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Burnikel v. Fong

United States Court of Appeals, Eighth Circuit

April 2, 2018

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 - AppellantsCity of Des Moines, Iowa Defendant

          Submitted: October 18, 2017

          Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.

          WOLLMAN, Circuit Judge.

          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 42 U.S.C. § 1983 and state tort claims under Iowa law. As relevant here, the district court[1] denied the officers' motion for summary judgment based on their claim of qualified immunity.[2] 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.

         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, 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: ...


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