Franklin v. Popovich

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

SHERIKA FRANKLIN,

Plaintiff,

v. Case No: 6:21-cv-383-PGB-DCI

JASON POPOVICH,

Defendant.

/

ORDER

This cause comes before the Court on the Defendant Jason Popovich’s

Motion for Summary Judgment (Doc. 22 (the “Motion”)), Plaintiff Sherika

Franklin’s response in opposition (Doc. 31), and Defendant’s corresponding reply

(Doc. 33). Upon consideration, the Motion is due to be granted.

I. BACKGROUND1

This dispute stems from the 2017 fatal shooting of Christopher Redding, Jr.

(the “Decedent”) by Defendant, an Orange County Sheriff Deputy. Defendant is

1 The following facts are not reasonably in dispute based on the record evidence unless

indicated otherwise. In instances where there is a genuine dispute of material fact, the Court

will indicate each parties’ contrary position. The parties failed to file a jointly signed

stipulation of agreed material facts along with the summary judgment briefing as required by

the Court’s Case Management Scheduling Order. (Doc. 16, p. 8). The Court normally relies on

this document to focus the Court’s analysis on disputed rather than undisputed facts.

However, this omission is the fault of both parties since both are required to make this filing;

the Court nevertheless finds itself capable of sifting through the admissible record. (Id. (“On

or before the date on which the memorandum in opposition is due, the parties SHALL also

file a stipulation of agreed material facts signed by the movant and the parties opposing

summary judgment. Material facts set forth in the stipulation will be deemed admitted for the

purposes of the motion.” (emphasis in original)). Accordingly, the Court will still consider the

Motion.

a member of a specialized unit within the Orange County Sheriff’s Office trained to

surveil and apprehend felony suspects known or regarded to be especially violent

or dangerous named the Investigative Support Squad (the “ISS Unit”). (Doc. 22-

7, ¶¶ 3–4). The ISS Unit wanted Defendant, a 20-year-old male, in connection with

a series of strong-arm robberies and burglaries. (Doc. 22-3, 21:2–10; Doc. 22-7, ¶¶

4–8).2 The ISS Unit arrested Redding on January 26, 2017 and transported him

to the Orange County Jail after the investigating detectives developed probable

cause to charge Redding with these crimes. (Doc. 22-2, 8:4–9:10; Doc. 22-3, 7:17–

8:8; Doc. 22-7, ¶¶ 4–8). While Decedent was ineligible for bond, he was released

in error a few days later. (Doc. 22-12). A new warrant was issued for Decedent, this

time based on parole violations flowing from the strong-arm robbery and burglary

charges. (Id.). Decedent had previously been conditionally released from prison on

supervised probation for prior felony convictions of at least aggravated battery

with a firearm. (Doc. 22-2, 8:10-9:4; Doc. 22-3, 21:2–10, 7:17–8:8; Doc. 22-12).

The new warrant was marked “Violent Offender of Special Concern.” (Doc. 22-12;

Doc. 22-13).

On February 28, 2017, the ISS Unit received information that Decedent was

at the Park Central Apartments. (Doc. 22-2, 7:19–8:5; Doc. 22-7, ¶¶ 7–11).

2 Plaintiff argues that information received by the ISS Unit from unidentified officers or witnesses

is inadmissible hearsay. (Doc. 31, pp. 2–4). While made by unidentified out of court declarants,

the statements are not offered to prove their substantive truth but instead to provide contextual

background for the officer’s state of mind on the day in question. As such, these and other similar

statements challenged by Plaintiff are admissible. U.S. v. Price, 792 F.2d 994, 996 (11th Cir. 1986)

(non-hearsay informant’s statements offered to put law enforcement statements into context).

Accordingly, the ISS Unit, comprised of Sergeant Rick Stelter (“Sergeant

Stelter”), Deputy Chris Marcus (“Deputy Marcus”), Deputy John Leone

(“Deputy Leone”), Deputy Javier Alvaro (“Deputy Alvaro”) and Defendant,

was dispatched to the Park Central Apartments to locate and apprehend Decedent.

(Doc. 22-1, 26:1–11; Doc 22-3, 12:1–15). Each member of the ISS Unit received

word over the radio that Decedent was armed with a .40 caliber pistol and had

resolved not to go back to jail. (Doc. 22-2, 7:19–8:5, 12:14–13:2; Doc. 22-4, 10:25–

11:6; Doc. 22-5, 12:7–11; Doc. 22-7, ¶¶ 9–11). At some point, the ISS Unit split up,

and Defendant searched for Decedent away from Sergeant Stelter, Deputy Leone,

Deputy Alvaro, and Deputy Marcus who together began to surveil a grey Ford

Focus believed to be connected with Decedent. (Doc. 22-1, 28:16–25; Doc. 22-2,

11:17–12:2, 17:8–18:17).

Decedent emerged and walked toward the Ford Focus with an adult female

and two infant children.3 (Doc. 22-2, 18:19–19:11; Doc. 22-5, 14:15–14:22). At

some point when the party was near or in the car, Sergeant Stelter gave the

3 Plaintiff cites to a Florida Department of Law Enforcement (“FDLE”) report, which took

statements from several witnesses who were not deposed in this case, including the adult

female referenced here. (Doc. 31-3). The Court agrees with Defendant that the witness

statement summaries in the FDLE report, which are not based on the author’s own

contemporaneous observations, are inadmissible hearsay unless some exception allows them

in. See Doe v. City of Miami Gardens, 389 F.Supp.3d 1118, 1123–24 (S.D. Fla. 2019) (citing

United Techs. Corp. v. Mazer, 556 F.3d 1260, 1278 (11th Cir. 2009) (concluding at summary

judgment stage that FDLE report containing summaries of conversations with and sworn

statements by non-parties is inadmissible hearsay within hearsay)). Plaintiff fails to point out

any exception that would make these statements admissible. Even so, the Court reviewed the

FDLE report and notes that its contents, if admissible, would not change the Court’s ultimate

conclusions.

command to “takedown” Decedent. (Doc. 22-2, 19:14–20:10; Doc 22-5, 14:25–

15:9).

Deputies Leone and Alvaro activated their emergency lights, closed in on the

Ford Focus, stepped out of their vehicle with a pistol and a shotgun respectively,

and demanded Decedent show his hands. (Doc. 22-2, 19:5–11; Doc. 22-4, 40:1–

21; Doc. 22-5, 52:1–52:17). At some point, Sergeant Stelter also got out of a vehicle

and gave the same command. (Doc. 22-2, 20:23–22:13). Decedent did not emerge

from the car or put both of his hands in the air despite commands from the officers

to do so, although he did raise his left hand; Sergeant Stelter yelled at some point,

“Show me your right hand.” (Id.). It is not clear from the record who fired first, but

twelve to fifteen seconds later, a bullet struck Sergeant Stelter. (Id. 23:1–25:25).

Deputies Marcus, Alvaro, and Leone returned fire, but nothing in the record

indicates that Sergeant Stelter was struck by friendly fire. (Doc. 22-3, 14:1–18:12;

Doc. 22-4, 15:10–19:13; Doc. 22-5, 26:9–27:6). While Deputy Marcus stayed

behind to aid Sergeant Stelter, (Doc. 22-3, 14:15–15:12), Deputies Alvaro and

Leone pursued Decedent east through or near a parking lot and then north through

or near another parking lot; the deputies testified they ran in and out of cars for

cover while they pursued Decedent who they still believed either was actively

shooting at them or was capable of doing so. (Doc. 22-4, 18:13–22:20; Doc. 22-5,

28:1–30:17, 32:20–33:12, 70:5–17; Doc. 22-10).

It is not disputed that Decedent fired at least three bullets from inside the

car and at least two more after exiting the vehicle. (Doc. 31, p. 9). At some point,

Decedent dropped his weapon—either voluntarily or due to a gunshot wound;

regardless, Decedent continued to flee. (Doc. 22-5, 28:1–30:17, 66:15–67:5).

Despite Plaintiff’s unsupported allegations to the contrary, all the pursuing

deputies on the scene testified they did not see Decedent drop the weapon or

realize he no longer carried it. (Doc. 22-1, 30:1–2; Doc. 22-3, 19:16–20:2; Doc. 22-

4, 19:23–20:2; Doc. 31, p. 9). Deputy Leone testified that the deputies’ sight of

Decedent was intermittent as the officers ducked in and out from behind cover as

they pursued him. (Doc. 22-4, 22:23–23:2). The officers later recovered

Decedent’s firearm in the parking lot between where the shooting began and where

Decedent stopped running. (Doc. 22-5, 66:15–67:5).

Defendant drove towards the scene to assist after Sergeant Stelter alerted

the ISS Unit on the radio that he had spotted the Decedent. (Doc. 22-1, 28:16–

28:25). As Defendant approached the area near the Ford Focus, the shooting

began, so when he saw Decedent fire at the officers, Defendant stopped and took

cover behind his car. (Id. 29:10–20, 44:12–22). While moving for cover, Defendant

lost his radio but not before he heard, “Signal 43, Officer Down.” (Id. 45:1–23).

After Decedent fled the Ford Focus, Defendant joined Deputies Alvaro and Leone

in pursuit. (Doc. 22-1, 136:23–137:8). At one point in pursuit, Defendant testified

he saw Decedent “pop[] up violently with his hands together, like with a gun and

start[] to aim at us” after which he took cover and heard several rounds being fired.

(Id. 137:5–8). When Defendant next looked for Decedent from behind cover,

Decedent was already on the ground. (Id. 137:5–19). Defendant believed Decedent

had the gun underneath him because he did not see it lying anywhere near the area

where Decedent had fallen. (Id. 57:4–24; Doc. 22-4, 65:7–66:1). Two minutes

passed from the moment when Decedent was reported down and when the fatal

shots were reported. (Doc. 31-3, p. 3).

Defendant and Deputy Leone approached Decedent who was bloody from at

least eight gunshot wounds. (Id. 67:17–69:12). They did not immediately cuff him

because they did not have personal protective that would allow them to safely and

securely restrain him while doing so. (Id.; Doc. 22-4, 24:11–19). Either Deputy

Leone or Defendant yelled: “Stop moving,” “Remain still,” “Help is on the way,”

and “Keep your hands away from you.” (Doc. 22-4, 54:3–6, 55:9–13). In the

meantime, Deputy Leone and Defendant stood on Decedent’s arms or hands with

their guns drawn to secure him. (Doc. 22-1, 81:13–24, 130:1–131:8, 133:3–133:18,

135:14–136:1; Doc. 22-4, 25:12–15; Doc. 22-6, 9:5–10:6, 7:16–7:18, 14:3–8; Doc.

22-9, 6:20–7:9, 13:10–15).

Deputies Kevin Lynch and Cynthia Homestead arrived around the same

time to assist on the scene, and either Defendant or Deputy Leone asked

Homestead to get gloves in order to secure the Decedent. (Doc. 22-6, 27:2–27:11;

Doc. 22-9, 8:1–8:8). Deputy Homestead did not witness the fatal event because

she was scanning the scene and/or attempting to retrieve personal protective

equipment when it occurred. (Doc. 22-9, 8:16–9:1, 21:12–23, 22:6–23:14).

At some point after the arrival of Deputies Lynch and Homestead, Decedent

yelled “I’m dying,” and made at least a sudden convulsive movement and pulled at

least one of his hands inward towards his body in a way that caused Deputy Leone

to spin away from Decedent. (Doc. 22-1, 104:18–25; Doc. 22-4, 32:9–17; Doc. 22-

6, 9:21–10:6). In response, Defendant fire two fatal shots at Decedent’s head. (Doc.

22-1, 79:19–22, 104:20–25; Doc. 31-4). Defendant testified he believed Decedent

to be reaching for his gun to once again fight back. (Doc. 22-1, 79:19–22, 104:20–

25).

In 2021, Plaintiff Sherika Franklin—the personal representative of the estate

of the Deceased—filed a single-count complaint against Defendant under 42 U.S.C

§ 1983, alleging Defendant’s use of deadly force violated Plaintiff’s Fourth

Amendment right to be free from excessive force. (Doc. 1, ¶¶ 27–33). Defendant

now moves for summary judgment on the basis of qualified immunity and the

factual record before the Court. (Doc. 22). After Plaintiff’s response (Doc. 31) and

Defendant’s reply (Doc. 33), this matter is ripe for review.

II. STANDARD OF REVIEW

To prevail on a summary judgment motion, the movant must show “that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). “An issue of fact is ‘material’ if, under the

applicable substantive law, it might affect the outcome of the case. An issue of fact

is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find

for the nonmoving party.” Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir.

2014).

“[B]ecause the court may only consider evidence that would be admissible

at trial, the court may not consider inadmissible hearsay when deciding a motion

for summary judgment, and the court may strike [] inadmissible portions of the

[record] and consider the rest.” Pashoian v. GTE Directories, 208 F. Supp. 2d

1293, 1297 (M.D. Fla. 2002); see also Taffe v. Wengert, 775 F. App’x 459, 465 (11th

Cir. 2019)4 (“We may consider a hearsay statement in passing on a motion for

summary judgment [only] if the statement could be reduced to admissible

evidence at trial or reduced to admissible form.”) (quotations omitted) (citing

Jones v. UPS Ground Freight, 683 F.3d 1283, 1293−94 (11th Cir. 2012)).

“[W]here the nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made in reliance

solely on the pleadings, depositions, answers to interrogatories, and admissions on

file.” Celotex, 477 U.S. at 323 (internal quotations omitted).

Such a motion, whether or not accompanied by affidavits [or

other admissible record evidence], will be made and

supported as provided in this rule, and Rule 56(e) therefore

requires the nonmoving party to go beyond the pleadings and

by her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific

facts showing that there is a genuine issue for trial.

Id. (internal quotations omitted).

Ultimately, the Court must “view the evidence and all factual inferences

therefrom in the light most favorable to the non-moving party and resolve all

4 “Unpublished opinions are not controlling authority and are persuasive only insofar as their

legal analysis warrants.” Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 (11th

Cir. 2007).

reasonable doubts about the facts in favor of the non-movant.” Davila v. Gladden,

777 F.3d 1198, 1203 (11th Cir. 2015) (quoting Carter v. City of Melbourne, 731 F.3d

1161, 1166 (11th Cir. 2013) (per curiam)). “A mere ‘scintilla’ of evidence supporting

the opposing party’s position will not suffice; there must be enough of a showing

that the jury could reasonably find for that party.” Brooks v. Cnty. Comm’n of

Jefferson Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006) (quoting Walker v. Darby,

911 F.2d 1573, 1577 (11th Cir. 1990)). Summary judgment should only be granted

“[w]here the record taken as a whole could not lead a rational trier of fact to find

for the non-moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986).

III. DISCUSSION

Defendant argues that qualified immunity protects him from Plaintiff’s

excessive force claim based on the admissible factual record. Plaintiff responds

with three main arguments: (1) Plaintiff does not bear the burden to show qualified

immunity is inapplicable; (2) Plaintiff maintains a genuine dispute of fact exists

regarding whether Defendant applied objectively unreasonable excessive force to

Decedent in violation of the Fourth Amendment; and (3) Plaintiff attempts to show

Decedent’s Fourth Amendment rights were clearly established at the time of the

events in question. However, the Court finds these contentions unavailing for the

following reasons.

A. The Burden of Proof for Qualified Immunity

“Qualified immunity protects government officials performing discretionary

functions from liability if their conduct violates no clearly established statutory or

constitutional rights of which a reasonable person would have known.” Jacoby v.

Baldwin County, 835 F.3d 1338, 1343–44 (11th Cir. 2016). If the government

officials were acting within the scope of their discretionary authority, then the

plaintiff has the burden to show that qualified immunity is inappropriate by

affirmatively putting forward evidence that establishes the government officials

violated their rights and by showing that those rights were clearly established at

the time of the misconduct. Jacoby, 835 F.3d at 1344.

Here, the Court finds there is no genuine dispute that Defendant was acting

within his discretionary authority, and so Plaintiff bears the burden to show

Defendant is not entitled to qualified immunity. To determine whether an

employee was acting within their discretionary authority for the purposes of

qualified immunity, courts in the Eleventh Circuit “ask whether the government

employee was (a) performing a legitimate job-related function (that is, pursuing a

job-related goal), (b) through means that were within his power to utilize.”

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).

Plaintiff argues the Holloman test is inapplicable because the facts there involved

a First Amendment claim, not a Fourth Amendment claim as here. (Doc. 31, p. 13).

However, this attempt to distinguish Holloman fails because both this case and the

Holloman case involve a government official attempting to claim qualified

immunity—the specific basis for the federal cause of action is immaterial. See id.

Defendant was clearly pursuing a job-related goal based on the facts in the record—

that is, arresting Decedent in lieu of his outstanding warrant and securing the area

after a firefight in which another officer had been shot. Plaintiff nevertheless

argues that Defendant was not acting within his discretionary capacity because:

its [sic] clear that Popovich’s discretion [sic] duties would not

allow him to shoot Redding in the back of the head twice

which amounts to an execution while Redding was unarmed

and had been lying on the ground being tortured for at least

two minutes as a result of Deputy Popovich and Deputy Leone

standing on each of Redding’s arms instead of securing him

and providing him with medical attention.

Id. The first problem with this argument is that it is conclusory and unsupported

by citation to the record. Even so, the Holloman court explained why Plaintiff’s

line of reasoning puts the cart before the horse:

One might reasonably believe that violating someone’s

constitutional rights is never a legitimate job-related function

or within the scope of a government official’s authority or

power. As we explained in Harbert Int’l, Inc. v. James, 157

F.3d 1271, 1282 (11th Cir. 1998), however, “the inquiry is not

whether it was within the defendant’s authority to commit the

allegedly illegal act. Framed that way, the inquiry is no more

than an untenable tautology.” In applying each prong of this

test, we look to the general nature of the defendant’s action,

temporarily putting aside the fact that it may have been

committed for an unconstitutional purpose, in an

unconstitutional manner, to an unconstitutional extent, or

under constitutionally inappropriate circumstances.

Consider the first prong of the test—whether the official is

engaged in a legitimate job-related function. In Sims v.

Metropolitan Dade County, 972 F.2d 1230 (11th Cir. 1992),

“we did not ask whether it was within the defendant’s

authority to suspend an employee for an improper reason;

instead, we asked whether [the defendant’s] discretionary

duties included the administration of discipline.” Harbert,

157 F.3d at 1282. Similarly, in assessing whether a police

officer may assert qualified immunity against a Fourth

Amendment claim, we do not ask whether he has the right to

engage in unconstitutional searches and seizures, but whether

engaging in searches and seizures in general is a part of his

job-related powers and responsibilities. See, e.g., Madiwale v.

Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997). Put another way,

to pass the first step of the discretionary function test for

qualified immunity, the defendant must have been

performing a function that, but for the alleged constitutional

infirmity, would have fallen with his legitimate job

description.

370 F.3d at 1266. Here, but for the alleged constitutional infirmity, Defendant

possessed the general authority to apprehend Decedent, a wanted felon, and to

secure the area after a firefight as a lawfully commissioned deputy of the ISS Unit;

there is no genuine dispute that these duties fall within Defendant’s legitimate job

description. (Doc. 22-2, 8:10–9:4; Doc. 31, p. 9); Hunter v. City of Leeds, 941 F.3d

1265, 1278 n.16 (11th Cir. 2019) (“The pursuit and apprehension of suspected

criminals is a core discretionary function of the police.”). As such, Plaintiff bears

the burden to affirmatively defeat Defendant’s assertion of qualified immunity

with admissible record evidence.

B. Qualified Immunity

Qualified immunity shields government officials from suits for damages

unless a plaintiff demonstrates (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the

alleged conduct such that the defendant had fair notice that their conduct was

actionable. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); Crocker v. Beatty, 995

F.3d 1232, 1240 (11th Cir. 2021). Courts “have discretion to decide which of the two

prongs of the qualified[] immunity analysis to tackle first,” and the government

officials are “entitled to qualified immunity if the plaintiff fails to establish either

one.” Ashcroft, 563 U.S. at 735; Jacoby, 835 F.3d at 1344. The Court here will first

address whether Plaintiff has affirmatively produced record evidence that

Defendant violated Decedent’s Fourth Amendment right to be free from excessive

force before turning to whether Decedent’s rights were clearly established at the

time of the events in question.

1. Fourth Amendment Excessive Force Claim

The Fourth Amendment protects against objectively unreasonable searches

and seizures by the government. Graham v. Connor, 490 U.S. 386, 388 (1989).

“Apprehension by deadly force constitutes a seizure.” Wilson v. Parker, 746 F.

App’x 860, 863 (11th Cir. 2018). “Although suspects have a right to be free from

force that is excessive, they are not protected against a use of force that is necessary

in the situation at hand.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 821 (11th Cir.

2010) (quotation omitted). “No precise or ‘rigid preconditions’ exist for

determining when an officer’s use of deadly force is excessive.” Beckman v.

Hamilton, 732 F. App’x 737, 740 (11th Cir. 2018) (citing Scott v. Harris, 550 U.S.

372 (2007)). Rather, when deciding the merits of an excessive force claim on a

motion for summary judgment, courts must determine on a case-by-case basis

whether the force used was objectively reasonable under the totality of the

circumstances based on the admissible record. See Graham, 490 U.S. at 396; see

also Long v. Slaton, 508 F.3d 576, 580 (11th Cir. 2007) (“Because the test of

reasonableness under the Fourth Amendment is not capable of precise definition

or mechanical application, we must slosh our way through the fact bound morass

of reasonableness.”) (quotations, alterations, and citations omitted). However,

“[i]n cases involving [allegations] of excessive force, it is doctrinal gospel that

[courts] do not view an officer’s actions with the 20/20 vision of hindsight.” Shaw

v. City of Selma, 884 F.3d 1093, 1101 (11th Cir. 2018); Garczynski v. Bradshaw,

573 F.3d 1158, 1167 (11th Cir. 2009) (“Our task is not to evaluate what the officers

could or should have done in hindsight. The sole inquiry is whether the officer’s

actions, as taken, were objectively reasonable under all the circumstances.”). As

such, “[t]he calculus of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Graham, 490 U.S. at 396–97. Accordingly,

“[courts] are loath to second-guess the decisions made by police officers in the

field.” Beckman, 732 F. App’x at 741 (quotations and citations omitted). Of course,

courts do not credit an officer’s version of events just because a plaintiff or

decedent cannot personally rebut it. Brown v. Nocco, 788 F. App’x 669, 674 (11th

Cir. 2019) (citing Hinson v. Bias, 927 F.3d 1103, 1118 (11th Cir. 2019)). Instead,

“[w]here circumstantial or other evidence, if believed, would tend to discredit the

police officer’s story, or where such evidence could convince a rational factfinder

that the officer acted unreasonably, we do not simply accept the officer’s account.”

Id. (citations and quotations omitted).

In this case, the Court rejects as baseless Plaintiff’s contentions that

Defendant willfully executed Decedent in retaliation for shooting Officer Stelter

during the initial firefight between the officers and Decedent. Plaintiff failed to

produce one iota of record evidence in support of this claim beyond mere

speculative allegation. Moreover, Defendant’s testimony—that he mistakenly

believed Decedent to still be armed and interpreted Decedent’s movement of at

least one of his arms to be an attempt to reach for this weapon—is consistent with

the rest of the admissible record evidence, Plaintiff’s unsupported allegations

notwithstanding. (Doc. 22-1, 79:19–22, 104:20–25). Consequently, this is not an

instance where the Court is simply crediting the Defendant’s testimony as a police

officer because the Decedent is not present to rebut it. Brown, 788 F. App’x at 674.

While the Court appreciates the difficulty of producing affirmative evidence in

cases such as these where the decedent is no longer present to share their side of

the story, Plaintiff still must bring forward at least some affirmative record

evidence to demonstrate the presence of a genuine dispute regarding material facts

because Plaintiff bears the burden to show qualified immunity is inappropriate.

Plaintiff fails to make this showing with respect to his allegation the Defendant

willfully executed Decedent despite knowledge of his harmlessness.

However, the Court’s inquiry does not end there. Even if there is no genuine

dispute regarding Plaintiff’s most remarkable assertions, the factual question

remains whether, based on circumstantial evidence, Defendant’s deadly use of

force in response to his mistaken belief that Decedent was about to fight back with

a deadly weapon was objectively reasonable.

To aid in this inquiry, the Supreme Court and the Eleventh Circuit have

provided factors to guide courts in their determination of whether an officer’s use

of deadly force was objectively reasonable: (1) the severity of the crime or crimes

at issue; (2) whether an officer has probable cause to believe either that the suspect

poses a threat of serious physical harm to those at the scene or that the suspect has

committed a crime involving the infliction or threatened infliction of serious

physical harm; (3) whether the suspect is actively resisting arrest or attempting to

evade arrest by flight; (4) whether the suspect poses an immediate threat to the

safety of the officers or others; (5) whether the officer reasonably believes the use

of deadly force was necessary to prevent escape or prevent the suspect from

inflicting further serious physical harm; or (6) whether the officers gave some

warning about the possible use of deadly force, if feasible. Graham, 490 U.S. at

396; Tennessee v. Garner, 471 U.S. 1, 11–12 (1985); Spencer v. City of Orlando,

725 F. App’x 928, 931 (11th Cir. 2018); Perez v. Suszczynski, 809 F.3d 1213, 1222

(11th Cir. 2016). Notably, “[a] mechanical application of these factors is not

appropriate” because they are not “prerequisites to the lawful application of deadly

force by an officer seizing a suspect” but instead only some contextual

considerations that may apply differently in each circumstance. See Scott, 550 U.S.

at 382–83; see also Penley v. Eslinger, 605 F.3d 843, 850 (11th Cir. 2010)

(citations and quotations omitted).

Even after applying these factors, genuine disputes of material fact continue

to persist regarding the reasonableness of Defendant’s use of force. First, the

underlying crimes leading up to Defendant’s use of force were extremely severe.

Even before the shootout on February 28, 2017, Decedent was a wanted violent

felon for strong arm robberies and violent felonies. (Doc. 22-3, 21:2–10; Doc. 22-

7, ¶¶ 4–8; Doc. 22-11; Doc. 22-12). After Decedent engaged the police in a firefight

and shot Officer Stelter, Decedent’s underlying crimes were even more grievous.

Second, as a result, Defendant had probable cause to believe both that

Decedent posed a threat of serious physical harm to those at the scene and that the

suspect had committed a crime involving the infliction of serious physical harm.

Third, it is undisputed that Decedent was at least actively resisting

Defendant and Officer Leone’s directives to not move his arms while they arrested

him. While the extent of Decedent’s movements is at least partially in dispute, it is

indisputable that Decedent was not wholly compliant and docile.

Fourth, Decedent certainly posed a threat to the officers and the public when

he engaged in a shootout, but he no longer possessed his gun at the time when he

was shot. While nothing in the record shows that Defendant was aware that

Decedent was no longer armed, the mere fact that Decedent was unarmed creates

a credibility issue which the Court cannot weigh in on at this procedural posture.

In addition, it is an undisputed fact that Decedent’s back was facing Defendant

when Defendant fired (even if, as Defendant asserts, Decedent was beginning to

move his torso upwards and his hands inwards), which is circumstantial evidence

that speaks to the reasonableness of Defendant’s perception of a threat and his

response to it. At the same time, the Court pauses to note that the number of shots

fired and where they hit Decedent’s body is immaterial to the question of

reasonability; instead, the inquiry here is whether it was objectively reasonable for

Defendant to fire his weapon at Decedent at all. Saucier v. Katz, 533 U.S. 194, 205

(2001) (“If an officer reasonably but mistakenly, believed that a suspect was likely

to fight back, . . . the officer would be justified in using more force than in fact was

needed.”); Plumhoff v. Rickard, 572 U.S. 765, 777 (2014) (“[I]f police officers are

justified in firing at a suspect in order to end severe threat to public safety, the

officers need not stop shooting until the threat has ended.” (emphasis added)).

Furthermore, the Court finds it relevant that Decedent had already been shot at

least eight times and was obviously bleeding to the point that the officers required

personal protective equipment to safeguard against blood-borne diseases in order

to fully apprehend Decedent. Be that as it may, Decedent was still able to move at

least somewhat forcefully.

Fifth, whether Defendant reasonably believed the use of deadly force was

necessary to prevent Decedent from inflicting further serious physical harm hinges

on whether it was reasonable for Defendant to believe Decedent armed and/or to

interpret his movements as threatening. Certainly, “[t]he law does not require

officers in a tense and dangerous situation to wait until the moment a suspect uses

a deadly weapon to act to stop the suspect,” Long, 508 F.3d at 581, but here

Decedent no longer actually possessed a deadly weapon and was bleeding from

multiple previous gunshot wounds while lying downward on the ground.

Sixth, it is not disputed in the record that while Decedent was on the ground,

Defendant and/or Officer Leone yelled: “stop moving,” “remain still,” “help is on

the way,” and “keep your hands away from you.” While none of these commands

provide express warning of lethal force, the fact that they were given in short

succession after a firefight tends to indicate they provided effectively similar

notice.

Thus, in sum total, genuine factual disputes still exist such that a reasonable

jury could find either way on the question of the reasonableness of Defendant’s use

of force, but Plaintiff still must demonstrate that Decedent’s rights were clearly

established at the time of the conduct in question. Ashcroft, 563 U.S. at 735.

2. Clearly Established Right

In the Eleventh Circuit, a right can be clearly established in one of three

ways. Crocker, 995 F.3d at 1240. Plaintiffs must point to either (1) “case law with

indistinguishable facts,” (2) “a broad statement of principle within the

Constitution, statute, or case law,” or (3) “conduct so egregious that a

constitutional right was clearly violated, even in the total absence of case law.” Id.

(quoting Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir.

2009)). “Although options two and three may suffice,” the Supreme Court has

warned not to “define clearly established law at a high level of generality.” Id.

(quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (internal quotation marks

omitted)). Moreover, while it is true that in these second and third options there is

no requirement that prior “materially similar” precedential cases exist, Hope v.

Pelzer, 536 U.S. 730, 746 (2002), these “obvious clarity” cases require that the

statute or provision at issue be so clearly violated and the conduct so egregious that

case law is unnecessary for every objectively reasonable government official to

know it would violate federal law. Gaines v. Wardynski, 871 F.3d 1203, 1209 (11th

Cir. 2017). “For that reason, the second and third paths are rarely-trod ones.” Id.

(collecting cases). Thus, when a plaintiff relies on a general rule to argue that the

law is clearly established, that law must clearly and obviously apply to the

circumstances at hand. Crocker, 995 F.3d at 1240 (citing Long, 508 F.3d at 584);

see also Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010) (“[I]f a plaintiff

relies on a general rule, it must be obvious that the general rule applies to the

specific situation in question.”). At summary judgment, the legal question of

whether a defendant is entitled to qualified immunity must be determined under

the version of facts that is most favorable to plaintiff where the record

demonstrates a genuine factual dispute persists. See Lee v. Ferraro, 284 F.3d 1188,

1190 (11th Cir. 2002).

Here, Plaintiff argues that they need not present the Court with “materially

similar” precedent to show qualified immunity is inappropriate. (Doc. 31, p. 12

(citing Hope, 536 U.S. at 739–41)). While generally true, this would require

Plaintiff to demonstrate that this case falls into either option two or three by

putting forward affirmative record evidence that Defendant obviously and clearly

violated Decedent’s rights. Plaintiff’s allegation that Defendant violated Decedent’s

Fourth Amendment “right to be free from excessive use of force” fails on this count

because it describes Decedent’s rights at too high a level of generality. (Id. at p. 13).

Moreover, Plaintiff unsuccessfully attempts to remedy this by further alleging:

Defendant sh[ot] [Decedent] in the back of the head twice

which amounts to an execution while [Decedent] was

unarmed and had been lying on the ground being tortured for

at least two minutes as a result of [Defendant] and Deputy

Leone standing on each of Redding’s arms instead of securing

him and providing him with medical attention.

(Id.). But, as already discussed, Plaintiff failed to produce admissible record

evidence in support of these incendiary allegations, so a finding in Plaintiff’s favor

would instead require an inference that it was objectively unreasonable for

Defendant to shoot Decedent because of his mistaken belief that the indisputably

partially non-compliant Decedent was about to fight back using a deadly weapon.

While the Court finds a reasonable jury could make that inference based on

circumstantial evidence, Plaintiff still bears the burden to show that such law was

clearly established on February 28, 2017 by pointing to “case law with

indistinguishable facts.” Crocker, 995 F.3d at 1240 (citing Gates v. Khokhar, 884

F.3d 1290, 1296 (11th Cir. 2018)).

Put another way, Plaintiff is incorrect that he need not here satisfy the

requirements of option one by pointing to a case from “decisions of the United

States Supreme Court, [the Eleventh Circuit], or the highest court in a state” to

demonstrate the law was clearly established in February 2017. Id.; Jenkins v.

Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997) (noting in the

Eleventh Circuit, statutory or constitutional rights are “clearly established” “only

by decisions of the [United States] Supreme Court, [the] Eleventh Circuit Court of

Appeals, or the highest court of the state where the case arose.”). This high

precedential bar ensures that an officer has “fair notice that [their] conduct was

unlawful,” Brosseau v. Haugen, 543 U.S. 194, 198 (2004), as the contours of the

constitutional right at issue will have been “sufficiently clear that a reasonable

official would understand that what [they were] doing violates that right.” Hope,

536 U.S. at 739 (quotation marks omitted).

The only case that Plaintiff affirmatively proffers to show the law in this area

was clearly established, Perez v. Suszczynski, 809 F.3d 1213 (11th Cir. 2016), is not

on point. In Perez, whether a local police officer was entitled to qualified immunity

after shooting a decedent from behind was also at issue. Id. at 1216. In contrast,

though, the Eleventh Circuit affirmed the district court’s denial of summary

judgment because the estate affirmatively produced evidence that the defendant-

officer was compliant and non-resistant. Id. The Eleventh Circuit dismissed some

of the Perez defendant’s arguments as they were:

effectively challenges to the Estate’s version of events and the

credibility of the Estate’s witnesses. Accordingly, it is worth

noting that, if the Estate’s version of the facts was “inherently

incredible and could not support reasonable inferences

sufficient to create an issue of fact,” Riley v. City of

Montgomery, 104 F.3d 1247, 1251 (11th Cir. 1997), we would

reject it. As the Supreme Court has instructed, “[w]hen

opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version of

the facts for purposes of ruling on a motion for summary

judgment.” See Scott[], 550 U.S. [at] 380 [] (finding appellate

court erred in affirming denial of qualified immunity in an

interlocutory appeal because the plaintiff’s version of events

was not supported by the record).

[In the Perez case], however, there is no evidence clearly

contradicting the Estate’s version of the facts. [The Perez

defendant] offers no evidence that “so utterly discredit[s] [the

Estate’s witnesses’] testimony that no reasonable jury could

believe [the witnesses].” See Morton, 707 F.3d [1276,] 1284

[(11th Cir. 2013)]. Instead, “[t]he record plainly yields sharply

dueling accounts of what happened and why the critical shots

were fired”; it does not “utterly discredit” the Estate’s account.

See id. at 1285. Thus, we are required to credit the Estate’s

account at this stage in the proceedings, accepting the

evidence of the Estate and drawing all justifiable inferences in

its favor. And, in the Estate’s version of events, [the Perez

defendant] shot a compliant, prostrate man in the back “while

having no reason to believe that the man would place anyone's

safety in danger.” See id. at 1282. No reasonable officer would

have used deadly force under these circumstances. Therefore,

[the Perez defendant’s] use of force against [the Perez

decedent]—shooting [the Perez decedent] while he was

prostrate and compliant on the ground—violated [the Perez

decedent’s] Fourth Amendment right to be free from

excessive force.

Perez, 809 F.3d at 1220–21.

Here, however, Plaintiff (as representative of Decedent’s estate) has put

forward an incredible version of the events which is contradicted by the record

evidence. Similar to Perez, Plaintiff alleges Decedent was lying prostrate and

unresistant on the ground in an unthreatening way when he was shot, but unlike

in Perez, Plaintiff has not pointed to witnesses that specifically rebut Defendant’s

and other on-the-scene officer’s claims that the previously armed Decedent who

had the moment before engaged in a shootout with the officers was at least partially

non-compliant and moving in a way the officers believed to indicate an attempt to

fight back. Id. Thus, the Court is not required to credit Plaintiff’s speculative

version of events based on conjecture alone. Scott, 550 U.S. at 380. More

importantly, these factual differences mean the Perez case is materially dissimilar

from this one.

With Plaintiff offering no other potentially indistinguishable case law,

Plaintiff has not carried their burden to show that the law was clearly established

at the time of this incident. Therefore, Defendant is entitled to qualified immunity,

and the Court must grant the Motion on this basis.

IV. CONCLUSION

For the aforementioned reasons, it is ORDERED and ADJUDGED as

follows:

1. The Motion (Doc. 22) is GRANTED;

2. The Complaint (Doc. 1) is DISMISSED WITH PREJUDICE;

3. The Clerk of Court is DIRECTED to close the case.

DONE AND ORDERED in Orlando, Florida on September 26, 2022.

/ / s a——

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties