United States District Court, N.D. Georgia, Gainesville Division
RICHARD W. STORY UNITED STATES DISTRICT JUDGE
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
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].
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. In fact, before coming to Statham, Lofton
had previously arrested Carrie Foster for the same charge.
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.
Carrie Foster's Arrest
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.,
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].
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.,
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].
after Ms. Foster completed the walk-and-turn exercise, Mr.
Foster drove by the traffic stop on a lawnmower.
[Id., ¶ 59].
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].
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
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].
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].
Tony Foster's Arrest
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
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].
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].
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].
Charges and Guilty Pleas
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].
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).
MOTION TO STRIKE DECLARATIONS
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,  and Duffel's testimony is that of a
fact witness, not an expert.
Defendants' Joint Motion to Exclude [Dkt. 61] is
DENIED. The declarations will not be
SUMMARY JUDGMENT STANDARD
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).
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.
CARRIE FOSTER'S CLAIMS AGAINST OFFICER LOFTON
Carrie Foster claims that Officer Lofton unlawfully detained
her, falsely arrested her, and maliciously prosecuted her,
all in violation of her Fourth Amendment
rights. 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.
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.”
“[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
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). But Lofton's contention is belied by
the evidence in almost every respect.
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.
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.
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).
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
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). 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 ...