that situations where a party is armed, or there is evidence he might be armed, still present a sufficient risk of harm to justify imposing the enhancement. The court did stress that it was not address pure armed instinctive flight, because Dennings’ “situating involved flight-plus-something more,” particularly the shots fired and the other elements of the chase.