# Sherika Franklin v. Jason Popovich

> Court of Appeals for the Eleventh Circuit · August 6, 2024 · 111 F.4th 1188

URL: https://www.frixlaw.com/law-library/cases/10499225

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** August 6, 2024
- **Citations:** 111 F.4th 1188
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10499225

## How later opinions describe it (automated extraction)

- holding that an officer may reasonably believe, based on the totality of the cir- cumstances, that a suspect is armed and dangerous even if the sus- pect is ultimately determined to be unarmed

## Opinion text

USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 1 of 16

[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
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 2 of 16

2 Opinion of the Court 22-13326

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.
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 3 of 16

22-13326 Opinion of the Court 3

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
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 4 of 16

4 Opinion of the Court 22-13326

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.
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 5 of 16

22-13326 Opinion of the Court 5

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.”
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 6 of 16

6 Opinion of the Court 22-13326

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
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 7 of 16

22-13326 Opinion of the Court 7

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
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 8 of 16

8 Opinion of the Court 22-13326

[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.
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 9 of 16

22-13326 Opinion of the Court 9

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
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 10 of 16

10 Opinion of the Court 22-13326

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.
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 11 of 16

22-13326 Opinion of the Court 11

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
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 12 of 16

12 Opinion of the Court 22-13326

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.
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 13 of 16

22-13326 Opinion of the Court 13

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
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 14 of 16

14 Opinion of the Court 22-13326

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
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 15 of 16

22-13326 Opinion of the Court 15

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.
USCA11 Case: 22-13326 Document: 57-1 Date Filed: 08/06/2024 Page: 16 of 16

16 Opinion of the Court 22-13326

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10499225. Public record. Not legal advice.