Sherika Franklin v. Jason Popovich

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13326

____________________

SHERIKA FRANKLIN,

as Personal Representative of the Estate

of Christopher Redding, Jr., the Deceased,

Plaintiff-Appellant,

versus

JASON POPOVICH,

Deputy; in his individual capacity,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

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D.C. Docket No. 6:21-cv-00383-PGB-DCI

____________________

Before JILL PRYOR, BRANCH, and ED CARNES, Circuit Judges.

BRANCH, Circuit Judge:

On February 28, 2017, police went to execute an arrest

warrant for parole violations related to robbery charges on

Christopher Redding. The warrant specifically stated that Redding

was a “Violent Felony Offender of Special Concern.” The officers

spotted Redding exiting an apartment complex and instructed him

to put his hands up and surrender. Instead, he started shooting,

and a brief gunfight ensued, wounding one of the officers. Redding

fled, dropping the gun somewhere in the process, and was

eventually shot several times and fell prone on the ground. Two

officers, including Deputy Jason Popovich, caught up to him and

subdued him. Redding was so bloody from his gunshot wounds

that the deputies had to wait for personal protective equipment

before putting hands on him to cuff him. They stood on his arms

and told him “Stop moving”; “Remain still”; “Help is on the way”;

and “Keep your hands away from you.” After about two minutes,

as other officers went to bring protective gloves and care for the

wounded officer, Redding abruptly yelled “I’m dying” and made a

sudden movement—pulling one of his hands inward toward his

body. Popovich shot Redding twice in the back of the head, killing

him.

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Sherika Franklin filed this 42 U.S.C. § 1983 lawsuit as

Redding’s personal representative, alleging excessive force under

the Fourth Amendment’s unreasonable seizures clause. The

district court granted summary judgment in favor of Popovich on

qualified immunity grounds, holding that, because a reasonable

officer could believe that Redding’s sudden movement was an

attempt to fight back, his case was materially distinguishable from

the cases Franklin relied on to show clearly established law.

After review, and with the benefit of oral argument, we

affirm.

I. Background

A. Factual Background

Redding was wanted by police in connection with a series of

strong-arm robberies. Popovich was a member of a specialized

unit trained to surveil and apprehend violent suspects, the

Investigative Support Squad (“ISS”) Unit. Popovich’s unit

originally arrested Redding in late January 2017, and transported

him to Florida’s Orange County Jail. Redding was mistakenly

released on bond (for which he was not eligible) a few days later.

A new warrant was issued for his arrest. The warrant was marked

“Violent Felony Offender of Special Concern.”

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

Redding was at a certain apartment complex. Popovich’s unit was

dispatched to the apartments to locate and apprehend Redding. In

addition to Popovich, the Unit included Sergeant Rick Stelter,

Deputy Chris Marcus, Deputy John Leone, and Deputy Javier

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Alvaro. The Unit received word over the radio that Redding was

armed and had resolved that he would not go back to jail.

When the Unit arrived at the apartment complex, they split

up, and set up surveillance of a car belonging to an associate of

Redding. While they were watching, Redding (along with a

woman and two young children) emerged from the apartment

complex and walked toward the car.

Sergeant Stelter gave the command to “takedown” Redding,

at which point the officers activated their emergency lights and

emerged from their vehicles—armed and commanding Redding to

show his hands. Redding did not comply, though he did raise his

left hand. Stelter yelled “[s]how me your right hand” and Redding

did not comply.

Seconds later, a bullet struck Sergeant Stelter in the

shoulder. 1 The officers returned fire and Redding fled. While

Deputy Marcus stayed behind to aid Sergeant Stelter, Deputies

1 Franklin points to projectile analysis from a report by the Florida Department

of Law Enforcement about the incident (the “FDLE Report”) in an attempt to

suggest that friendly fire, and not Redding, shot Stelter. This projectile

analysis, she says, “does not include any evidence that the projectile that struck

Deputy Stelter came from Mr. Redding’s gun.” But Franklin’s inference that

Stelter was struck by friendly fire does not follow from the evidence. As the

district court said, “nothing in the record indicates that Sergeant Stelter was

struck by friendly fire.” To the contrary, Deputy Leone testified he saw the

muzzle flash come from inside Redding’s vehicle. Regardless—the fact that

there is not affirmative evidence that the bullet that struck Stelter came from

Redding does not mean that it did not, and it certainly does not mean that no

reasonable officer in the moment could not have believed it did.

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Alvaro, Leone, and Popovich pursued Redding through two

parking lots, running in and out of cars for cover. The deputies

believed that Redding was either actively shooting at them or

capable of doing so.

At some point, Redding dropped his weapon but continued

to flee. 2 Popovich testified that he did not see Redding drop the

weapon and did not realize he no longer had it. 3 Popovich also

testified that, at one point, Redding popped up “with his hands

together”—as though he was aiming a gun—at which point

Popovich took cover and heard shots being fired.

When Popovich next looked up from behind cover, Redding

was on the ground. Popovich testified that he believed Redding

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

anywhere near the area where Redding had fallen. Popovich and

Leone approached Redding where he lay, bloody from several

gunshot wounds. They did not immediately handcuff him because

2 The gun was later recovered in the parking lot between where the shooting

began and where Redding stopped running.

3 Franklin argues that Popovich must have known Redding was unarmed,

suggesting that “at least Deputy Leone” saw Redding drop his firearm, and

thus Popovich also “knew, or should have known[, that] Mr. Redding was

unarmed” because “Popovich should have [seen that fact] as well.” But even

if Leone knew that Redding had dropped his gun, Franklin does not point to

any evidence that Leone told Popovich—and there is no evidence that

Popovich had exactly the same attention and vantage point as Leone. Thus,

the district court correctly rejected these inferences as “unsupported.”

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he was bleeding, and they did not have personal protective

equipment to protect them from any blood borne diseases.

Popovich and Leone told Redding “Stop moving”; “Remain

still”; “Help is on the way”; and “Keep your hands away from you.”

When backup arrived, they asked the additional officers to get

them gloves in order to secure Redding. In the meantime, Leone

and Popovich stood on Redding’s arms to prevent him from

moving while they waited for the gloves, guns drawn and pointed

at Redding.

A few moments later, Redding yelled “I’m dying” and made

a sudden movement, pulling one of his hands inward toward his

body. Popovich fired two shots at Redding’s head, killing him.

Popovich testified he believed Redding was reaching for his gun.

B. Procedural History

Franklin filed this lawsuit as the personal representative of

Redding’s estate. She brought a single claim against Popovich,

alleging that his use of deadly force violated Redding’s clearly

established Fourth Amendment rights (via the Fourteenth

Amendment) under 42 U.S.C. § 1983. Popovich moved for

summary judgment, arguing that he was entitled to qualified

immunity. The district court granted the motion.

The district court concluded that Franklin had shown a

genuine issue of fact about whether Popovich’s use of force was

objectively reasonable under the Fourth Amendment. On the one

hand, the court explained, the crimes leading up to Popovich’s use

of force were “extremely severe”; Redding “was a wanted violent

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felon”; Popovich “had probable cause to believe . . . that [Redding]

posed a threat of serious physical harm to those at the scene”;

Redding “was at least actively resisting . . . directives to not move

his arms” even if “the extent of [Redding’s] movements” was in

dispute; and Popovich had given Redding sufficient notice about

the use of deadly force by commanding him to “stop moving,

remain still . . . and keep your hands away from you.” But on the

other hand, the district court believed that a jury could find

Popovich knew Redding “no longer possessed his gun at the time

when he was shot.”

While “nothing in the record show[ed] that [Popovich] was

aware that [Redding] was no longer armed,” the district court

concluded that “the mere fact that [Redding] was unarmed

create[d] a credibility issue,” which the court had to resolve in

Franklin’s favor at summary judgment. Further, the district court

said, “it is an undisputed fact that [Redding’s] back was facing

[Popovich] when [he] fired . . . which [was] circumstantial evidence

that [spoke] to the reasonableness of [Popovich’s] perception of a

threat and his response to it.” The district court also found it

relevant that Redding “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 [Redding].” Thus, the district

court concluded, because the question of “whether [Popovich]

reasonably believed the use of deadly force was necessary to

prevent [Redding] from inflicting further serious physical harm

hinge[d] on whether it was reasonable for [Popovich] to believe

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[that Redding was] armed and/or to interpret his movements as

threatening,” the dispute about what Redding knew produced a

dispute about whether his use of force was reasonable.

Finally, having concluded that the reasonableness of

Popovich’s use of force was a jury question, the district court found

Popovich was nonetheless entitled to qualified immunity because

Franklin had not shown the shooting violated clearly established

law. The court explained that Franklin would need to show that,

at the time of the shooting, it was clearly established that “it was

objectively unreasonable for [Popovich] to shoot [Redding]

because of his mistaken belief that” Redding, who was “partially

non-compliant,” “was about to fight back using a deadly weapon.”

And “[t]he only case that [Franklin] affirmatively proffer[ed]” to

that end was Perez v. Suszczynski, 809 F.3d 1213 (11th Cir. 2016),

which was factually distinguishable. While Franklin asserted, in a

conclusory manner, that Redding was lying prostrate and

compliant on the ground like the victim in Perez, the court pointed

out that Franklin had no evidence to rebut the officers’ claims that

“the previously armed [Redding,] 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.”

Thus, the court concluded, Franklin had not shown that

Popovich violated clearly established law, and Popovich was

entitled to qualified immunity.

Franklin appealed.

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II. Standard of Review

“We review de novo a grant of summary judgment based on

qualified immunity, construing the facts and drawing all inferences

in the light most favorable to the nonmoving party.” Powell v.

Snook, 25 F.4th 912, 920 (11th Cir.), cert. denied, 143 S. Ct. 110 (2022).

“Summary judgment is appropriate ‘if the movant shows that there

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

entitled to judgment as a matter of law.’” Wade v. United States,

13 F.4th 1217, 1223 (11th Cir. 2021) (quoting Fed. R. Civ. P. 56(a)).

Finally, “[w]e may affirm for any reason supported by the record,

even if not relied upon by the district court.” Glasscox v. City of

Argo, 903 F.3d 1207, 1217 n.12 (11th Cir. 2018) (quotation omitted).

III. Discussion

Franklin argues that the district court erred in granting

summary judgment to Popovich based on qualified immunity. In

particular, she contends that the district court was wrong to

conclude that Popovich had not violated clearly established law in

(purportedly) violating Redding’s right to be free from

unreasonable seizure (here, excessive force). 4 On a careful review,

4 Franklin also raises two other, peripheral arguments.

The first is that the district court erred in refusing to consider witness

statements in the FDLE report indicating (among other things) that Redding

had nothing in his hands (that is—was unarmed) when he fled from the police.

We assume she is correct that the district court should have considered those

statements, but we agree with the district court that it makes no difference.

As we will discuss, the key question here is whether Popovich knew Redding

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however, we agree with the district court that Popovich is entitled

to qualified immunity, albeit for different reasons. We conclude,

contrary to the district court’s assessment, that there is no genuine

dispute of fact that Popovich did not know Redding was unarmed.

As the district court recognized, there is no evidence that Popovich

knew Redding was unarmed. The mere fact that Redding was

unarmed does not mean there is necessarily a fact dispute or

credibility issue as to what Popovich knew, because a reasonable

officer in Popovich’s position could still have believed—in the split-

second between Redding’s sudden movement and the fatal shots—

that Redding was still armed or had another weapon. Thus,

Franklin has not shown a Fourth Amendment violation, and

cannot point to any clearly established law holding that the use of

deadly force was unreasonable in these circumstances.

“The qualified immunity doctrine protects an officer [from

liability under § 1983] unless . . . the law was already established to

such a high degree that every objectively reasonable officer in his

place would be on notice that what he was doing was clearly

unlawful given the circumstances.” Powell, 25 F.4th at 920

(quotation omitted). “The doctrine protects all but the plainly

incompetent or one who is knowingly violating the federal law.”

was unarmed; none of the witness statements (which deal with what others

saw) bear on that question.

The second argument is that the district court construed the facts too

generously in Popovich’s favor. As discussed below, and in footnote 7, we

disagree.

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Id. (quotation omitted). “For qualified immunity to apply, an

officer must first establish that he acted within his discretionary

authority.” Id. (quotation omitted). 5 “Once the officer does that,

the burden shifts to the plaintiff to show that qualified immunity is

not appropriate.” Id. (quotation omitted). “To overcome a

qualified immunity defense where the defendant acted within his

discretionary authority, the plaintiff must show that the

defendant’s actions not only [1] violated one or more constitutional

rights, but also [2] that it was clearly established at the time that

those specific actions did so.” Id.

As discussed, Franklin’s claim here is based on Redding’s

“Fourth Amendment right to be free from excessive force when

[Popovich] fatally shot [Redding].” Perez, 809 F.3d at 1218. 6 The

5 Franklin no longer contests, as she did below, that Popovich was acting

within his discretionary authority.

6 While Popovich does not separately argue that the district court erred in

finding a genuine issue of material fact on the merits of the Fourth

Amendment claim as such, he plainly disputes the conclusion that he knew

Redding was armed, and he argues that this point drives the qualified

immunity analysis. Thus, and because Franklin appeals the final judgment

that Popovich is entitled to qualified immunity, the underlying question of

whether Popovich violated Redding’s constitutional rights is properly before

us.

In Coffin v. Brandau, for example, the district court concluded that, while the

defendants had committed a Fourth Amendment violation, the plaintiff had

not shown their conduct violated clearly established law. 642 F.3d 999, 1003–

04 (11th Cir. 2011) (en banc). After a panel of this court affirmed, we reheard

the case en banc, addressing the merits of the alleged Fourth Amendment

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Fourth Amendment forbids law-enforcement officers from making

“unreasonable . . . seizures.” U.S. Const. amend. IV. Under the

Fourth Amendment, the “apprehension [of a suspect] by the use of

deadly force is a seizure.” Tennessee v. Garner, 471 U.S. 1, 7 (1985).

“An officer may use deadly force when he has probable cause to

believe that the suspect poses a threat of serious physical harm[.]”

Powell, 25 F.4th at 922 (internal punctuation omitted) (quotation

omitted). Further, “proper application” of the Fourth Amendment

to excessive force claims

requires careful attention to the facts and

circumstances of each particular case, including [1]

the severity of the crime at issue, [2] whether the

suspect poses an immediate threat to the safety of the

officers or others, and [3] whether he is actively

resisting arrest or attempting to evade arrest by flight.

Graham v. Connor, 490 U.S. 386, 396 (1989). “And to be clear, the

inquiry is an objective one”—which is to say we ask “whether a

reasonable officer in [Popovich’s] position could have . . .

concluded” that “the circumstances justified the use of deadly

violation as well as the clearly established prong of the qualified immunity

analysis. Id. at 1009–13. We explained that “we are free to address the question

of whether the facts that the plaintiff alleged showed a violation of a

constitutional right or the question of whether the right at issue was clearly

established in the order most appropriate for the case at hand.” Id. at 1006.

Thus, in this case, we exercise our discretion to consider both the qualified

immunity prongs, in order.

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force[.]” Harris-Billups ex rel. Harris v. Anderson, 61 F.4th 1298, 1302

(11th Cir. 2023).

If a plaintiff demonstrates (here for purposes of summary

judgment) a violation of his constitutional rights, he must then

show that the right at issue was clearly established, which he can

do in one of three ways. First, “by pointing to a materially similar

decision of the Supreme Court, of this Court, or of the supreme

court of the state in which the case arose[.]” Powell, 25 F.4th at 920

(quotation omitted). Second, “by establishing that a broader,

clearly established principle should control the novel facts of the

case[.]” Id. (quotation omitted). And third, “by convincing us that

the case is one of those rare ones that fits within the exception of

conduct which so obviously violates th[e] constitution that prior

case law is unnecessary.” Id. (quotation omitted). “Under the

second and third methods, we look for ‘obvious clarity’”—meaning

“a principle or provision so clear that, even without specific

guidance from a decision involving materially similar facts, the

unlawfulness of the officer’s conduct is apparent.” Id. (quoting

Vinyard v. Wilson, 311 F.3d 1340, 1350–51 (11th Cir. 2002)). Under

“all three methods, the salient question is whether the state of the

law at the time of the incident gave the officer fair warning that his

conduct was unlawful.” Id. at 921 (alterations adopted) (quotation

omitted).

Here, Franklin cannot meet her initial burden of showing a

violation of Redding’s constitutional right to be free from

unreasonable (here, excessive) seizure. As the district court

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explained, the underlying crimes for which Redding was being

pursued were serious, violent felonies. Just moments before, and

regardless of whether Redding continued to shoot while fleeing

from police officers, Redding had exchanged gunfire with the

police and possibly shot one of the officers. There is no evidence

that Popovich knew that Redding was unarmed. Finally, and at the

key moment, Redding could at least appear to a reasonable officer

as resisting arrest by pulling his arms (voluntarily or involuntarily,

and for whatever reason) away from the officers standing on them.

Thus, the operative facts are that Redding made a sudden move

after having engaged in a shootout and fled from police, at a time

and place that Popovich could reasonably have believed Redding

was still armed. That is not a Fourth Amendment violation. See,

e.g., Harris-Billups, 61 F.4th at 1302–04 (holding that an officer did

not violate the Fourth Amendment in using deadly force when “a

reasonable officer could . . . have interpreted [the suspect’s] sudden

lurch as the commencement of yet another attack”).7

7 Having ascertained the operative facts under the appropriate standard of

review, we reject Franklin’s argument that the district court improperly

accepted Popovich’s version of the facts rather than her own. See footnote 4,

above. Franklin charges, for example, that the district court “erred in . . . not

considering Redding’s reasonable versions” on such questions as (1) was

Redding still armed; (2) “did he reach or ‘violently’ reach to his body” just

before he was shot; (3) “should Popovich have verified his uncorroborated

belief Mr. Redding was armed;” (4) “should [Popovich] have known or did he

know that . . . Redding was not armed;” and (5) was Redding still a threat after

being shot several times. But as we have explained, even if Redding was in fact

unarmed (and several witnesses saw as much), a reasonable officer in

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The district court, for its part, reached the opposite

conclusion on the theory that (for purposes of summary judgment)

Popovich did know that Redding was still armed. The district court

apparently thought that it was required to draw that inference

simply because of “the mere fact that [Redding] was[, in fact,]

unarmed[.]” In particular, the district court thought this raised “a

credibility issue” that had to be resolved in Franklin’s favor. We

see the logic, but that conclusion is incorrect. Once again—there

is no indication Popovich knew that Redding had dropped the

weapon with which he fired on the officers,8 and even if there were,

Popovich had no way of knowing if Redding had another weapon

before having searched him (which he had not yet done).

Thus, exercising our discretion to consider either prong of

the qualified immunity analysis as appropriate to the circumstances

of this case, see Coffin, 642 F.3d at 1006, 1009–13, we conclude that

Franklin failed to show that Popovich violated Redding’s Fourth

Amendment rights.

Popovich’s position could have believed that Redding was still armed. That

point about knowledge is the key. Franklin’s remaining disagreements with

the district court’s characterization of the facts—along with the statements in

the FDLE report—do not change the state of play about what a reasonable

officer in Popovich’s situation would have known, so they do not materially

change the analysis.

8 This is not to say a suspect dropping a weapon can never give rise to a fact

question about whether an officer saw it happen. We do not suggest, for

example, that a suspect dropping a weapon in plain view of an officer could

not create a fact question about whether the officer saw the suspect do so.

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That being so, Franklin’s remaining arguments fail. Franklin

advances a few theories that Popovich violated Redding’s clearly

established rights but, properly construing the facts, none has

merit. First, we agree with the district court that Perez v.

Suszczynski is distinguishable because, in Perez, the evidence

established that the suspect was disarmed, compliant, and non-

resistant the entire time, whereas Redding actively resisted the

officers throughout the encounter. See 809 F.3d at 1217. The same

is true for Hunter v. City of Leeds, 941 F.3d 1265, 1280–81 (11th Cir.

2019) (where the suspect was just disarmed and did not make any

sudden moves), and Robinson v. Sauls, 46 F.4th 1332, 1337–38 (11th

Cir. 2022) (where the suspect was unconscious)—even setting aside

that Robinson was decided well after the events at issue here and so

could not serve to clearly establish the law. And to the extent that

Franklin relies on the broader principle recognized in Leeds and

cases like it, such cases do not apply to Popovich’s conduct with

“obvious clarity” because Franklin cannot show that Popovich

knew that Redding was unarmed.

Thus, Franklin has also failed to show any case or broader

principle that clearly established the illegality of Popovich’s actions

at the time of the shooting. Consequently, Popovich is entitled to

qualified immunity.

IV. Conclusion

Because we agree with the district court’s conclusion that

Popovich is entitled to qualified immunity, the judgment of the

district court is AFFIRMED.