Varnadore v. Merritt

Decision Date30 September 2018
Docket NumberNO. 2:17-CV-00013,2:17-CV-00013
Citation343 F.Supp.3d 1367
Parties Lisa Veronica VARNADORE, Individually and as Administratrix of the Estate of Decedent Joshua Marshall Foskey or as Next of Friend of Jenna Grayce Foskey, Plaintiff, v. Brandon MERRITT, Individually, Defendant.
CourtU.S. District Court — Southern District of Georgia


This Matter comes before the Court on Defendant Brandon Merritt's Motion for Summary Judgment. Dkt. No. 36. This Motion has been fully briefed and is ripe for review. 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 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. The law does not support Plaintiff's argument. Based on the 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. Dkt. No. 37, Ex. 10, "Initial 911 Call from Vicki Varnadore." In response, Deputy Merritt was dispatched to a residence at 59 West Georgia Avenue. Id."Initial JDSO Dispatch." Deputy Merritt arrived in his vehicle at what turned out to be a neighboring residence. Dkt. No. 37-2 ¶ 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. Id."JDSO Dispatch # 2"; Dkt. No. 37-2 ¶ 4. Nobody reported that Foskey was or might be armed. Dkt. No. 38 at 66. When Deputy Merritt arrived at the neighboring residence, he saw Foskey's truck spin out of the driveway. Dkt. No. 38 at 66. He told the same to the dispatcher and started his pursuit. 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. Deputy Merritt activated his blue lights. Dkt. No. 38 at 36. 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 ¶ 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. Id. at ~1:36, 1:42-47. Deputy Merritt told the 911 dispatcher that "he's all over the road; still can't get him to stop." Dkt. No. 37, Ex. 10, "JDSO Dispatch # 3." 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. Video 1 at ~2:00. 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 ¶ 15; Dkt. No. 45-1, Plaintiff's Response To Statement of Undisputed Material Facts at ¶ 15. Mr. Foskey then reached his hands back inside the truck for about ten seconds while looking at Deputy Merritt. Video 1 at ~2:04-15. 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 ¶ 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. Dkt. No. 37, Ex. 9, GBI Photos DSC_7058, DSC_7082, DSC_7084, DSC_7089, DSC_7088. 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)1 captured audio of Deputy Merritt asking Mr. Foskey for his license, registration, and insurance while cursing 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." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." FindWhat Inv'r Grp. v., 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). 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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant must show the court that there is an absence of evidence to support the nonmoving party's case. See id. at 325, 106 S.Ct. 2548. 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. Anderson, 477 U.S. at 257, 106 S.Ct. 2505.

When considering the 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, 572 U.S. 650, 134 S.Ct. 1861, 1863, 188 L.Ed.2d 895 (2014) ). But, in cases with a video in evidence that obviously contradicts the nonmovant's version of the facts, the Court " ‘view[s] 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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ).

In a use-of-force case, the facts must be...

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