[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-12078

Non-Argument Calendar

________________________

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: 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 1 of 13
2

This case arises out of the arrest of Phillip Wayne Koger following a highspeed 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 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 2 of 13
3

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 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 3 of 13
4

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 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 4 of 13
5

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. 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 5 of 13
6

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. 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 6 of 13
7

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 nonmoving party, and resolve all reasonable doubts about the facts in favor of the nonmovant.” 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 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 7 of 13
8

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 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 8 of 13
9

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 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 9 of 13
10

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”). 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 10 of 13
11

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 self3 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.

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 11 of 13
12

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 selfserving; 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 crossexamination, 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 

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 12 of 13
13

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.

USCA11 Case: 20-12078 Date Filed: 03/30/2021 Page: 13 of 13