[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-14568

Non-Argument Calendar

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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 driverside 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.

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