CA11: Deadly force on an unarmed man proved to be justified in the heat of the moment

An officer’s killing an unarmed man during a traffic stop was reasonable based on the officer’s reasonable reaction to what decedent was doing when he fished around in his vehicle and came out with an unknown object in his hand. The dashcam video supports the use of deadly force. Varnadore v. Merritt, 2019 U.S. App. LEXIS 22548 (11th Cir. July 30, 2019):

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 jumped out of his truck), 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 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.

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 that officers are often called upon to act “in tense, uncertain, and rapidly evolving situations.” Id. …