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Foster v. Lofton

United States District Court, N.D. Georgia, Gainesville Division

January 16, 2020




         This case comes before the Court on Motions for Summary Judgment from Defendants Chief Allan Johnston and the City of Statham [Dkt. 48] and from Defendant Officer Marc Lofton [Dkt. 50] as well as Plaintiffs' Motion for Leave to File Excess Pages [Dkt. 57] and Defendants' Motion to Exclude Declarations Submitted by Plaintiffs [Dkt. 61]. As a preliminary matter, Plaintiffs' Motion for Leave to File Excess Pages [Dkt. 57] is GRANTED. As for the rest, the Court, after a careful review of the record, enters the following Order.


         This civil rights case stems from the allegedly unlawful arrests of Plaintiff Carrie Foster and her husband Plaintiff Tony Foster by Defendant Officer Marc Lofton. At the time of the arrests, Lofton was a police officer for the City of Statham under the supervision of Police Chief Allan Johnston. [Dkt. 48-1 at 1-2].

         Before working for the City of Statham, Lofton worked for the City of Winder, where his performance reviews had been less than satisfactory [Dkt. 58-13], and where he had been put on probation for deficiencies in criminal procedure, particularly with regard to searches and seizures. [Dkt. 58-12]. Lofton was known for making a high number of DUI arrests involving alleged impairments due to drugs, rather than alcohol, even though he had not received the appropriate training to do so.[1] In fact, before coming to Statham, Lofton had previously arrested Carrie Foster for the same charge.

         This time around, he arrested her, and when her husband approached the scene, Lofton tased him and arrested him too. Both spouses sued Lofton, his supervisor Chief Allan Johnston, and the City of Statham.

         1. Carrie Foster's Arrest

         On a December afternoon in 2015, Lofton initiated a traffic stop of Ms. Foster while she was driving home from her work at the local Waffle House. [Dkt. 50-2 at ¶ 37]. Lofton informed Ms. Foster that he pulled her over for speeding. [Id.; Video 1 at 2:36]. Ms. Foster provided Lofton with a copy of a restricted license that was issued to her following a previous DUI arrest, which, incidentally, was also an arrest by Lofton. [Dkt. 48-2, ¶ 3]. Lofton observed that Ms. Foster was nervous and fidgety. [Dkt. 50-2, ¶¶ 41-42]. Lofton asked Ms. Foster if she was taking any medications, to which she replied that she took Goody's powders and Coricidin at night. [Id., ¶ 43].

         Lofton then told Ms. Foster that he was “noticing a couple of things, ” and asked Ms. Foster to step out of her vehicle. [Dkt. 48-2, ¶¶ 6-7]. Lofton again asked Ms. Foster what medications she had taken, and again she confirmed that she took Goody's powders in the morning and Coricidin at night. [Id., ¶ 10]. Ms. Foster explained to Lofton that she had a herniated disc and a cracked hip, but she did not take any pain medication. [Dkt. 50-2, ¶ 50]. Lofton elected to perform a field sobriety test. [Video 1 at 12:51-13:13].

         Lofton first performed the horizontal gaze nystagmus exercise (“HGN test”), instructing Ms. Foster to follow the tip of Lofton's pen with her eyes while not moving her head. [Dkt. 50-2, ¶ 51]. During the HGN test, Lofton allegedly observed three indicators that Ms. Foster was under the influence of drugs or alcohol: “(1) lack of smooth pursuit in both eyes, (2) distinct and sustained nystagmus at maximum deviation in both [] eyes, and (3) onset of nystagmus prior to 45 degrees in both eyes.” [Id., ¶ 53].

         Lofton then instructed Ms. Foster to perform the walk-and-turn exercise. [Id., ¶ 54]. Lofton directed Ms. Foster to keep her hands by her side and to “take nine [heel-to-toe] steps, then on the ninth step, to keep her lead foot planted and take a series of small steps to rotate around and take nine heel-to-toe steps back.” [Id., ¶¶ 56-57]. During the exercise, Lofton observed that Ms. Foster “had trouble balancing during the instruction stage, had to use her arms to balance, made an improper turn, and stopped while walking.” [Id., ¶ 58].

         Just after Ms. Foster completed the walk-and-turn exercise, Mr. Foster drove by the traffic stop on a lawnmower. [Id., ¶ 59].

         Lofton then elected not to conduct a one-leg stand exercise due to Ms. Foster's expressed physical limitations. [Id., ¶ 61]. Instead, Lofton instructed Ms. Foster to perform a finger-to-nose exercise. [Dkt. 48-2, ¶ 20]. During the exercise, Lofton allegedly observed Ms. Foster miss the tip of her nose several times. [Id., ¶ 21]. Finally, Lofton instructed Ms. Foster to “recite the alphabet from letters H through Q, ” which she completed without deficiency. [Dkt. 50-2, ¶¶ 65-66].

         Upon completion of the field sobriety tests, Lofton returned to his patrol vehicle to review his dash cam footage of the exercises and determined that Ms. Foster was “driving under the influence of some substance and was less safe to drive.” [Id., ¶ 67]. Lofton's microphone remained off for some time when he exited his vehicle to discuss his findings with Ms. Foster. [Video 1 at 28:35-35:29].

         When Lofton's microphone came back on, he was in the middle of explaining to Ms. Foster that “what [he] was seeing” was “not normal.” [Id. at 39:50-40:05]. Ms. Foster responded that she had never been able to walk straight, and that “[it was] probably because of that medicine [she] took.” [Id. at 40:30- 41:00]. Ms. Foster added that she “took too much of that medicine. I understand that I did and that was wrong of me.” [Id. at 41:20-41:30].

         Lofton then initiated the arrest of Ms. Foster, instructing her to turn around and place her hands behind her back. [Id. at 41:46]. Lofton threatened to tase Ms. Foster if she did not comply with his instructions. [Id. at 41:49-42:22]. After being handcuffed, Ms. Foster yelled to Mr. Foster, who had stopped nearby, to “get Jake . . . he's doing it again, ” at which point Lofton threatened to charge Ms. Foster with obstruction. [Id. at 42:40-43:20]. Ms. Foster yelled to her husband a second time while Lofton was placing her in the backseat of his patrol vehicle. [Id. at 43:04]. Ms. Foster was charged with disorderly conduct, DUI - drugs less safe, and failure to maintain lane. [Dkt. 50-2, ¶ 84].

         2. Tony Foster's Arrest

         As Ms. Foster was being placed in Lofton's patrol vehicle, Mr. Foster approached the scene of the stop and asked Lofton why Ms. Foster was being arrested. [Video 1 at 43:04-43:48]. Lofton told Mr. Foster that his wife was being arrested for a DUI and to “shut [his] mouth and leave my stop before [he goes] to jail with her.” [Id.]. Mr. Foster then allegedly left the stop but mumbled that Lofton was a “dickhead.” [Dkt. 46, T. Foster Dep. at 23:16-13].

         Lofton then instructed Mr. Foster to turn around and to get on the ground, to which Mr. Foster replied, “I haven't done nothing.” [Video 1 at 44:16-44:27]. Lofton then tased Mr. Foster, but the taser did not make a good connection and was ineffective. [Dkt. 50-2, ¶¶ 78-79]. Lofton continued to instruct Mr. Foster to “get on the ground if you don't want to get lit up again” and then tased Mr. Foster a second time. [Id., ¶ 80; Video 1 at 44:30-44:40]. Lofton then instructed Mr. Foster, who was now on the ground, to “roll over [and] put your hands behind your back, or you're going to get it again.” [Video 1 at 44:52]. After a brief back and forth, Lofton deployed his taser a third time. [Dkt. 50-2, ¶ 81].

         Lofton allegedly placed his knee in Mr. Foster's back and radioed to dispatch. [Dkt. 46, T. Foster Dep. at 32:24; Video 1 at 45:44-46:15]. Mr. Foster allegedly struggled to breathe and began audibly gasping for air. [Dkt. 46, T. Foster Dep. at 34:3-9; Video 1 at 48:40]. Lofton told Mr. Foster to “keep talking to [him]” and asked Mr. Foster “how much have you had to drink?” [Video 1 at 49:20-49:38]. Mr. Foster responded that he had “one beer.” [Id. at 49:39].

         An ambulance appeared on scene and began tending to Mr. Foster as Lofton described the incident to the paramedics. [Id. at 53:30]. After Mr. Foster received medical attention, Lofton placed Mr. Foster under arrest. [Video 2 at 1:00]. Mr. Foster was charged with public drunkenness and obstruction. [Dkt. 50-2, ¶ 88].

         3. Charges and Guilty Pleas

         Ms. Foster, while represented by counsel, pled guilty to failure to maintain lane. [Dkt. 48-10, Ex. G]. Her remaining charges of DUI - drugs less safe and disorderly conduct were dismissed. [Dkt. 58-8, Ex. E]. Mr. Foster forfeited his bond for the public intoxication charge; his obstruction charge was dismissed. [Dkt. 48-13, Ex. J].

         4. Procedural History

         In their Complaint, the Fosters asserted various § 1983 claims: Unlawful Seizure, False Arrest, Malicious Prosecution, and First Amendment Retaliation on behalf of Ms. Foster (Counts I-IV); False Arrest, First Amendment Retaliation, and Excessive Force on behalf of Mr. Foster (Counts V-VII); and punitive damages (Count VIII). They also asserted tort claims under Georgia Law on behalf of both Plaintiffs (Count IX).



         The Defendants moved jointly to strike three declarations [Dkts. 58-5, 58-7, 58-22] submitted by the Fosters in support of their Response to the Motion for Summary Judgment. But the reasons put forth by the Defendants for each of the three declarations do not warrant striking them. For Hilliard, [Dkt. 58-7], they argue that Plaintiffs failed to disclose him as a witness; but Hilliard was identified in the depositions, and so the Defendants should not be surprised by his inclusion. For both Ott [Dkt. 58-5] and Duffel [Dkt. 58-22], the Defendants argue that the Fosters did not properly identify them as expert witnesses. But Ott was so identified, [2] and Duffel's testimony is that of a fact witness, not an expert.

         Accordingly, Defendants' Joint Motion to Exclude [Dkt. 61] is DENIED. The declarations will not be stricken.


         The standard for summary judgment is well-established. Summary judgment must be granted “if 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). Summary judgment is improper, however, “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th Cir. 2019).

         In conducting its review, the Court must “consider the record and draw all reasonable inferences in the light most favorable to the non-moving party.” Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir. 2018). A court may grant summary judgment only when, after viewing all evidence in the light most favorable to the non-moving party-in a § 1983 case, typically the plaintiff-the court determines that no genuine dispute of material fact exists, and the movant is entitled to judgment as a matter of law. Id. at 1360.


         Ms. Carrie Foster claims that Officer Lofton unlawfully detained her, falsely arrested her, and maliciously prosecuted her, all in violation of her Fourth Amendment rights.[3] She also makes similar claims, along with claims for assault and battery, under the applicable Georgia laws. Officer Lofton contends that the stop and arrest were lawful. He also argues that, even if his actions were not lawful, Ms. Foster's claims still fail because he is entitled to immunity and because the claims are barred by her guilty plea and conviction.

         A. Unlawful Detention

         “[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Jackson v. Sauls, 206 F.3d 1156, 1165 (11th Cir. 2000) (citing Illinois v. Wardlow, 528 U.S. 119 (2000)). “While reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.” Id. (internal citations omitted). In particular, reasonable suspicion exists when “the officer can point to specific and articulable facts which, taken together with rational inferences from those facts support an objectively reasonable suspicion that the defendant had engaged in a crime.” Young v. Brady, 2019 WL 5829507, at *3 (11th Cir. Nov. 7, 2019) (citing United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010)) (internal quotations omitted). “This objective justification must exist at the onset of the stop.” Id.

         However, “[a] law enforcement official who reasonably but mistakenly concludes that reasonable suspicion is present is still entitled to qualified immunity.” Jackson, 206 F.3d at 1165-66. Thus, “[w]hen an officer asserts qualified immunity, the issue is not whether reasonable suspicion existed in fact, but whether the officer had arguable reasonable suspicion to support an investigatory stop.” Id. at 1166. (emphasis added). To determine whether arguable reasonable suspicion existed, a Court must “consider whether an official had reasonable suspicion as an objective question viewed from the standpoint of a reasonable official at the scene and based on the totality of the circumstances.” Young, 2019 WL 5829507, at *3 (citing Hicks v. Moore, 422 F.3d 1246, 1252 (11th Cir. 2005)) (internal quotations omitted).

         Here, Lofton argues that his stop of Ms. Foster was not an “unreasonable seizure” under the Fourth Amendment because he had reasonable suspicion-or at least arguable reasonable suspicion-to stop her for two different traffic violations: speeding, in violation of O.C.G.A. § 40-6-181, and failure to maintain her lane, in violation of § 40-6-48(1).[4] But Lofton's contention is belied by the evidence in almost every respect.

         As for speeding, there is a very clear fact dispute about Ms. Foster's speed. Lofton claims she was driving at 50 mph in a 45-mph zone. That, he explained to her at the time, is why he stopped her. However, beginning with her initial discussion with Lofton during the stop, which is captured on video, and continuing through her argument here, Ms. Lofton maintains that she was driving 35 mph. And she reasonably argues that she was taking care to drive cautiously, because she was already on a limited permit and because she saw the police car trailing her. Further, after having reviewed the video, Lofton ultimately declined to cite her for speeding, even as he cited her for a separate traffic violation.

         The video evidence is inconclusive based on the Court's review, it does not appear that Ms. Lofton is driving particularly fast, and she does not pass any cars before being pulled over. See United States v. Latimore, 2014 WL 3109183, at *15 (N.D.Ga. July 7, 2014) (car seen passing two other vehicles). Further, she does not appear to gain ground on the car in front of her. Construing all these facts in her favor, the Court concludes that whether there was evidence of speeding to support arguable reasonable suspicion involves a genuine dispute of fact. Summary judgment is not warranted on that basis.

         The evidence for a failure to maintain lane is a closer call. Georgia law states that “[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” § 40-6-48(1). Lofton stated in his affidavit that he stopped Ms. Foster in part because she “crossed over” the fog line, that is, the white line that demarcates the edge of the right lane (or in this case, the only lane in that direction) from the shoulder. [Dkt. 50-3 at ¶ 88]. If Ms. Foster in fact crossed it, that would establish reasonable suspicion that she violated the statute. See Phillips v. State, 789 S.E.2d 421, 422 (Ga.Ct.App. 2016).

         Lofton argues that the video shows conclusively that she crossed the line. Not so. In the video, the critical moment occurs at 0:22-24 seconds. There, for a brief moment as the road bends to the right, Ms. Foster's right tires approach and perhaps touch the right edge of the road. But upon careful review of the video, a few key facts emerge: first, the white “fog line, ” which is clearly present on the earlier stretch of road, stops before that point, at approximately 0:20. That means where her tires draw near to the edge, there is no highly-visible fog line against which to measure her car's position. Second, it is not conclusive that she actually touches the edge at 0:23, when she is farthest to the right. Pausing the video reveals that there is a sliver of road visible between her tires and the edge both immediately before, at 0:22, and immediately after, at 0:24. Further, at 0:24, it appears that the spot where it looks like she touched just a second before is actually draped in shadow, so that the edge of the road is not clearly visible. Thus, a jury could reasonably conclude from the video that she did not actually touch-much less cross-the fog line.

         Even if the Court were to find conclusively that the tires did touch the line, still that may not be enough. Courts in this district addressing similar stops have said that simply touching the edge of a lane, on its own, is not enough for reasonable suspicion. See United States v. Santana, 2018 WL 7283633, at *7 (N.D.Ga. Sept. 19, 2018), report and recommendation adopted, 2019 WL 365743 (N.D.Ga. Jan. 30, 2019) (citing cases).[5] There must be some other factor, like weaving within a lane or driving at an unusual hour, to justify the stop. Id. Here, there were no additional factors giving rise to any suspicion-except for the potential speed, which, as noted above, cannot be definitively determined here-thus, the mere touching of ...

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