Submitted: October 18, 2017
from United States District Court for the Southern District
of Iowa - Des Moines
WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.
WOLLMAN, Circuit Judge.
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 42 U.S.C.
§ 1983 and state tort claims under Iowa law. As relevant
here, the district court denied the officers' motion for
summary judgment based on their claim of qualified
immunity. Fong and Wessels now bring this
interlocutory appeal. We conclude, based on the facts assumed
by the district court, that the motion was properly denied.
We lack jurisdiction over Fong and Wessels's appeal of
the denial of summary judgment on the state law claims.
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.
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
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.
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?"
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
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, they lifted him from the ground and dropped him
face-first onto the concrete.
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.
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