Burnikel v. Fong

• Decision Date: 02 April 2018
• Docket Number: No. 16-3930,16-3930
• Citation: 886 F.3d 706
• Parties: 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.
• Court: U.S. Court of Appeals — Eighth Circuit

886 F.3d 706

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.

No. 16-3930

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2017

Filed: April 2, 2018

Javad Mohammed Khazaeli, Attorney, James R. Wyrsch, Khazaeli & Wyrsch, Saint Louis, MO, Justin K. Swaim, Swaim Law Firm, PLLC, West Des Moines, IA, for Plaintiff–Appellee.

John O. Haraldson, City Attorney's office Legal Department, Des Moines, IA, for Defendants–Appellants.

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 court¹ 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: 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." Id. at 3. The court also denied the officers’ motion for summary judgment on Burnikel’s state law claims of assault and battery, false arrest, and malicious prosecution.

II. Discussion

We have jurisdiction over this interlocutory appeal under the collateral order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Our jurisdiction is limited, however, to "abstract issues of law" and does not extend to the "determination that the evidence is sufficient to permit a particular finding of fact after trial." Johnson v. Jones, 515 U.S. 304, 314, 317, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Accordingly, we accept as true the facts that the district court found were adequately supported, as well as the facts that the district court likely assumed, to the extent they are not "blatantly contradicted by the record." Thompson v. Murray, 800 F.3d 979, 983 (8th Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ). We review de novo the issues of law. See Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009).

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, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In cases involving more than one government official, qualified immunity requires that each official’s conduct be considered individually, "because a person ‘may be held personally liable for a constitutional violation only if his own conduct violated a clearly established constitutional right.’ " Manning v. Cotton, 862 F.3d 663, 668 (8th Cir. 2017) (quoting Baribeau v. City of Minneapolis, 596 F.3d 465, 482 (8th Cir. 2010) ).³

We analyze excessive force claims in the context of seizures under the Fourth Amendment, applying its reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "The Fourth Amendment requires us to ask, based on the perspective of a reasonable officer on the scene, ‘whether the officers’ actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.’ " Ellison v. Lesher, 796 F.3d 910, 916 (8th Cir. 2015) (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865 ). Circumstances relevant to the reasonableness of the officers’ conduct include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. 1865.

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...