Christopher Redding was arrested by the Orange County (Florida) Investigative Support Squad (ISS) in January 2017 for a series of strong-arm robberies. [1] He was lodged in the Orange County jail but released on bail in error a few days after his arrest. A new warrant was issued for his arrest. The warrant identified him as a “violent felony offender of special concern.”
On February 28, 2017, ISS received information that Redding was located at an apartment complex and that he was armed and determined not to return to jail. At the apartment complex, ISS began to surveil a car known to be owned by a friend of Redding. They observed Redding and a woman with two small children approaching the car from the apartment complex. Officers approached Redding and ordered him to show his hands. He refused and fired a gun at the officers. A bullet struck Sergeant Rick Stelter in the shoulder. The officers fired back but Redding turned and ran.
During the ensuing foot pursuit, Redding ran through two parking lots and between numerous vehicles for cover. At some point during the foot pursuit, Redding dropped his gun. Deputy Popovich testified later that he didn’t see him drop the gun and thought he still had it when Redding fell to the ground at the end of the pursuit. Popovich thought that Redding had the gun under his body because he didn’t see it in the immediate area. He observed that Redding was bloody from receiving several (determined later to be at least eight) bullet wounds but didn’t try to handcuff him because he was without proper protective gloves. Popovich was concerned about exposure to bloodborne diseases.
Popovich told Redding to stop moving and remain still because help was on the way. He also ordered him to “keep your hands away from you.” While waiting for gloves to safely handcuff Redding, Popovich and Deputy Leone stood on his arms to prevent him from reaching under his body. Redding made a sudden movement and pulled one of his hands in toward his body. Popovich testified later that he believed that Redding was reaching for his gun and shot Redding twice in the head. Redding died from the wounds to the head.
The federal lawsuit
The personal representative of Redding’s estate (Plaintiff) filed a lawsuit in federal court against Popovich pursuant to 42 U.S.C. § 1983, alleging that his use of deadly force violated clearly established Fourth Amendment law. Popovich responded by filing a motion for summary judgement [2] in which he asserted a qualified immunity defense.
The district court ruled that Popovich was entitled to qualified immunity but concluded that whether the Popovich killing of Redding was reasonable was a question for a trial jury to decide. [3] The court explained that notwithstanding its conclusion that a jury should decide whether Popovich’s shooting of Redding was reasonable, [4] dismissal was nonetheless required because the Plaintiff failed to provide evidence that Popovich’s shooting violated clearly established Fourth Amendment law. [5] The Plaintiff appealed to the Eleventh Circuit Court of Appeals.
The Eleventh Circuit opinion
The Eleventh Circuit affirmed the district court’s grant of qualified immunity to Popovich but disagreed with the lower court’s determination that whether Popovich’s shooting of Redding was reasonable (i.e., consistent with Fourth Amendment) was a jury question. [6]
The court explained, “We conclude, contrary to the district court’s assessment, that there is no genuine dispute of fact [i.e. jury question] 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 [determined later to be] unarmed does not mean there is necessarily a fact dispute or credibility issue as to what Popovich knew [at the time he fired his weapon], 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, [Plaintiff] 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.”
Conclusion
The favorable outcome for Deputy Popovich demonstrates that some judges in our country still possess the courage, intestinal fortitude and common sense to make a final decision favorable to a law enforcement officer without subjecting the officer to the vagaries inherent in a jury trial. The appellate panel clearly contradicted the rationale and conclusion of the lower court judge who believed that whether Popovich’s conduct violated the Fourth Amendment was a jury question. [7]
In this case, the involved officers faced perilous circumstances and life-threatening conduct from Redding. He had already fired a pistol at them; shot and wounded one of them; ran away while still in possession of his firearm; dropped his gun outside the view of Deputy Popovich; and while on the ground, having been shot eight times, ignored commands to stop moving and keep his hands away from his prone body.
Deputy Popovich had every reason to believe that Redding still possessed his gun, covering it with his body. He ordered him not to move and to keep his hands away from his side. Redding, who had disobeyed all previous commands with disastrous consequences for the officers, continued to disobey and moved his hand toward his body. Popovich, reasonably believing that Redding was attempting to access his firearm, shot and killed him. The appellate court agreed with his reasonable belief.
References
1. The ISS was a specially trained unit designed to apprehend violent subjects.
2. A successful summary judgment motion will result in a decision by the judge in favor of the defendant officer and dismissal of the lawsuit without a trial. A successful ruling amounts to a judicial determination that as a matter of law, the defendant has either not violated the constitution or clearly established constitutional law or both.
3. This approach by the district court signals a likely belief by the judge that the killing violated the Fourth Amendment.
For a plaintiff to defeat the assertion of a quailed immunity defense by an officer, he/she must show, (1) a Fourth Amendment violation and (2) the alleged conduct of the officer violated clearly established Fourth Amendment law. Even if a plaintiff can establish a Fourth Amendment violation, qualified immunity will prevail unless the officer’s alleged conduct also violated clearly established Fourth Amendment law.
4. That is, whether Popovich reasonably believed that Redding was still armed and making a threatening movement when he shot him.
5. “The court explained that [Plaintiff] 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.’”
6. Franklin v. Popovich, No. 22-13326 (11th Cir. 2024).
7. See author’s comment, note three.
