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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12078
Non-Argument Calendar
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D.C. Docket No. 4:18-cv-00053-HLM
PHILLIP WAYNE KOGER,
Plaintiff - Appellee,
versus
GREGGORY CARSON,
Individually,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 30, 2021)
Before MARTIN, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
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This case arises out of the arrest of Phillip Wayne Koger following a high-
speed car chase. Koger sued Sergeant Greggory Carson, among others, alleging
that the officers violated his Fourth Amendment rights by using excessive force
when they arrested him. Carson moved for summary judgment on the basis of
qualified immunity, and the district court denied his motion. Carson now appeals.
After a careful review of the record, we affirm.
I. FACTUAL BACKGROUND
A. Pursuit and Crash
In March 2017, Koger was driving a white Camaro in Hamilton County,
Tennessee. Deputy Brandon Bennett with the Hamilton County Sheriff’s
Department observed that Koger’s license plate was partially obscured, which was
a tag violation. Bennett initiated his blue lights and both parties pulled into a gas
station. As soon as Bennett’s vehicle came to rest at the gas station, Koger
accelerated and fled. Bennett began pursuing Koger, following him across the
state line into Georgia. After a few minutes, other officers and agencies joined the
pursuit. Koger estimates that he was travelling at approximately 90 miles per hour.
Koger continued to lead multiple agencies on a high-speed chase through
north Georgia. After unsuccessfully attempting to stop Koger using spike strips,
Bennett hit Koger’s car with the front end of his patrol car. This caused Koger’s
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car to veer into the median of the highway before crossing into oncoming lanes and
crashing into the guardrail. Another officer struck Koger’s passenger side door.
B. Koger’s Removal from the Car
Once Koger’s car stopped, officers approached the driver’s side of his car.
Although Koger initially had his hands outside the driver’s side window, as
officers approached he pulled his arms back into the car and shifted his torso
toward the center of the car. Bennett testified that he could clearly see the
backstrap of a pistol in the console.
Multiple officers pulled Koger out of his car and onto the ground. Several
officers testified that Koger immediately began to resist and that they had to use
force to get Koger to comply with their commands and stop resisting. For
instance, Fort Oglethorpe Police Deputy Gebelien testified that Koger engaged in a
physical altercation with officers outside Koger’s car. Several officers assisted in
handcuffing Koger and they eventually had to double-handcuff him due to his level
of resistance. Koger testified that he has no memory of any events that occurred
between being handcuffed and waking up in the hospital hours later.
C. Carson’s Interaction with Koger
Koger was already in handcuffs when Carson, whose summary judgment
motion is on appeal here, arrived at the scene. When Carson arrived, Koger was
lying prone on the ground near the guard rail and near the left front wheel of
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Koger’s car. Carson and Bennett lifted Koger, who was still handcuffed, off the
ground. They then used a “high escort” position to walk him to the rear of a patrol
car. A high escort position is when an arrestee is bent forward at the waist, and it
is a common technique used by law enforcement officers. Carson and Bennett
were the only officers who had their hands on Koger while escorting him to the
rear of the patrol car.
Carson and Bennett testified that Koger began resisting as they were walking
him to the rear of the patrol car. Carson testified that Koger attempted to jerk out
of his grip and “stiff walk,” making it difficult for the officers to control him. And
Bennett testified that as soon as the officers began to walk Koger to the rear of the
patrol car, Koger began to stand up straight, resisting the high escort position.
Bennett further testified that Koger’s sudden movement almost took him on his tip
toes and Carson had to help Bennett bend Koger back over to continue walking
him to the rear of the patrol car.
According to Carson, Bennett attempted to place Koger over the trunk of the
patrol car to keep him from jerking away or pushing back. Other officers testified
they heard yelling and commands being given, which suggested there was a
struggle at the back of the patrol car. Carson and Bennett also testified that when
Carson attempted to pat down Koger, Koger raised his body off the patrol car and
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pushed himself back. Bennett said that he had to lay over Koger’s body to attempt
to keep him on the trunk.
It is at this point the question about the force used comes into dispute.
Carson testified that, while Bennett was trying to hold Koger down over the car,
Carson punched Koger in the back twice “for pain compliance.” When the
punches “didn’t seem to have an effect,” Carson delivered two elbow strikes.
Although Koger’s knees buckled after the first elbow strike, Carson testified that
he struck Koger a second time “just from momentum of being in a fight.”
Carson then began to pat down Koger’s ankles for weapons. According to
Carson and Bennett, Koger immediately began to push himself away from the
trunk and attempted to stand. Carson then struck Koger in the groin, lifting him off
the ground and slamming him onto the trunk.1 After the pat down, Koger slid off
the other side of the trunk. Carson testified that he could hear Koger screaming
that he could not breathe, but he “knew [Koger] could breathe because he’s saying
I can’t breathe.” According to Carson, “when someone that’s [sic] screaming I
can’t breathe, they’re breathing quite well.” Carson did not fear for his life at any
point during the arrest.
1
Because we are reviewing a denial of summary judgment, we describe these facts in the light
most favorable to the non-moving party (here, Koger). See Skop v. City of Atlanta,
485 F.3d
1130, 1136 (11th Cir. 2007). However, we note that Carson’s account differs from Koger’s.
Rather than characterizing this force as a “strike” to Koger’s groin that was used to “slam” him
onto the trunk, Carson says he put his hand between Koger’s legs to lift him onto the trunk. He
says this is a common wrestling move.
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Koger maintains that, at least once his knees buckled as a result of the first
elbow strike, he was not resisting. In other words, according to Koger, he was
handcuffed and not resisting when Carson delivered the second elbow strike and
the uppercut strike to his groin. While Koger has no memory of this portion of his
arrest, he points to testimony from Deputy Todd Cook who said he did not observe
Koger resisting. Although there are dashcam videos that recorded the incident, we
agree with the district court that none clearly depicts whether Koger was resisting.
D. Koger’s Injuries
Following the incident, Koger was transferred to a hospital for treatment.
His medical records indicate that he had decreased color flow to his left testicle
and that he was in danger of testicular infarct. He was diagnosed with a scrotal
contusion but did not need emergency surgical intervention.
II. PROCEDURAL HISTORY
As relevant here, Koger filed suit against Carson under
42 U.S.C. § 1983
alleging violation of his Fourth Amendment right to be free from excessive force.
Carson moved for summary judgment on the basis of qualified immunity. The
district court denied Carson’s motion. The court found that it could not determine
whether Koger was resisting and under Koger’s version of the facts, Carson’s use
of force was excessive. The court went on to rule that it is clearly established that
the use of force against a restrained and unresisting suspect is unconstitutional.
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This is Carson’s appeal.
III. STANDARD OF REVIEW
We review de novo the district court’s denial of summary judgment based
on qualified immunity. Williams v. Aguirre,
965 F.3d 1147, 1156 (11th Cir.
2020). Summary judgment is warranted only “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). “In making this determination, we view the
evidence and all factual inferences therefrom in the light most favorable to the non-
moving party, and resolve all reasonable doubts about the facts in favor of the non-
movant.” Williams, 965 F.3d at 1156 (quotation marks omitted).
IV. DISCUSSION
Carson argues that the district court erred in denying him qualified immunity
at the summary judgment stage. “Qualified immunity offers complete protection
for government officials sued in their individual capacities as long as their conduct
violates no clearly established statutory or constitutional rights of which a
reasonable person would have known.” Lee v. Ferraro,
284 F.3d 1188, 1193–94
(11th Cir. 2002) (quotation marks omitted). “To receive qualified immunity, the
officer must first show that he acted within his discretionary authority.” Lewis v.
City of West Palm Beach,
561 F.3d 1288, 1291 (11th Cir. 2009). It is undisputed
here that Carson was acting within his discretionary authority, so the burden shifts
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to Koger to “show that qualified immunity should not apply.”
Id. To do so, Koger
must show both (1) that Carson violated a constitutional right; and (2) that the
relevant right was “clearly established” at the time of the alleged misconduct.
Jacoby v. Baldwin County,
835 F.3d 1338, 1344 (11th Cir. 2016). We first address
whether Carson committed a constitutional violation before turning to whether the
relevant right was clearly established.
A. Constitutional Violation
The Fourth Amendment protects against unreasonable seizures. U.S. Const.
Amend. IV. “The use of excessive force in executing an arrest is a species of
unreasonable seizure, so the Fourth Amendment prohibits it.” Hinson v. Bias,
927
F.3d 1103, 1117 (11th Cir. 2019). In determining whether Carson is entitled to
summary judgment on Koger’s claim that he used excessive force, the Fourth
Amendment’s “objective reasonableness” standard governs our inquiry.
Id.
(quotation mark omitted). Under that standard, “we must consider whether the
officer’s conduct is objectively reasonable in light of the facts confronting the
officer.”
Id. (quotation marks omitted). And we must conduct our analysis “from
the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.”
Id. (quotation marks omitted).
When evaluating a Fourth Amendment excessive force claim, we “carefully
balance the nature and quality of the intrusion on the individual’s Fourth
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Amendment interests against the countervailing governmental interests at stake.”
Id. (quotation marks omitted). We consider the following factors: “(1) the severity
of the crime; (2) whether the individual poses an immediate threat to the safety of
the officers or others; (3) whether the individual actively resists or tries to evade
arrest by flight; (4) the need for force to be applied; (5) the amount of force applied
in light of the nature of the need; and (6) the severity of the injury.”
Id. (citations
and quotation marks omitted).
Taking the facts in the light most favorable to Koger, a jury could find
Carson’s use of force violated the Fourth Amendment. According to Koger’s
version of the facts, he was resisting immediately following the stop but by the
time Carson arrived he was lying face down, prone, and double-handcuffed.
Carson and Bennett then lifted Koger (bringing him from handcuffed and prone to
handcuffed and standing), marched him to the back of the patrol vehicle, and
leaned him over the vehicle in order to conduct a search. At this point, Carson
punched Koger twice and delivered an elbow strike to his lower back, which
caused Koger’s knees to buckle. Due to fight momentum, Carson struck Koger in
the back with his elbow a second time. Carson then placed his arm between
Koger’s legs and thrusted upwards in an uppercut motion, striking Koger’s
testicles and lifting him off the ground and onto the trunk of the patrol vehicle.
During this time, Koger was screaming that he could not breathe. Upon the
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conclusion of the search, Koger slid off the trunk onto the ground. Koger
maintains that he was compliant and non-resisting during his interactions with
Carson at the rear of the patrol vehicle.
If Koger was indeed compliant and non-resisting, as we must accept here,
Carson’s use of force was objectively unreasonable. 2 That is because “[w]e have
consistently held that gratuitous use of force when a criminal suspect is not
resisting arrest constitutes excessive force.” Stryker v. City of Homewood,
978
F.3d 769, 775 (11th Cir. 2020) (quotation marks omitted) (reversing grant of
qualified immunity where officers beat, kicked, and choked suspect who was under
control and not resisting); see also Hadley v. Gutierrez,
526 F.3d 1324, 1330 (11th
Cir. 2008) (affirming denial of qualified immunity where officer punched
handcuffed, non-resisting suspect in the stomach); Lee,
284 F.3d at 1198 (finding
use of force was excessive where officer slammed plaintiff’s head onto the hood of
her car when she was handcuffed and not posing any threat).
2
We reject Carson’s view that the force he used here was de minimis. De minimis injury does
not necessarily mean the force used was de minimis. See Lee,
284 F.3d at 1200 (“that [the
plaintiff] did not suffer greater injury to her head as a result of it being slammed against the trunk
of a car does not alone render the force used de minimis”). But in any event, Koger was
diagnosed with a scrotal contusion as a result of Carson’s force and he testified that his testicle
has “swollen up to the size of [a] softball” about 20 times since the incident. Koger describes an
injury that is more serious than the injuries suffered by plaintiffs in cases where we have found
de minimis force. See, e.g., Nolin v. Isbell,
207 F.3d 1253, 1255, 1258 & n.4 (11th Cir. 2000)
(concluding force was de minimis where plaintiff suffered bruising that disappeared quickly and
sought no medical treatment); Gold v. City of Miami,
121 F.3d 1442, 1446–47 (11th Cir. 1997)
(per curiam) (same where plaintiff “suffered only skin abrasions for which he did not seek
medical treatment”).
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So the critical question is whether Koger was resisting. At least as to
whether Koger was resisting when Carson delivered the second elbow strike and
the uppercut strike to Koger’s groin, there is a genuine dispute of fact. To begin,
the dashcam videos do not resolve this question. In our view the videos do not
clearly depict whether Koger was resisting. And witness testimony regarding the
videos is not consistent. For instance, Deputy Floyd testified that the videos show
Koger resisting the search by “jerking around” while Patrick Looper (Koger’s
expert) testified that, based on his review of the video, Koger “doesn’t appear to be
resisting.”
Neither does eyewitness testimony answer the question. Four officers—
Carson, Bennett, Smith, and Floyd—testified that Koger was resisting at the rear of
the patrol vehicle.3 On the other hand, another officer, Cook, testified that in his
opinion Koger was not resisting. Carson says Cook’s testimony cannot create a
genuine dispute of fact, but his arguments in this regard fall short. Cook’s
testimony is not the kind of “scintilla of evidence” we have found insufficient to
preclude summary judgment. In Allen v. Board of Public Education for Bibb
County,
495 F.3d 1306 (11th Cir. 2007), for instance, we concluded that self-
3
Carson’s testimony is not completely consistent. He said: “The first elbow strike buckled
Koger’s knee, which indicated maybe he was done fighting. The second one was just from
momentum of being in a fight.” This suggests that, at least when Carson delivered the second
elbow strike, Koger was not resisting.
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serving declarations unsupported by other testimony were insufficient alone to
defeat summary judgment.
Id. at 1322–23. Here, in contrast, Cook’s statement is
consistent with Looper’s assessment of the video footage. And it is not self-
serving; indeed, quite the opposite. At the time of his deposition, Cook was still a
defendant in this lawsuit and Carson was his superior.
Although Cook was, to some extent, impeached on cross-examination, this
does not mean that Carson is entitled to judgment in his favor. During cross-
examination, Cook was shown prior interrogatory responses drafted with the help
of an attorney in which he stated Koger was resisting. Cook then modified his
answer to say that he “observed [Koger] offering a little resistance.” Although this
may raise a question about Cook’s credibility, we do not make credibility
determinations at the summary judgment stage. Strickland v. Norfolk S. Ry. Co.,
692 F.3d 1151, 1162 (11th Cir. 2012) (“Where a fact-finder is required to weigh a
deponent’s credibility, summary judgment is simply improper.”). Therefore, a
genuine dispute of fact remains as to whether Carson used excessive force against
Koger.
B. Clearly Established Law
As recounted just above, under Koger’s version of the facts, he was
handcuffed and not resisting at least when Carson delivered the second elbow
strike and used an uppercut strike to his groin to lift him onto the trunk of the
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patrol vehicle. Assuming this to be true, such conduct amounts to a clearly
established constitutional violation. At the time of this incident in 2017, there was
no doubt that, in this Circuit, striking a non-resisting suspect constitutes excessive
force. See Hadley,
526 F.3d at 1330 (force was excessive where officer punched
handcuffed, non-resisting suspect in the stomach); Lee,
284 F.3d at 1198 (use of
force was excessive where officer slammed plaintiff’s head onto the hood of her
car when she was handcuffed and not posing any threat).
V. CONCLUSION
For these reasons, Carson is not entitled to qualified immunity. The district
court’s denial of Carson’s motion for summary judgment is therefore
AFFIRMED.
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