Varnadore v. Merritt

Filing 60

ORDER granting Defendant's 36 Motion for Summary Judgment. Signed by Judge Lisa G. Wood on 9/30/2018. (ca)

In

^ISntteDi States! Btsitritt Court

for tfie ^outfiem Idtotrirt of Georgia
Pmnototclt IStbtoton
LISA

VERONICA

VARNADORE,

individually

and

Administratrix

Estate

of

of

Decedent

as
the
NO. 2:17-CV-00013

JOSHUA

iyiARSHALL FOSKEY or as next

of

friend

of

JENNA

GRAYCE

FOSKEY

Plaintiff,
V.

BRANDON

MERRITT,

individually.
Defendant.

ORDER

This

Matter

comes

before

the

Court

Merritt's Motion for Summary Judgment.

on

Defendant

Dkt. No. 36.

has been fully briefed and is ripe for review.

Brandon

This Motion

This case involves

the tragic death of Joshua Foskey. Mr. Foskey had locked himself
in his vehicle and was sweating.

His mother called to notify the

authorities. She made a second phone call to report that Mr. Foskey
stated he was not going to jail and that he wanted to die. Mr.
Foskey drove away at a high rate of speed.

After being briefly

chased down by Deputy Brandon Merritt in his squad car, screeching
to an abrupt stop on the shoulder of the road, swinging open his

A0 72A

(Rev. 8/82)

door to jump out of his truck, refusing to show Deputy Merritt his
hands, reaching back into his truck with both hands, and swinging

his body around to face Deputy Merritt while lifting an object in
his hand toward the Deputy, Mr. Foskey was shot and killed by

Deputy Merritt.

Mr. Foskey was later found to be unarmed, and the

object he had retrieved appears to have been a CD case and papers.
Plaintiff argues that an officer is required to wait until a

suspect plants his feet and takes aim before an officer can fire
his weapon.
on

the

The law does not support Plaintiff's argument. Based

indisputable

video

evidence

shown

by

the

dashcam,

an

objectively reasonable officer in Deputy Merritt's shoes would
have been justified in believing he was in danger of being shot by
a deadly weapon.

As such, despite the tragedy of this case. Deputy

Merritt is protected from liability under the law, and for the
following reasons. Deputy Merritt's Motion is GRANTED.
Background Facts

The undisputed evidence shows that at around 9:00 a.m. on May
22, 2014, Lisa V. Varnadore called 911 requesting an ambulance,

reporting that her son, Mr. Foskey, was asleep in his locked truck,
that she could not wake him, and that he appeared to be sweating
from his head.

Varnadore."

Dkt. No. 37, Ex. 10, ^^Initial 911 Call from Vicki

In

response.

Deputy Merritt

residence at 59 West Georgia Avenue.

was

dispatched

to

a

Id. ""Initial JDSO Dispatch."

Deputy Merritt arrived in his vehicle at what turned out to be a

neighboring residence.

Dkt. No. 37-2 SI 4.

Meanwhile, the 911

dispatcher called Ms. Varnadore back, and she explained to the
dispatcher that her son had woken up, that he had gotten out of
his truck and staggered around ^^talking crazy," that a needle had
fallen out of the truck, and that he had driven away in his Black

Dodge Ram.

Dkt. No. 37, Ex. 10, ''2nd Call with Vicki Varnadore."

She also explained that "he said 'I'm not going to jail. I want to
die.'" Id.

To fill Deputy Merritt in, the dispatcher phoned him and

reported that the caller said her son had driven toward Snipesville
in a Black Dodge Ram and that he was "10-55," which means that he
was under the influence.
SI 4.

38

Id. "JDSO Dispatch #2"; Dkt. No. 37-2

Nobody reported that Foskey was or might be armed.

at

66.

When

Deputy

Merritt

arrived

at

the

Dkt. No.

neighboring

residence, he saw Foskey's truck spin out of the driveway.
No. 38 at 66.

pursuit.

Dkt.

He told the same to the dispatcher and started his

Dkt. No. 37, Ex. 10, "JDSO Dispatch #2."

The dashcam video shows that Deputy Merritt entered the road
at 9:14:21 a.m.

Dkt. No. 37, Ex. 10 "Deputy Merritt, Front View

Dashboard Camera" (Video 1) at ~0:40.

his blue lights.

Dkt. No. 38 at 36.

Deputy Merritt activated

He sped down the road, and

Mr. Foskey's black truck came into view about 45 seconds later at
9:15:05.

Id. at ~1:25.

Deputy Merritt testified that he reached

speeds in excess of 100 miles per hour attempting to catch up to
Foskey's truck.

Dkt. No. 37-2 1 5.

During this time, video shows

that both Mr. Foskey and Deputy Merritt passed another driver in
a red truck in the lane of oncoming traffic.

Video 1 --1:26.

Foskey's truck twice veered into the oncoming lane.
1:42-47.

Id. at ~1:36,

Deputy Merritt told the 911 dispatcher that '""he's all

over the road; still can't get him to stop."

'VDSO Dispatch #3."

Dkt. No. 37, Ex. 10,

At 9:15:29, Mr. Foskey's brake lights came

on, and his truck veered off the road and came to an abrupt halt
on the shoulder of the road.

Id. at ~1:49-1:57.

From the time

that Deputy Merritt started down the road until Mr. Foskey's truck
came to a complete stop, about a minute and thirteen seconds had
elapsed.

As soon as he stopped the vehicle, Mr. Foskey swung open his
driver side door and got out of his truck at 9:15:41.
-2:00.

Video 1 at

Deputy Merritt exited his vehicle immediately after at

9:15:43.

Deputy Merritt, Rear View Dashboard Camera" (Video 2)

at -1:58.

As both parties agree, the dispatcher informed Deputy

Merritt as he was exiting his vehicle that Ms. Varnadore had
advised

that

Mr.

Foskey

^^wanted

to

die."

Dkt.

No.

36-1,

Defendant's Statement of Undisputed Material Facts at SI 15; Dkt.

No. 45-1, Plaintiff's Response To Statement of Undisputed Material
Facts at SI 15.

Mr. Foskey then reached his hands back inside the

truck for about ten seconds while looking at Deputy Merritt.

1 at ~2:04-15.

Video

Deputy Merritt testified that while Mr. Foskey's

hands were inside his truck, he yelled at him to show his hands

and that Mr. Foskey yelled back, ^^No!"

Dkt. No. 37-2 SI 5.

During

this time. Deputy Merritt is behind the car door moving toward the
rear of his own patrol car.

Dkt. No. 38 at 36-38.

Then, at

9:15:57, Mr. Foskey reaches further into the truck and opens the
middle console.

Video 1 at -2:17.

About three seconds later, he

suddenly turns around, quickly swinging his hand up toward the
direction of Deputy Merritt while holding, what was at that time,

an unknown object.

Id. at -2:20.

Believing Mr. Foskey had a gun.

Deputy Merritt shot him, and Mr. Foskey fell to the ground.

Id.

at -2:21-22; Dkt. No. 38 at 23.

It was later determined that the object in Mr. Foskey's hand

was not a gun, but rather a CD case and some papers.

Ex.

9,

DSC_7088.

GBI

Photos

DSC_7058,

DSC_7082,

Dkt. No. 37,

DSC_7084,

DSC_7089,

The dashcam video shows the CD case and papers falling

out of Foskey's hands after he was shot.

Video 1 at -2:20-23.

Plaintiff has alleged that a video recording of the shooting (which
no longer exists)^ captured audio of Deputy Merritt asking Mr.

Foskey for his license, registration, and insurance while cursing

1 Plaintiff argues that the spoliation of this video with audio evidence creates
a presumption against Defendant.
Dkt. No. 45 at 19; see infra Section II,
Alleged Audio Argument.

at him.

Dkt. No. 45, Exs. 6-7.

However, neither party presented

such a video and the Court has not seen such a video.

Additionally,

GBI photos show that the papers that fell were in fact an invoice
and receipt from Blue Flame LP Gas Co.

Dkt. No. 37, Ex.. 9, GBI

Photos DSC_7082, DSC_7084.

In response to Mr. Foskey's death, his mother, Ms. Varnadore,

brought this suit as the administratrix of Foskey's estate against
Deputy Merritt, alleging excessive force in violation of the Fourth
Amendment.

Legal Standard

Summary judgment is required where ^'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."
56(a).
the

Fed. R. Civ. P.

A fact is "material" if it "might affect the outcome of

suit

under

FindWhat.com,

the

658

governing

F.3d

1282,

law."
1307

FindWhat
(11th

Cir.

Inv'r

Grp.

2011)

(quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986))
.

v.

A

dispute is "genuine" if the "evidence is such that a reasonable

jury could return a verdict for the nonmoving party."

Id.

The

general rule is that in making this determination, the court is to
view

all

of the

evidence

in

the

light most

favorable

to

the

nonmoving party and draw all reasonable inferences in that party's
favor.

See Johnson v. Booker T. Washington Broad. Serv., Inc.,

234 F.3d 501, 507 (11th Cir. 2000). However, ''facts must be viewed

in the light most favorable to the non-moving party only if there

is a 'genuine' dispute as to those facts." Scott v. Harris, 550
U.S. 372, 380 (2007).

"[T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.". Id. (citation
omitted).

The Supreme Court has further explained that "[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."
Id.

The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact.
V. Catrett, 477 U.S. 317, 323 (1986).

See Celotex Corp.

The movant must show the

court that there is an absence of evidence to support the nonmoving

party's case.

See id. at 325.

If the moving party discharges

this burden, the burden shifts to the nonmovant to go beyond the

pleadings and present affirmative evidence to show that a genuine
issue of fact does exist.

When

considering

the

Anderson, 477 U.S. at 257.

record

at

summary

judgment,

"'the

evidence of the nonmovant is to be believed, and all justifiable

inferences are to be drawn in his favor.'" Shaw v. City of Selma/

884 F.3d 1093, 1098 (quoting Tolan v. Cotton, 134 S. Ct. 1861,
1863 (2014)).

But,

in

cases

with

a

video

in

evidence

that

obviously contradicts the nonmovant's version of the facts, the
Court ''"^viewCs] the facts in the light depicted by the videotape.'"
Shaw, 884 F.3d at 1098 (quoting Scott v. Harris, 550 U.S. 372,
380-81 (2007)).

In a use-of-force case, the facts must be taken in the light

most

favorable

to

the

plaintiff,

but

the

determination

of

reasonableness must be made from the perspective of the officer.
Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th Cir. 2005).

^^At

summary judgment, we cannot simply accept the officer's subjective
version of events, but rather must reconstruct the event in the

light most favorable to the non-moving party and determine whether
the

officer's

circumstances."
Cir. 2017).

use

of

force

was

excessive

under

those

Stephens v. DeGiovanni, 852 F.3d 1298, 1315 (11th

''^In order to overcome a summary judgment motion on

the basis of qualified immunity, the facts in dispute must raise
a genuine issue of fact material to the determination of . . .

whether police officers used excessive force."
Antolini, 559 F.3d 1201, 1205 (11th Cir. 2009).

McCullouqh v.

Discussion

I.

§ 1983 Claim and Qualified Immunity

In this case. Plaintiff brings claims against Deputy Merritt
of excessive force in violation of the Fourth Amendment under 42

U.S.C. § 1983 (2018).

A § 1983 claim requires the plaintiff to

show that he was deprived of a federal right by a person acting
under color of state law.

DeGiovanni, 852 F.3d at 1314.

In

response to Plaintiff's § 1983 claim. Deputy Merritt has raised
the defense of qualified immunity.

Qualified immunity grants ""complete protection for government
officials sued in their individual capacities if their conduct

does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known."

Vinyard v.

Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). The doctrine protects

""all but the plainly incompetent or one who is knowingly violating
the federal law."

Id. (quoting Lee v. Ferraro, 284 F.3d 1188,

1194 (11th Cir.2002)).

For qualified immunity to apply, a defendant must show that
he or she was a state actor engaged in a discretionary function
within the scope of his or her authority at the time of the alleged
violation.

Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir.2012);

Magqio v. Sipple, 211 F.3d 1346, 1350 (11th Cir. 2000).

If the

defendant meets this threshold issue, the burden shifts to the

plaintiff to show that the defendant is not entitled to qualified
immunity by satisfying a two-part inquiry.

Terrell, 668 F.3d. at

1250. First, the plaintiff must show that the defendant violated
a constitutional right.

Id.

If such violation occurred, he must

show that the right was clearly established at the time of the
incident.

Id.

The Court has discretion to address either the

constitutional violation prong or the clearly established prong

first depending on the circumstances of a particular case. Pearson
V. Callahan, 555 U.S. 223, 236 (2009).

As an initial matter, no party disputes that Deputy Merritt

was exercising discretionary authority, so the burden shifts to
the Plaintiffs to show that qualified immunity does not apply.

See Terrell, 668 F.3d at 1250.

Based on the circumstances of this

case, we turn first to the question of whether Deputy Merritt did
in fact use excessive force in violation of the Fourth Amendment

in shooting Mr. Foskey.

The Court finds that he did not.

The Supreme Court has held that all claims of excessive force
shall be examined under the Fourth Amendment and its reasonableness

standard.

Tennessee v. Garner, 471 U.S. 1, 7 (1985). The critical

question for evaluating whether a particular application of force
is

excessive

under

the

Fourth

Amendment

is

whether

it

was

objectively reasonable. Smith v. LePage, 834 F.3d 1285, 1294 (11th
Cir. 2016).

'''The calculus of reasonableness must embody allowance
10

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."
(1989).

Graham v. Connor, 490 U.S. 386, 396-97

"A reasonable but mistaken belief that probable cause

exists for using deadly force is not actionable under § 1983."
Carr v. Tatangelo, 338 F.3d 1259, 1269 (llth Cir. 2003).

'^MTJhe

reasonable officer standard does not mean we give the challenged

officer's

self-serving

reasonableness

^'based

on

testimony
[the

more

weight,"

officer's]

subjective

nor

is

beliefs."

Perez v. Suszczynski, 809 F.3d 1213, 1219-20 (llth Cir. 2016).

''[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.
is

not

excessive

force

where

the

officer

has

an

Deadly force
objectively

reasonable fear that the suspect poses an imminent threat of bodily
harm. See McCormick v. City of Fort Lauderdale, 333 F.3d 1234,

1246-47 (llth Cir. 2003) (per curiam).

Thus, the Court is tasked

with scrutinizing the totality of the circumstances, focusing on
examining the level of force used in light of three main factors:
(1) the severity of the crime, (2) the immediacy of the threat

posed by the suspect to officers or others, and (3) whether the

suspect sought to evade or resist arrest.

Graham v. Connor, 490

U.S. 386, 396 (1989); see also Morton v. Kirkwood, 707 F.3d 1276,
11

1281 (11th Cir. 2013) (reiterating the three Graham factors).
doing so, the Court must ""not view the use of force

In

^from the

comfort and safety of our chambers' but rather *through the eyes
of the officer on the scene.'"

Small v. Glynn Cty., 77 F. Supp.

3d 1271, 1279-80 (S.D. Ga. 2014) (quoting Crosby v. Monroe Cnty.,
394 F.3d 1328, 1333-34 (11th Cir.2004)), aff'd, McGehee v. Glynn

Cty., Ga., 598 F. App'x 752 (11th Cir. 2015); see also Graham, 490
U.S. at 396 (^^The

^reasonableness' of a particular use of force

must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.").

A. Severity of the Crime

The first factor the Court must analyze is the severity of
the crime committed by Mr. Foskey.

Mr. Foskey was not charged

with a crime, but we look to the possible criminal actions that

Deputy Merritt was aware of when he responded to this incident.
Deputy Merritt

was called to the scene initially because

Ms.

Varnadore called 911 to report that Mr. Foskey was asleep in his
locked truck, was sweating, and she could not wake him.

Dispatch

subsequently informed Deputy Merritt that Mr. Foskey had driven
off and

was

under

the influence.

During

the

pursuit.

Deputy

Merritt observed Mr. Foskey driving erratically and, at one point,
as shown in the video, even swerving completely into the oncoming

lane.

Finally, Deputy Merritt stated that after turning on his

12

blue lights in pursuit he was having some difficulty pulling him
over.

But,

he

did

eventually stop,

and

the

pursuit, in

its

entirety, only lasted about one minute and thirteen seconds.

Here, the facts show that the crimes being committed included

possibly fleeing from police, doing so while under the influence,
and violating traffic laws such as staying in the correct lane.
See, e.g., O.C.G.A. §§ 40-6-395(a), (b)(5)(A)(iv). These crimes

under Georgia law may or may not be a felony depending on the
circumstances.

For

instance,

if Mr.

Foskey

was

placing

^^the

general public at risk of receiving serious injuries" by fleeing
police, it would be a felony; so would fleeing while under the
influence.

O.C.G.A. §§ 40-6-395(b)(5)(A)(iii)-(iv).

But, none of

these possible crimes on their own would put a reasonable officer
on notice that Mr. Foskey ""might be armed or violent."

Davidson

V. Opelika, 675 F. App'x 955, 958 (11th Cir. 2017) (holding that
the first factor weighed squarely in the plaintiff s favor when
the crime at issue was drunk driving and the drunk driver had even
crashed into another vehicle).

On the other hand, it is worth

noting that a reasonable officer would likely assume based on the
driving and information about Mr. Foskey being under the influence
that he may act erratically when confronted.
weighs in favor of Plaintiff.

13

All told, this factor

B. Immediacy of the Threat

The next factor is whether Mr. Foskey posed an immediate

threat to the safety of the officer or others.

The Eleventh

Circuit has described this factor as a single question: ^^whether,

given the circumstances, [the suspect] would have appeared to
reasonable officers to have been gravely dangerous."
Eslinqer, 605 F.3d 843, 851 (11th Cir. 2010).

Penley v.

Importantly, ''even

when the first and third factors are absent, the presence of the

second factor . . . may justify entry of summary judgment for the
officer on an excessive force claim."

Shaw v. City of Selma, 241

F. Supp. 3d 1253, 1270 (S.D. Ala. 2017) (citing Davidson, 675 F.

App'x at 958-60), aff'd, 884 F.3d 1093 (11th Cir. 2018). Finally,
in deciding this factor, the Court notes that "'[w]here the officer
has probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others,' use of

deadly force does not violate the Constitution." Penley, 605 F.3d
at 851 (quoting Garner, 471 U.S. at 11).

In this case, the circumstances leading up to the shooting

demonstrate that Mr. Foskey would have appeared to a reasonable
officer to be gravely dangerous.

While in pursuit. Deputy Merritt

was told by the dispatcher that Mr. Foskey was under the influence.
Before pulling Mr. Foskey over. Deputy Merritt observed, and the
video shows, that Mr. Foskey was driving erratically.

14

Furthermore,

when Mr. Foskey eventually stopped, he did so by slamming on his

breaks and quickly swerving onto the shoulder of the road. At this
point, a reasonable officer would know that Mr. Foskey was, at the
very least, not behaving normally and would be reasonably concerned
by these three facts.

Almost immediately after stopping, Mr. Foskey opens his door

and

quickly steps

out

of

his

vehicle.

At

this

point,

any

reasonable officer would become concerned. As Deputy Merritt noted

in his deposition ^^[w]hen you swing your door open and jump out

quickly, people don't normally do that."

Dkt. No. 38 at 19.^

normal behavior is for a person to wait in the vehicle.

The

Right

after Mr. Foskey exited the vehicle. Deputy Merritt also exits his
vehicle.

The last thing that Dispatch told Deputy Merritt as he

exited his vehicle was that Mr. Foskey said he wanted to die.
Based on all of this information, a reasonable officer would be on

notice that Mr. Foskey might be willing to harm himself, and in
the process, someone else.

At this point. Deputy Merritt testified that he told Mr. Foskey
to show Deputy Merritt his hands to which Mr. Foskey responded,
^^No."

Dkt. No. 38 at 41.

The video shows that Mr. Foskey did not

2 Plaintiff attempts to show that because Deputy Merritt normally asks people
to step out of the car to perform a roadside test when he believes they are
under the influence, he might have done that in this case. See Dkt. No. 38 at
10. However, this argument is without merit because the rear and front dashcam
videos show that Mr. Foskey exited his vehicle before Deputy Merritt. Moreover,
nothing in the record would indicate that high speed chases are the norm.
15

show his hands, but rather, kept them in the truck for about ten
seconds.

Then he reaches even further in his truck, and as seen

on the video and observed by Deputy Merritt, he opens the middle
console.

Then, Mr. Foskey quickly swings his body around in one fast
motion, out of the car, while bringing his right hand up toward

Deputy Merritt.

Mr. Foskey was clutching something that Deputy

Merritt described as a ^Mark object."

Dkt. No. 38 at 23.

Deputy

Merritt, believing that Mr. Foskey had a gun in his hand, fired a

single shot that hit and killed Mr. Foskey.

Although the object

was later determined to be a CD case and a couple pieces of paper,

a

reasonable

officer

in

light

of

all

of

the

surrounding

circumstances could reasonably conclude Mr. Foskey was raising a
firearm toward Deputy Merritt.
1269 (11th

Cir. 2003)

Carr v. Tatanqelo, 338 F.3d 1259,

reasonable but mistaken

belief that

probable cause exists for using deadly force is not actionable
under § 1983.").

The video shows how the motion of Mr. Foskey's

hand swung up from the waist, across his body, and directly toward
Deputy Merritt like someone raising a handgun about to fire.

Given

the surrounding circumstances, an objective officer would be more
likely to conclude Mr. Foskey was drawing out a weapon rather than
a CD.

16

A reasonable officer in Deputy Merritt's position, knowing
what he knew, would have had ^'probable cause to believe that" Mr.

Foskey "pose[d] a threat of serious physical harm" to the officer,
and as a result, the ''use of deadly force [in this case] [did] not
violate

the

Constitution."

Garner, 471 U.S. at 11).

Penley,

605

F.3d

at 851

(quoting

Based on the video evidence, the Court

finds - the second factor, on its own, dispositive in this case

because there is no genuine dispute of material fact showing that
a reasonable officer would not have had probable cause to believe
Mr. Foskey posed a threat of serious physical harm.

C. Whether

the

Decedent

is

Actively

Resisting

Arrest

or

Attempting to Elude the Officer by Flight

As

for

the

resisting arrest.

third

factor,

Mr.

Foskey

was

also

actively

At least for some short amount of time, it

appears that Mr. Foskey was fleeing Deputy Merritt before slamming

on his breaks. Additionally, Mr. Foskey refused to comply with
Deputy Merritt's order to show his hands.

Instead, he continued

to hide his hands from Deputy Merritt's view inside of the vehicle
before ultimately reaching in further to open the center console.
As explained above, these actions could give a reasonable officer

probable cause to think that Mr. Foskey was retrieving a weapon.
Although this is not a case where the decedent was still running
from

officers

or

engaged

in

a

17

physical

fight,

Mr.

Foskey's

resistance to the order to show his hands in light of the other

surrounding circumstances weighs in favor of Deputy Merritt with
respect to whether his actions were reasonable.

D. Plain-tiff's Arguments

Plaintiff raises several arguments attempting to show that

Deputy Merritt's actions were not objectively reasonable.

Most of

Plaintiff's arguments, if accepted, would require the Court to
establish new case law of which Deputy Merritt would not have been

aware.

For example, a precedent may someday be set that officers

must wait until a suspected shooter takes aim and plants his feet
prior to an officer's use of deadly force.

The Court is unaware

of any United States Supreme Court, Eleventh Circuit, or Georgia

Supreme

Court

decision

practice and risk.

that

would

require

such

astonishing

To the contrary, ^^the 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.

Additionally, Plaintiff attempts to distinguish this case
from an unreported Eleventh Circuit case, Davidson v. Opelika, 675
F. App'x at 959, that granted summary judgment to the defendant
officer on qualified immunity grounds.

In Davidson, an officer

was responding to reports of an erratic driver on the interstate

who subsequently hit a tractor trailer and had pulled off to the
18

side of the road when the officer arrived.
57.

675 F. App'x at 956-

The Eleventh Circuit stated that neither the first nor the

third factors weighed in the officer's favor because the driver
was at most guilty of a DUI and had already stopped his vehicle
when the officer arrived.

However, as demonstrated in the video

of that case (submitted to the Court along with Deputy Merritt's

motion for summary judgment), the driver clumsily exited

his

vehicle and raised his hands toward the officer while holding a

dark object later determined to be his wallet.
and killed the driver.

The officer shot

But, under the second factor, the Eleventh

Circuit found no excessive force explaining that:

The positions of the object and Davidson's hands—established
by the video—are key.
To be clear, Davidson exiting his
vehicle, reaching behind himself, and holding an unidentified
object would not have been sufficient to make Hancock's use
of deadly force reasonable under the circumstances. But the
unusual
position
of the dark
object in
Davidson's
outstretched and clasped hands would have led a reasonable
officer to believe that Davidson was pointing a gun at him.
675 F. App'x 955, 959 (11th Cir. 2017).
The Davidson conclusion applies with even greater force in
this case. Mr. Foskey's actions of hiding his hands from Deputy

Merritt's view, opening the console, and quickly swinging his body
around while lifting an object in his hand toward Deputy Merritt

appear to be much more dangerous than the clumsily stumbling driver
in Davidson holding out an unknown dark object later determined to
be a wallet.

Here, as in Davidson, the manner in which Mr. Foskey

19

held his object is also important in showing that a reasonable
officer would believe that object to be a gun in this case.

Plaintiff relies on the statement by the Eleventh Circuit in
Davidson

that

""^[tjo

be

clear,

Davidson

exiting

his

vehicle,

reaching behind himself, and holding an unidentified object would
not have been sufficient to make Hancock's use of deadly force

reasonable

under

the

circumstances."

675

F.

App'x

at

959.

Plaintiff believes that the facts here match the facts described

by the Eleventh Circuit that ""would not have been sufficient" to
justify deadly force.
those facts.

object.

Id.

However, this case is different from

Mr. Foskey did not merely hold an unidentified

He hid his hands from Deputy Merritt's view, ignored his

orders, and suddenly flung his hand up with the object being aimed
toward the deputy.

All of this was done in front of an officer

who had just been told he is confronting a man who wants to die.
In

other

words,

the

facts

are

materially

different

from

the

hypothetical in Davis, and they differ in a way that cuts decidedly
against Plaintiff's argument.

Finally, Plaintiff alleges that Deputy Merritt was in no
immediate threat from Mr. Foskey because he was always ""completely

behind something" and admitted that Mr. Foskey was so intoxicated
that he could probably not walk a straight line.

However, Deputy

Merritt explained that someone ""can come out and start pulling

20

that trigger and you can get lucky. I mean you ain't got to aim."
Dkt. No. 38 at 64.

this argument.

Again, we can look to the video to address

To say that Deputy Merritt was completely shielded

and protected because he was standing behind his patrol car would
be incorrect.

Deputy Merritt is approximately six feet tall, dkt.

no. 38 at 40, and as such, neither the door nor the back of the

patrol car could completely protect him from being shot.

Indeed,

to fire a shot at Mr. Foskey, at least part of Deputy Merritt's

body must

have

been

inebriated driver in

exposed.

Furthermore, if the

obviously

Davidson could be held to be an immediate

threat despite his impaired state, so could Mr. Foskey in this
case.

It is natural to engage in wishful hindsight whenever someone
dies.

However, that is not the proper standard.

Here, the Court

is bound to view these facts in the light most favorable to the

Plaintiff, but, in doing so, it must also view them from the

viewpoint of a reasonably objective officer in the position of
Deputy Merritt.

In light of the indisputable video evidence

combined with the information relayed to Deputy Merritt from the

dispatcher, the Court finds that there is no genuine dispute of
material fact as to whether Deputy Merritt used excessive force in
this case.

He did not.

As such, he did not violate Mr. Foskey's

21

constitutional

rights

under the

Fourth

Amendment

and

is

thus

audio

from

entitled to qualified immunity.^

II.

Alleged Audio Argument

Plaintiff

raises

arguments

regarding

alleged

Deputy Merritt's dash cam video that Plaintiff believes existed.
In the briefs. Plaintiff made a spoliation argument, but at the

hearing on this Motion, counsel for Plaintiff clarified that the

audio argument was more about creating a genuine issue of material
fact based on Robert Kirkland's testimony.

Either way, the Court

ultimately concludes that Plaintiff is not entitled to a spoliation
charge and has not established a genuine dispute of material fact
based on this argument.

Turning first to the spoliation issue, 'Ms]poliation is the
destruction or significant alteration of evidence, or the failure

to preserve property for another's use as evidence in pending or
reasonably foreseeable litigation."

Griffin v. GMAC Commercial

Fin., LLC, 2007 WL 521907, at *3 (N.D. Ga. 2007). A party asserting

spoliation of evidence must prove that (1) the missing evidence
existed at one time; (2) the opposing party had a duty to preserve
it;

and

(3)

the

evidence

was

crucial

to

the

case.

In

re

Delta/AirTran Baggage Fee Antitrust Lit., 770 F. Supp. 2d 1299,

3 Because

address

we

the

find

second

that there

prong

of

was

no

constitutional

whether

Davidson, 675 F. App'x at 959.
22

the

right

violation,

was

clearly

we

need

not

established.

1305 (N.D. Ga. 2011).

party's

failure

to

'''Even if all three elements are met, a

preserve

evidence

rises

to

the

level

of

sanctionable spoliation only when the absence of that evidence is
predicated on bad faith, such as where a party purposely loses or

destroys relevant evidence."

Id. {citations omitted) (internal

quotation marks omitted).

Neither party has produced into evidence a video with audio

of the shooting.

Deputy Merritt's dashcam video introduced into

evidence does not have audio.

Deputy Merritt testified that this

is because the audio feature had broken a few weeks prior to the

shooting.

Dkt No. 38 at 42.

Plaintiff asserts that at one time,

there was a video with audio.

As proof. Plaintiff offers the

deposition testimony of Monroe Hatton, Ms. Varnadore's brotherin-law.

Ms.

Varnadore

had

secretly

recorded

an

unsworn

conversation with Mr. Hatton; that recording was played to Mr.

Hatton at his deposition. See Dkt. No. 45, Ex. 6.

In the unsworn

conversation, Hatton asserted that while watching a video of the

shooting, he heard Deputy Merritt ask Mr. Foskey to show his
license, registration, and insurance.
1:30; 2:25-2:58.

Dkt. No. 45, Ex. 7 1:20-

However, Mr. Hatton testified under oath in his

deposition that he had lied to his sister-in-law "[t]o get her to

shut up about things that has happened," dkt. no. 40 at 11, and
that he had not "watched a video of the shooting of Josh."

12.

Id. at

He stated repeatedly throughout his deposition that he had
23

never seen a video of the shooting.

See Dkt. No 40 at 16-17, 20-

21, 23-24, 28, 31.

Plaintiff also points to the deposition testimony of Robert
Kirkland, a self-employed computer consultant who had done some
work for the sheriff's office.

Mr. Kirkland helped the sheriff's

office and GBI retrieve a video of the incident from the server

onto a readable disk.

In describing the process, he stated that

^^ohce we got the format where we could watch it and hear it, then
we realized . . . this is going to work."

Dkt. No. 41 at 12.

When

asked what he heard on the video, he stated ^'[j]ust the chase. You

know, if I remember correctly, radio back and forth. A deputy

saying how far away he was and things like that."

Id.

However,

he also made clear that he was not sure which officer's car he

helped extract a video from.

Id. at 18-19.

In a subsequently-

filed affidavit, Mr. Kirkland explained under oath that after

reviewing videos from both Deputy Merritt and Deputy Wooten's

patrol cars from the GBI file, he could confirm that he had helped
extract the video from Deputy Wooten's car and had only previously
seen that video.

Dkt. No. 37-3.

Deputy Wooten's video did in

fact have audio which included radio communications back and forth

with Dispatch and Deputy Wooten giving his location.
Dkt. No. 36, Ex. 3,
(Video 3).

See generally

Deputy Wooten, Front View Dashboard Camera"

Mr. Kirkland stated that he had never seen the video

from Deputy Merritt's car.

Dkt. No. 37-3.
24

Plaintiff has failed to

prove

spoliation because

she

has

failed to prove that a video of the shooting containing audio
existed, and even if such a video did exist,. Plaintiff failed to

present any evidence that Deputy Merritt acted in bad faith with
relation to such a video.

The only evidence that a video with

audio of the shooting existed is a recorded statement made by Mr.
Hatton that he then disavowed in a sworn deposition.

As for Mr.

Kirkland's deposition, his testimony also does not prove that such
a

video

existed

because

his

explanation

in

his

affidavit

is

entirely consistent with what he said about being unsure which car
he had retrieved a video from.

While this evidence might be used

to impeach a witness, it is not sufficient to meet the standard
for spoliation.

Furthermore, this alleged audio evidence does not create a

genuine dispute of material fact on the question of whether Deputy
Merritt used excessive force in this case.

First, as described

above, the video evidence in this case is clear.

The allegation

of audio existing for the video does not change what can be seen
in the video.

Moreover, the allegation of audio is just that, an

unproven allegation.

Although the Court allowed Plaintiff time to

develop this allegation, time and discovery confirmed that no audio
exists, and anyone who said or thought that it did ever exist
explained under oath their error.

25

Perhaps, at most, Mr. Hatton

and

Mr.

Kirkland

might

be

subject

to

impeachment.

However,

impeachment evidence cannot be used to create a genuine issue of
material fact.

See McMillian v. Johnson, 88 F.3d 1573, 1584 (llth

Cir. 1996).

Ill. State Law Claims

Typically, when all of the federal claims in a case have been

adjudicated, the Court will decline to exercise its supplemental

jurisdiction and dismiss the remaining state law claims without
prejudice.

See Gray v. Royal, 181 F. Supp. 3d 1238, 1254 (S.D.

Ga. 2016).

However, when certain special circumstances exist, the

Court will use its discretion to decide those remaining state law

claims.

This case is one of those special circumstances.

At the hearing on the summary judgment motion. Defendant's
counsel requested that, in light of the long procedural history of
this case, the

Court decide the

state

law

claims rather

than

dismissing the claims so that they can be refiled in state court.
Motion's Hearing, August 16, 2018 at 10:26:25.

Plaintiff's counsel

agreed stating that "if you think the officer acted reasonably
under federal law then I don't think you can say that the officer

shot Mr. Foskey for no reason which would kill the Georgia claim.

26

And I don't think you'd be doing any of us a favor to send this to
state court."

Id. at 10:54:23.

^^The Georgia constitution bestows official immunity on county

government officers acting in a discretionary function and sued in
their individual capacity unless they ^act with actual malice or
with actual intent to cause injury in the performance of their
official functions.'" Jones v. Fransen, 857 F.3d 843, 855-56 (11th

Cir. 2017) (quoting Ga. Const, art. I, § 2, 5 9(d)).

""Actual

malice requires a deliberate intention to do wrong." Id. (citation

omitted).
in

Here, there is no dispute that Deputy Merritt was acting

a discretionary function during

Foskey.

his confrontation

with

Mr.

Also, Plaintiff's counsel was correct in noting that in

light of the fact that the Court found Deputy Merritt to have acted
reasonably and the absence of any evidence in the record to the
contrary,

he

Therefore,

did

not

because

Merritt is entitled

act

both

with

parties

actual
agree

malice
on

to official immunity,

these

and

in

this

facts.

his

case.
Deputy

motion

for

summary judgment with respect to the state law claims in this case
is GRANTED.

CONCLUSION

This case falls within the qualified immunity doctrine's very
heart; for here Deputy Merritt was forced to make a split-second

judgment in tense, uncertain, and rapidly evolving circumstances.
27

Based

on

the

undisputed

circumstances,

it

was

objectively

reasonable for him to believe that he was in a shot or be shot

situation.

Defendant's Motion for Summary Judgment (Dkt. No. 36)

is GRANTED.

SO ORDERED, this 30th day of September, 2018.

HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

A0 72A

(Rev. 8/82)

28