Pobjecky was off duty, and never identified himself as a police officer.
“Pobjecky reasonably assumed the three other assailants, including Michael, might be armed. As the district court correctly observed, we may not consider the fact that it turned out Michael was unarmed because Pobjecky did not know that, and had no reasonable way to know that, at the time,” U.S. Circuit Judge Daniel Manion wrote for a three-judge panel.
The 23-page opinion notes that the entire incident happened in about 40 seconds, and that judges must be careful not to second guess the actions of police officers in the heat of the moment.
“No reasonable jury could find Pobjecky’s belief that Michael might be armed was unreasonable,” Manion continued. “Michael participated in an armed robbery while wearing a sweatshirt allowing easy concealment of a gun.”
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