Dustin Burnikel v. Michael Fong

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 16-3930

___________________________

Dustin Burnikel

lllllllllllllllllllll 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

lllllllllllllllllllll Defendants - Appellants

City of Des Moines, Iowa

lllllllllllllllllllll Defendant

____________

Appeal from United States District Court

for the Southern District of Iowa - Des Moines

____________

Submitted: October 18, 2017

Filed: April 2, 2018

____________

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

1

The Honorable John A. Jarvey, Chief Judge, United States District Court for

the Southern District of Iowa.

2

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.

-2-

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.

-3-

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.

-4-

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 (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 (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 (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 (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

-5-

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 (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). 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.

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

3

To the extent the district court failed to conduct an individualized qualified

immunity analysis for each officer, we do so here. See Manning, 862 F.3d at 668

(holding that the district court erred by failing to conduct an individualized analysis

for each officer and conducting individual analyses on appeal); Roberts v. City of

Omaha, 723 F.3d 966, 974 (8th Cir. 2013) (same).

-6-

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, 800

F.3d at 983. Viewed in that light, the facts confronting Fong were as follows:

Burnikel stood with his hands facing out as he yelled something to the effect of

“What are you doing to her?” Burnikel “did not assume an aggressive stance and . . .

was not given the opportunity to retreat.” D. Ct. Order of Oct. 12, 2016, at 4.

Although Burnikel had committed no crime and had done nothing more than inquire

about Hunemiller’s well-being, Fong approached him and deployed pepper spray,

notwithstanding Fong’s failure to identify himself as a police officer or to issue any

commands. He instead began beating Burnikel, who was submissive and tried only

to protect his face with his hands. Despite his training to avoid striking a person’s

head, Fong punched Burnikel in the nose.

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

-7-

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, 136 S. Ct. 305, 308 (2015) (quoting Reichle v.

Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and alteration

omitted)). We may not “define clearly established law at a high level of generality,”

but rather must determine “whether the violative nature of particular conduct is

clearly established.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).

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, 515 U.S. at 313; see Franklin ex rel. Franklin v. Peterson, 878 F.3d 631, 638

(8th Cir. 2017) (“While we have jurisdiction to determine whether conduct the district

court deemed sufficiently supported for purposes of summary judgment constitutes

a violation of clearly established law, we lack jurisdiction to determine whether the

evidence could support a finding that particular conduct occurred at all.”); Thompson,

-8-

800 F.3d at 984 (“At bottom, this is an argument about the sufficiency of the

evidence, a question we lack jurisdiction to review, however inventively it is

structured as an abstract legal argument.”).

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’

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, 616 F.3d 855, 864 (8th Cir. 2010) (citing Bauer v. Norris, 713

F.2d 408, 412 (8th Cir. 1983); Feemster v. Dehntjer, 661 F.2d 87, 89 (8th Cir. 1981)),

and it was clearly established in 2013 that it was unlawful to strike a nonviolent

person who had committed no crime, who was not fleeing or resisting arrest, who

posed little to no threat to anyone’s safety, and whose only infraction was to call out

to a police officer, whom he mistakenly thought was a man attacking a woman. See

Brown, 574 F.3d at 499 (“[F]orce is least justified against nonviolent misdemeanants

who do not flee or actively resist arrest and pose little or no threat to the security of

the officers or the public.”) (citing Kukla v. Hulm, 310 F.3d 1046, 1050 (8th Cir.

2002); Henderson v. Munn, 439 F.3d 497, 503 (8th Cir. 2006)); see also Ellison, 796

4

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.

-9-

F.3d at 914 (“A plaintiff need not show that the ‘very action in question has

previously been held unlawful,’ but he must establish that the unlawfulness was

apparent in light of preexisting law.”) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987), and citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). It was also clearly

established in 2013 “that when a person is subdued and restrained with handcuffs, a

‘gratuitous and completely unnecessary act of violence’ is unreasonable and violates

the Fourth Amendment.” Blazek v. City of Iowa City, 761 F.3d 920, 925 (8th Cir.

2014) (quoting Henderson, 439 F.3d at 503). Accordingly, a reasonable officer

would have understood that purposefully dropping Burnikel face-first onto the

concrete after he had been subdued and handcuffed would violate clearly established

law.

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

Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1012 (8th Cir. 2003) (en

banc).

______________________________

5

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, 359 N.W.2d 466, 469 (Iowa 1984). Likewise, Burnikel’s motion for

summary judgment argued only the state-law false arrest claim, his opposition to the

officers’ motion responded only to their defense of discretionary-function immunity

under Iowa law, and the false arrest section of his appellate brief cites no law.

Accordingly, we do not address a federal qualified immunity defense to a § 1983 false

arrest claim that has never been advanced.

-10-