Dustin Burnikel v. Michael Fong
Opinion
Dustin Burnikel sued Officers Michael Fong and Greg Wessels and the City of Des Moines, Iowa, alleging federal claims of excessive force and municipal liability under
I. Background
On February 15, 2013, Burnikel, a resident of a northeastern Iowa town, attended a wrestling tournament and stayed with his family at a Des Moines hotel. After having a beer at the hotel, Burnikel, his cousin Darrick Burnikel (Darrick), and his friend Justin Sovereign went to a bar in downtown Des Moines, where Burnikel had two or three more beers. When they left the bar in the early morning hours of February 16, they walked to the cab stand located on the corner of Third Street and Court Avenue.
Local cab companies hire off-duty Des Moines police officers to maintain order at the Third Street and Court Avenue cab stand. When working the cab stand, officers wear their uniforms and perform the same duties as on-duty police officers. The officers usually work in pairs, with one officer standing at the corner and another officer walking up and down the line. Des Moines police officers Fong and Wessels were working the cab stand in the early morning hours of February 16, 2013. Both officers wore their winter uniforms, which were dark blue winter coats with police patches located on the arms and police badges located on the chests.
According to Fong and Wessels, a group of four or five men and women approached the cab stand at approximately 2:20 a.m. that morning. One of the men refused to wait his turn for a cab and argued with the officers, who soon decided to arrest the man for public intoxication. Wessels testified that as he was escorting the arrestee to the police wagon, Breanna Hunemiller grabbed him from behind. Upon seeing Hunemiller intervene, Fong grabbed Hunemiller's coat collar, whereupon Hunemiller tripped over a curb, causing them both to tumble to the ground.
As Burnikel stood near the back of the line at the cab stand, he saw a man dressed in black throw a woman to the ground. Burnikel heard the woman scream and cry, and he thought the man was attacking her. Not knowing that the man was a police officer and not seeing the police insignias on his coat, Burnikel called out, "What are you doing to her? Why are you hurting her?" According to Sovereign, Burnikel's hands were at his sides and facing out when he called out to Fong, as if to indicate that he was asking a question. Darrick testified that Burnikel's "feet never moved" and that his arms were positioned to indicate that "he was in disbelief, like, What's happening right in front of me?"
Upon hearing Burnikel's questions, Fong released the woman and immediately deployed pepper spray onto Burnikel's face. The burning sensation caused Burnikel to bend over and lift his hands to his eyes. Sovereign and Darrick saw him step or stumble backwards. Blinded by the pepper spray, Burnikel remembers being punched in the stomach with a blow that brought him to his knees. He continued to be struck in the stomach, sides, mid-section, and testicles until he fell to the ground.
The beating continued as Burnikel tried to use his hands to protect his face. After one of the officers moved Burnikel's arm, Fong punched Burnikel in the face. All the while, Burnikel did not fight back. In response to commands to stop resisting, Burnikel yelled, "I didn't do anything," "I'm not resisting," and "Stop hitting me." Neither Fong nor Wessels identified himself as a police officer during the altercation. After the officers finally handcuffed Burnikel, *709 they lifted him from the ground and dropped him face-first onto the concrete.
Fong and Wessels dispute Burnikel's account of the facts and maintain that they used only the force necessary to accomplish Burnikel's arrest. According to the officers, Burnikel yelled at Fong and moved toward him in an aggressive manner, to which Fong responded by yelling, "[B]ack up or you're going to jail." Fong claims that when Burnikel did not retreat and instead assumed a fighting stance, Fong used pepper spray to incapacitate him. Because he believed that Burnikel was preparing to fight because his hands were clenched into fists, Wessels decided to release the arrestee in order to help Fong. The officers claim that Burnikel pulled away as they tried to take hold of him, so Fong delivered two knee strikes to Burnikel's mid-section and Wessels punched him twice in the groin. Burnikel finally fell to the ground, landing face-down with his hands beneath him. The officers testified that after Burnikel disobeyed commands to place his hands behind his back, Fong kneeled next to him and punched him in the nose, which finally enabled the officers to handcuff him.
The officers believed that Burnikel was intoxicated. According to Fong, Burnikel refused his offer of a preliminary breathalyzer test. Burnikel admits that he had had a few beers over the course of the evening, but denies both that he was intoxicated and that he was offered a breathalyzer test. Many of Burnikel's teeth were cracked or broken during the encounter with the officers. He was badly bruised and suffered injuries to his face, back, ribs, legs, and testicles. He was arrested and charged with three misdemeanors: interference with a police officer, public intoxication, and resisting arrest. Following a two-day trial, a jury acquitted Burnikel on all counts.
In denying the officers' motion for summary judgment, the district court concluded that Burnikel "ha[d] alleged a violation of his clearly established right to be free from excessive force." D. Ct. Order of Oct. 12, 2016, at 10. The court accepted as true Burnikel's version of the facts, but noted that "[f]rom the point Fong and Hunemiller fell to the ground, the parties dispute almost everything."
II. Discussion
We have jurisdiction over this interlocutory appeal under the collateral order doctrine.
Mitchell v. Forsyth
,
Qualified immunity shields government officials from liability in a § 1983 action unless their conduct violates a clearly established right of which a reasonable official would have known.
Harlow v. Fitzgerald
,
We analyze excessive force claims in the context of seizures under the Fourth Amendment, applying its reasonableness standard.
See
Graham v. Connor
,
Fong and Wessels argue that the district court failed to consider the circumstances surrounding the use of force from their perspectives. Specifically, Fong asserts that his use of pepper spray was reasonable because Burnikel quickly approached him and tried to interfere with Hunemiller's arrest by yelling and assuming a fighting stance. Fong also claims that the knee strikes to Burnikel's mid-section and the punch to Burnikel's nose constituted the use of reasonable force because Burnikel failed to comply with the officers' orders and physically resisted arrest. Similarly, Wessels argues that punching Burnikel in the groin was his "attempt[ ] to put the threatening individual into custody as promptly and reasonably as possible." Appellants' Br. 26. Fong and Wessels argue that their use of force was objectively reasonable as a matter of law and thus entitled them to qualified immunity.
Fong and Wessels have recounted disputed material facts in their favor, but we are not permitted to accept their version of events in ruling upon the legal issue they raise. As explained above, "we are constrained by the version of the facts that the district court assumed or likely assumed in reaching its decision."
Thompson
,
*711 Wessels may have perceived a tense situation when he looked over his shoulder and saw Fong and Burnikel, but by the time Wessels released the intoxicated individual he had been escorting and came to Fong's aid, Burnikel had been blinded by the pepper spray and was not fighting or resisting arrest. Wessels nonetheless joined in the beating, punching Burnikel twice in the testicles, despite his training to avoid striking a person's genitals.
Under the version of the facts that the district court accepted for purposes of summary judgment, Fong and Wessels delivered "repeated strikes, punches, and blows to Burnikel," as Burnikel pleaded with them to "stop hitting him because he wasn't resisting them or doing anything wrong." D. Ct. Order of Oct. 12, 2016, at 10. The district court also likely accepted Burnikel's assertion that the officers handcuffed him, lifted him off the ground, and dropped him face-first onto the concrete. Under this version of the facts, Burnikel has established that both Fong and Wessels violated his Fourth Amendment right to be free from excessive force.
Fong and Wessels argue that their use of force violated no clearly established Fourth Amendment right. "A clearly established right is one that is 'sufficiently clear that every reasonable official would have understood that what he is doing violates that right.' "
Mullenix v. Luna
, --- U.S. ----,
Fong contends that it was not clearly established that a "a blow to the Plaintiff's nose with his fist" would constitute excessive force in light of his claim that Burnikel "pos[ed] a threat to the safety of himself or others" and "appeared to resist arrest even after being taken to the ground." Appellants' Br. 25. Similarly, Wessels argues that it was not clearly established that a punch to the groin constituted "an excessive use of force against a resistant, non-compliant individual reasonably perceived to be a threat and not yet under control of the officers." Appellants' Br. 28 (emphasis omitted). The officers have defined the constitutional right in terms of disputed facts viewed in their favor-that Burnikel appeared threatening, that he failed to comply with orders, and that he resisted arrest. This they are not entitled to do. The officers have, in effect, asked us to examine a matter over which we lack jurisdiction-"
i.e.
, which facts a party may, or may not, be able to prove at trial."
Johnson
,
Assuming that Burnikel's version of the story is true-that he merely inquired about Hunemiller's well-being, that he did not threaten anyone, did not appear to threaten anyone, did not resist arrest, and did not fail to comply with the officers'
*712
commands-a reasonable officer standing in Fong's or Wessels's shoes would have understood that the amount of force they used was excessive.
4
Long before Burnikel's arrest, "this court (among others) had announced that the use of force against a suspect who was not threatening and not resisting may be unlawful,"
Shannon v. Koehler
,
We affirm the district court's denial of qualified immunity to Fong and Wessels. Because our resolution of the qualified immunity appeal does not necessarily resolve Burnikel's state law claims against the officers, we dismiss for lack jurisdiction the portion of the appeal concerning those state law claims.
5
See
*713
Lockridge v. Bd. of Trs. of Univ. of Ark.
,
The Honorable John A. Jarvey, Chief Judge, United States District Court for the Southern District of Iowa.
The district court also denied in part the City's motion for summary judgment. The City has not appealed, and we do not address the claims against it.
To the extent the district court failed to conduct an individualized qualified immunity analysis for each officer, we do so here.
See
Manning
,
The district court did not address whether Fong's initial use of pepper spray violated clearly established federal law, and Burnikel does not seem to argue on appeal that it did. Viewing the facts in the light most favorable to Burnikel, the situation confronting Fong was that of a man yelling at a police officer during a late-night arrest near a line of bar patrons, many of whom were intoxicated. Whether every reasonable officer would have understood that the initial discrete use of force-Fong's deployment of pepper spray-would violate Burnikel's Fourth Amendment right is a question that we do not address. Suffice it to say that the use of pepper spray and the effect it had on Burnikel are circumstances relevant to the reasonableness of the officers' subsequent use of force.
Fong and Wessels argue that they were entitled to qualified immunity on the § 1983 false arrest claim, but in our view, Burnikel has not alleged any such federal claim. His complaint alleges the elements of false arrest under Iowa law: that Burnikel "was detained or restrained against his will" by Fong and Wessels and that the detention or restraint was unlawful. Compl. ¶¶ 84, 87, 105, 107;
see
Kraft v. City of Bettendorf
,
Reference
- Full Case Name
- Dustin BURNIKEL, Plaintiff-Appellee v. Michael FONG, Individually and in His Official Capacity as a Law Enforcement Officer With the Des Moines Police Department; Greg Wessels, Individually and in His Official Capacity as a Law Enforcement Officer With the Des Moines Police Department, Defendants-Appellants City of Des Moines, Iowa, Defendant.
- Cited By
- 66 cases
- Status
- Published