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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14568
Non-Argument Calendar
________________________
D.C. Docket No. 2:17-cv-00013-LGW-BWC
LISA VERONICA VARNADORE,
Plaintiff-Appellant,
versus
BRANDON MERRITT,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(July 30, 2019)
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
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Plaintiff-Appellant Lisa Veronica Varnadore (“Varnadore”), individually
and in her representative capacities as the administratrix of her deceased son
Joshua Foskey’s (“Foskey”) estate and as next friend of Jenna Grayce Foskey,
appeals the district court’s decision granting Defendant-Appellee Brandon
Merritt’s (“Merritt”) motion for summary judgment. In granting that motion, the
district court dismissed Varnadore’s
42 U.S.C. § 1983 claim that Merritt violated
the Fourth Amendment to the United States Constitution when he shot and killed
Foskey, who was unarmed, during a brief roadside encounter. The district court
also dismissed several related state law claims on the basis of official immunity.
We have closely reviewed the record in this case, including video taken from
the dashboard camera in Merritt’s patrol car, audio recordings of 911 calls, and
audio recordings of radio correspondence between Merritt and a 911 operator. We
have also carefully reviewed the parties’ briefs and considered the relevant legal
standards. Following this review, we conclude that Merritt is entitled to qualified
immunity because video evidence of the shooting and the surrounding
circumstances makes it clear that no reasonable jury could find that Merritt lacked
an objectively reasonable basis for using deadly force against Foskey under the
circumstances of this tragic case. We also conclude that the district court did not
err when it dismissed Varnadore’s state law claims. Consequently, we affirm the
district court’s decision granting Merritt’s motion for summary judgment.
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I. FACTUAL BACKGROUND
We assume the parties are familiar with the record of this case and recount
the facts and procedural history in this opinion only the extent necessary to provide
context for our decision. The events giving rise to this appeal occurred on the
morning of May 22, 2014. About 9:00 a.m. that day, Varnadore called 911 to
request an ambulance because Foskey, her 34-year-old son, was locked inside his
pickup truck outside her home. He was asleep and sweating profusely. On a
second call shortly thereafter, Varnadore reported to the 911 operator that Foskey
had awakened and “took off in the truck.” She also said he was “staggering around
and talking crazy” and that a “needle had fallen out of the truck.” Finally,
Varnadore reported to the 911 operator that Foskey told her before he left: “I’m not
going to jail, I want to die.”
Merritt, then a sheriff’s deputy in Jeff Davis County, was dispatched to
Varnadore’s residence. He arrived in the area shortly before 9:15 a.m. just as
Foskey’s truck spun out onto the two-lane highway fronting Varnadore’s home.
Merritt activated the blue lights on his patrol car, informed the 911 center he had
seen the truck, and began to pursue Foskey. During the two-minute chase that
followed, all of which is captured on Merritt’s dashboard camera, Merritt’s patrol
car reached speeds of 100 miles per hour or more. Foskey’s truck was at times “all
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over the road,” and he drove in the wrong lane for several seconds shortly after an
oncoming car passed going the opposite direction.
Merritt caught up with Foskey just as the truck returned to the correct lane.
The two vehicles crossed a small bridge and Foskey slammed on his brakes,
bringing the truck to a sudden and forceful stop. The two left wheels of the truck
came to rest near the white line marking the right shoulder of the road, and the
right side of the truck was parked in the grass alongside a dense tree line next to
the road. Merritt stopped his patrol car about sixteen yards behind Foskey’s truck
and positioned himself behind the open driver’s side door of his patrol car. By
now, the 911 operator had informed Merritt that Foskey was under the influence
and suicidal.
Merritt’s dashboard camera also captured the brief roadside encounter that
followed. A moment after Merritt’s patrol car comes to a complete stop, Foskey is
shown swinging open the driver-side door of his truck. He then immediately steps
out of the truck and faces his body toward Merritt’s patrol car (with his back to the
truck’s open driver-side door). Foskey then stares in Merritt’s direction for a few
seconds as he appears to reach around inside the truck as if grasping for something.
Although the video from Merritt’s dashboard camera did not record any audio,
Merritt’s testimony reveals—and Varnadore does not dispute—that Merritt twice
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told Foskey to “show me your hands” (once before drawing his handgun and once
after). According to Merritt, Foskey yelled back at him and said “no.”
The dashboard camera then shows Foskey’s head and upper body disappear
from view as he leans inside the truck. The center console of the truck appears to
open.1 Two to three seconds later, Foskey jumps from the truck—facing Merritt’s
patrol car—and pulls his right arm across his body. His right hand moves quickly
from the left side of his torso near his beltline upward and toward Merritt. Several
unidentified objects are visible in his right hand. Merritt fires a single shot from
his handgun.2 The shot strikes Foskey in the neck and he falls to the ground.
Only twenty seconds passed from the time Merritt stopped his car behind
Foskey until the time he fired his handgun. Aside from having his handgun trained
on Foskey and instructing him at least twice to show his hands, Merritt gave no
express warning that he would use deadly force. It was later discovered that
Foskey was unarmed. The unidentified objects in his right hand were a CD case
and two pieces of paper. Foskey eventually died at the scene.
II. PROCEDURAL BACKGROUND
Varnadore filed an action in the United States District Court for the Southern
District of Georgia seeking damages under
42 U.S.C. § 1983 for a violation of the
1
Merritt later testified that he did see Foskey “flip the console.”
2
Merritt also testified that, at this point in time, he was “backing up” toward the driver-
side taillight of his patrol car in an effort to seek safe cover.
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Fourth Amendment to the United States Constitution. She also alleged several
state law claims and asked the district court to exercise its supplemental
jurisdiction to consider those claims. The parties conducted limited discovery, and
Merritt moved for summary judgment on grounds that he did not use excessive
force because the act of shooting Foskey was objectively reasonable under the
circumstances. He also argued he was entitled to qualified immunity because case
law had not clearly established that the force he used under the circumstances was
unlawful. As to the state law claims, Merritt argued that he was entitled to official
immunity.
The district court granted Merritt’s motion for summary judgment. Relying
heavily on the video evidence taken from Merritt’s dashboard camera, the district
court concluded that Merritt did not use excessive force in violation of the Fourth
Amendment because “it was objectively reasonable for [Merritt] to believe that he
was in a sho[o]t or be shot situation.” In particular, the district court first found
that Foskey’s erratic driving during the traffic chase potentially put others at risk
but would not alone support the use of deadly force because it would not put a
reasonable officer on notice that Foskey might be armed or violent. It then focused
on Foskey’s behavior during the roadside encounter and concluded that he “would
have appeared to a reasonable officer to be gravely dangerous.” Among other
things, the district court emphasized the manner in which “Foskey quickly [swung]
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his body around in one fast motion, out of the car,” and also how “Foskey’s hand
swung up from the waist, across his body, and directly toward Deputy Merritt like
someone raising a handgun about to fire.” Finally, the district court noted that
Foskey “refused to comply with Deputy Merritt’s order to show his hands,” instead
hiding his hands in the truck and opening the center console.
The district court also exercised its discretion to decide Varnadore’s state
law claims. It did so primarily at the insistence of Varnadore’s counsel, who
acknowledged at a hearing before the district court that “if you [the district court]
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.”
The district court concluded that Merritt was entitled to official immunity under
Georgia law because he acted reasonably and without “actual malice” in this case.
This appeal followed.
III. ARGUMENTS ON APPEAL
On appeal, Varnadore argues that summary judgment was inappropriate
because a reasonable jury could find that Merritt’s use of deadly force against
Foskey was not objectively reasonable under the circumstances. In making this
argument, Varnadore points to the fact that Merritt had interacted with Foskey
before and that Foskey had not acted aggressively toward Merritt during those
encounters. She also points out that the 911 operator did not inform Merritt that
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Foskey was armed and that Merritt did not ask whether he might be. She notes that
Merritt had an unobstructed view of Foskey in broad daylight, and that he should
have clearly seen that Foskey did not have a gun in his hand. She argues that
Merritt was protected by his patrol car when he shot, and that it was not necessarily
reasonable for Merritt to think Foskey was capable of shooting him given the fact
that Foskey was under the influence of narcotics. She contends Foskey was not
resisting arrest and, even if he were, Merritt never gave a warning that he planned
to use deadly force. In sum, Varnadore insists that Merritt’s subjective belief that
Foskey had a gun and might shoot him is insufficient to establish probable cause
for the use of deadly force. As was the case before the district court, Varnadore
agrees that her state law claims should rise or fall with the federal § 1983 action.
In response, Merritt argues that the district court correctly determined—and
the video evidence clearly shows—that his use of force was objectively reasonable.
He contends that Foskey would have appeared to be gravely dangerous to any
reasonable officer faced with the circumstances depicted in the video taken from
Merritt’s dashboard camera. In the alternative, Merritt argues that he is entitled to
qualified immunity because case law has not clearly established a bright-line rule
that would have put him on notice that his actions violated the Fourth Amendment.
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IV. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court. Stephens v. DeGiovanni,
852 F.3d
1298, 1313 (11th Cir. 2017). “Summary judgment is appropriate if the evidence
before the court demonstrates that ‘there is no genuine dispute of material fact and
that the moving party is entitled to judgment as a matter of law.’” Taylor v.
Hughes,
920 F.3d 729, 732 (11th Cir. 2019) (quoting Fed. R. Civ. P. 56(a)). In
determining whether summary judgment is appropriate, “we view all evidence and
make all reasonable inferences in favor of the party opposing summary judgment.”
Whatley v. CNA Ins. Cos.,
189 F.3d 1310, 1313 (11th Cir. 1999). In cases
involving a qualified immunity defense, “this usually means adopting . . . the
plaintiff’s version of the facts.” Scott v. Harris,
550 U.S. 372, 378,
127 S. Ct.
1769, 1775 (2007). However, “[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. at 380,
127 S. Ct. at 1776. This is
especially the case when clear video evidence is in the record. Indeed, when there
are no allegations or indications that video evidence has been doctored, or that the
video shows something different than what actually happened, the Supreme Court
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has indicated that we should “view[] the facts in the light depicted by the
videotape.”
Id. at 378, 380–81,
127 S. Ct. at 1775–76.
V. DISCUSSION
The district court did not err when it granted Merritt’s motion for summary
judgment because no reasonable jury could conclude that Merritt lacked an
objectively reasonable basis for using deadly force against Foskey. In the light of
the video evidence of Merritt’s brief but lethal encounter with Foskey on May 22,
2014, it is clear to us that any reasonable officer in Merritt’s position would have
viewed Foskey as an immediate and serious threat to his or her own safety.
Qualified immunity protects “government officials performing discretionary
functions . . . from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.”3 Harlow v. Fitzgerald,
457 U.S. 800, 818,
102 S. Ct.
2727, 2738 (1982). The qualified immunity defense balances “the need to hold
public officials accountable when they exercise power irresponsibly and the need
to shield officials from harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan,
555 U.S. 223, 231,
129 S. Ct. 808,
815 (2009). This permits officials to perform their work without fear of liability,
3
There is no question in this case that Merritt was acting in his discretionary capacity as
a deputy sheriff when the challenged shooting occurred.
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protecting “all but the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs,
475 U.S. 335, 341,
106 S. Ct. 1092, 1096 (1986).
Once asserted, a plaintiff must make two showings to overcome an official’s
qualified immunity defense. See Griffin Indus., Inc. v. Irvin,
496 F.3d 1189,
1199–1200 (11th Cir. 2007). The plaintiff must show (1) that the official violated
a constitutional right, and (2) that the right was “clearly established.”
Id. This
Court is now “permitted to exercise [its] sound discretion in deciding which of the
two prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.” Pearson,
555 U.S. at 236,
129 S.
Ct. at 818. Because we conclude that Merritt did not violate Foskey’s Fourth
Amendment rights in this case, it necessarily follows that there was no violation of
a clearly established right.
The Fourth Amendment provides a “right of the people to be secure in their
persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV.
This “freedom from unreasonable searches and seizures encompasses the right to
be free from excessive force during the course of a criminal apprehension.” Oliver
v. Fiorino,
586 F.3d 898, 905 (11th Cir. 2009) (citing Graham v. Connor,
490 U.S.
386, 394–95,
109 S. Ct. 1865 (1989)); Mercado v. City of Orlando,
407 F.3d 1152,
1156 (11th Cir. 2005)). Thus, all claims that a law enforcement official has used
excessive force in apprehending a suspect are analyzed under the Fourth
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Amendment’s “objective reasonableness” standard, meaning that the question we
must ask “is whether the officer[’s] actions are ‘objectively reasonable’ in light of
the facts and circumstances confronting them, without regard to their underlying
intent or motivation.” Graham,
490 U.S. at 397,
109 S. Ct. at 1872.
The force used to affect the seizure “must be reasonably proportionate to the
need for that force.” Shaw v. City of Selma,
884 F.3d 1093, 1099 (11th Cir. 2018).
Three nonexclusive factors guide this totality-of-the-circumstances inquiry,
“including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officer[] or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Graham,
490 U.S. at 396,
109 S. Ct. at 1872. These three factors serve only as a guide, and it is not
necessary in all cases for an officer to show that all three factors weigh in his or her
favor to establish that the force ultimately used was reasonably proportionate to the
need for force. See Shaw, 884 F.3d at 1098–1100 & n.5 (noting that “[t]he
reasonableness of the shooting depends on the totality of the circumstances” and
concluding that, in a case involving a mentally ill victim wielding a hatchet, the
outcome of the appeal “turn[ed] on the second of these factors: presence of an
imminent threat”).
As in Shaw, the outcome of this appeal turns on the presence of an
immediate threat. In focusing our inquiry on the second of the three factors
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outlined above (i.e., the immediacy of a serious threat), the issue we are called
upon to determine is whether an officer in Merritt’s position reasonably could have
believed that Foskey posed a serious threat when he ignored Merritt’s orders to
show his hands and instead reached around inside his truck, jumped out of his
truck, and then quickly raised his right hand toward Merritt and away from his
beltline while holding unidentified objects. Under the totality of the circumstances
of this case—and as evidenced by the clear video evidence from Merritt’s
dashboard camera—we hold that a reasonable officer in Merritt’s position
reasonably could have believed that Foskey posed a serious threat to his or her own
safety.
To begin, Foskey drove erratically during a brief traffic pursuit and brought
his truck to a sudden and forceful stop. He quickly exited his vehicle and stared in
Merritt’s direction. Ignoring Merritt’s orders to show his hands, Foskey reached
around inside his truck and appeared to be grasping for something. He also
appeared to open the center console inside his truck. By this time, 911 operators
had also informed Merritt that Foskey was under the influence and suicidal.
Although it may be that Merritt would not have had an objectively reasonable basis
for using deadly force against Foskey at this moment in time (i.e., before he
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jumped out of his truck),4 what happens next is, in the light of everything that
came before, most critical to our disposition of this appeal.
Next, the video clearly shows Foskey abruptly jumping out of his truck,
facing in the direction of Merritt’s patrol car, and quickly raising his right arm
toward Merritt and away from his beltline as if pulling a gun from his waist.
Importantly, Varnadore does not argue on appeal that the video taken from
Merritt’s dashboard camera has been doctored, or that the video shows something
other than what actually happened. Instead, she argues that Merritt should not
have fired because he had previously interacted with Foskey; or because Merritt
could see clearly; or because with a couple more steps, Merritt could have been
safe behind the patrol car; or because Foskey was under the influence and could
not have fired an accurate shot even if he had possessed a gun; or because Merritt
did not ask the 911 operator if Foskey was armed. Although one or more of these
observations may be true, “[s]peculation does not create a genuine issue of fact”
for purposes of summary judgment. Cordoba v. Dillard’s, Inc.,
419 F.3d 1169,
1181 (11th Cir. 2005). Moreover, in the context of cases involving allegations of
excessive force, after-the-fact “[r]econsideration will nearly always reveal that
something different could have been done if the officer knew the future before it
4
We expressly decline to decide whether or not that is true because Foskey’s behavior in
the seconds that follow his reaching around inside the truck informs our decision in this case.
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occurred.” Carr v. Tatangelo,
338 F.3d 1259, 1270 (11th Cir. 2003). “This is what
we mean when we say we refuse to second-guess the officer.”
Id. Thus, in the
light of the clear video evidence of Foskey’s behavior in the minutes (and in
particular the seconds) before Merritt shot him, Varnadore’s arguments are
insufficient to create a genuine issue of material fact that would defeat Merritt’s
motion for summary judgment. The video evidence makes it clear to us that no
reasonable jury could conclude that Merritt lacked an objectively reasonable basis
for believing that Foskey posed a serious threat to his own safety, and the district
court did not err in granting Merritt’s motion for summary judgment on that basis.5
This conclusion is not altered by the fact that Foskey turned out to be
unarmed. As noted above, “[i]n cases involving excessive force claims it is
doctrinal gospel that we do not view an officer’s actions with the 20/20 vision of
hindsight.” Shaw, 884 F.3d at 1100 (citation and internal quotation marks
omitted). Courts considering an alleged use of excessive force must also consider
5
Although it is not necessary in this case to weigh all three of the Graham factors to
decide in Merritt’s favor, see Shaw, 884 F.3d at 1099 n.5, we note that Foskey’s refusal to
comply with Merritt’s orders to show his hands further weighs in favor of affirming the district
court’s decision. Under the circumstances, Foskey’s refusal to show his hands probably means
that he was “actively resisting arrest” when Merritt shot him. See Graham,
490 U.S. at 396,
109
S. Ct. at 1872. But even if he was not resisting arrest as a matter of law, the particular manner in
which Foskey refused to cooperate with Merritt is crucial to our reasonableness analysis. Foskey
did not simply refuse Merritt’s orders to show his hands. Instead, he reached inside the cabin of
his truck, unexpectedly jumped out of the cabin, and quickly raised his hand toward Merritt
while holding something in his hand. Thus, although we focus our attention primarily on
Foskey’s behavior as evidenced by the video taken from Merritt’s dashboard camera, it is not
entirely irrelevant to our objective reasonableness inquiry that Foskey acted in such a manner
despite Merritt’s orders to show his hands.
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that officers are often called upon to act “in tense, uncertain, and rapidly evolving
situations.”
Id. (citation and internal quotation marks omitted). Given these
realities, this Court has held that an officer who uses deadly force may still be
entitled to qualified immunity even if he mistakenly believed the suspect was
armed so long as that belief was reasonable under the circumstances. See, e.g.,
Penley v. Eslinger,
605 F.3d 843, 846, 851–54 (11th Cir. 2010) (affirming district
court’s grant of qualified immunity to officer who shot and killed fifteen-year-old
student after student took classmate hostage and later pointed what turned out to be
a toy gun at the officer during a standoff inside the school).
Thus, even though we now know that Foskey had retrieved a CD case and
two pieces of paper from inside the cabin of his truck—and that he was raising
those items (and not a gun) from his beltline and toward Merritt after exiting his
truck—the relevant inquiry remains whether, even though he did not actually have
a gun, would Foskey “have appeared to reasonable police officers to have been
gravely dangerous[?]”
Id. at 851. Our precedents—together with Merritt’s
dashboard camera video—make it clear that reasonable police officers would have
viewed Foskey as gravely dangerous given his behavior before and during the
twenty-second roadside encounter.
We also decline to disturb the district court’s decision on grounds that
Merritt did not give Foskey a warning that he planned to use deadly force. Even
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assuming that Merritt’s orders demanding that Foskey show his hands (the second
of which was preceded by Merritt aiming his handgun at Foskey) would not have
been sufficient to warn Foskey that Merritt intended use deadly force, this Court
has expressly “decline[d] . . . to fashion an inflexible rule that, in order to avoid
civil liability, an officer must always warn his suspect before firing—particularly
where, as here, such a warning might easily have cost the officer his life.” Carr,
338 F.3d at 1269 n.19 (citation omitted). Moreover, the facts of this case are easily
distinguishable from the facts in Tennessee v. Garner,
471 U.S. 1,
105 S. Ct. 1694
(1985) (requiring a warning before deadly force is used under certain
circumstances), which involved a fleeing, unarmed suspect who did not reasonably
appear to pose an immediate threat to the officer. See Penley,
605 F.3d at 854 n.6
(distinguishing Garner in the context of a case, more like this one, where the
suspect “posed a real threat to the lives of officers”). Even assuming arguendo that
Garner is factually similar to and thus governs this case, we would still affirm the
district court because it would not have been “feasible” for Merritt to warn that he
intended to use deadly force against Foskey in the split-second after Foskey
jumped from his truck.
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VI. CONCLUSION
In the light of all of the attendant circumstances of this case, as they might
be viewed by a reasonable officer in Merritt’s position, 6 we conclude that Merritt
did not use excessive force in violation of Foskey’s Fourth Amendment rights. In
reaching this conclusion, we emphasize the manner in which Foskey initially
exited his truck (after being pursued at high speeds), then reached around inside
the truck (despite orders to show his hands), and then quickly jumped out of the
truck (raising several unidentified objects from his beltline toward Merritt as if
pulling a gun from his waist). In addition to the clear video evidence, we further
consider that an officer in Merritt’s position would have witnessed all of this
behavior knowing that Foskey was under the influence and suicidal. Taken
together, these facts clearly indicate that a reasonable officer would have been
justified in believing that Foskey posed an immediate and serious threat to his or
her own safety. Because he did not violate Foskey’s Fourth Amendment rights,
Merritt is entitled to qualified immunity. 7 The order of the district court granting
6
To be clear, we do not decide in Merritt’s favor because of his testimony that he “just
thought [Foskey] had a gun.” Rather, we decide in Merritt’s favor because, based on the record
before us, it was objectively reasonable for an officer in Merritt’s situation to believe that Foskey
had a gun and thus posed an immediate and serious threat to his safety.
7
Given this conclusion, and given Varnadore’s admissions before the district court and
this Court that the federal and state law claims should rise or fall together, we also hold that the
district court did not err when it granted Merritt’s motion for summary judgment with respect to
the state law claims asserted in this case.
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Merritt’s motion for summary judgment and dismissing Varnadore’s claims is
therefore
AFFIRMED. 8
8
Any other arguments asserted on appeal by Varnadore are rejected without need for
further discussion.
19
