Dustin Burnikel v. Michael Fong, 886 F.3d 706

In the early morning of Feb. 16, 2013, off-duty uniformed Des Moines officers Michael Fong and Greg Wessels, working at a cab stand, encountered Dustin Burnikel after he called out to what he believed was a man attacking a woman.
Burnikel (unarmed, hands reportedly at his sides, not aggressive) was sprayed with pepper spray by Fong, then punched, kneed, and struck repeatedly by Fong and Wessels; he was handcuffed and allegedly dropped face-first on concrete. He sustained serious injuries and was later acquitted at trial of misdemeanor charges arising from the incident.
The district court, accepting Burnikel’s version of events for summary judgment purposes, denied the officers’ motion for qualified immunity on his § 1983 excessive-force claim and also denied summary judgment on related Iowa state-law tort claims.
The officers appealed interlocutorily the denial of qualified immunity; the City did not appeal. The Eighth Circuit reviews the denial under the collateral order doctrine and accepts the district court’s assumed facts that are not blatantly contradicted by the record.
On those assumed facts, the court concluded the officers used repeated, gratuitous force against a nonthreatening, nonresisting individual and therefore violated the Fourth Amendment; it affirmed denial of qualified immunity but dismissed the appeal as to the state-law claims for lack of jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether officers entitled to qualified immunity on § 1983 excessive-force claim	Burnikel: assumed facts show he was nonthreatening and nonresisting; force was excessive	Fong/Wessels: their force was reasonable given perceived threat/resistance	Denied qualified immunity; factual view assumed by district court shows Fourth Amendment violation
Whether the right violated was clearly established	Burnikel: precedent made clear force against nonthreatening, nonresisting persons is unlawful	Officers: reasonable officers could believe punches/kicks were lawful given perceived resistance	Right was clearly established in 2013; qualified immunity unavailable
Whether qualified-immunity analysis must be individualized	Burnikel: liability can be assessed to each officer based on own conduct	Officers: general analysis suffices	Court conducted/endorsed individualized analysis for each officer
Jurisdiction over appeal of state-law claims	Burnikel: state claims remain; appeal improper	Officers: appealed denial of summary judgment on state claims	Eighth Circuit dismissed appeal as to state-law claims for lack of jurisdiction

Mitchell v. Forsyth, 472 U.S. 511 (establishes collateral-order interlocutory appeal for qualified immunity)
Johnson v. Jones, 515 U.S. 304 (limits appellate review to legal issues; forbids review of disputed facts)
Harlow v. Fitzgerald, 457 U.S. 800 (qualified immunity standard)
Graham v. Connor, 490 U.S. 386 (Fourth Amendment excessive-force objective-reasonableness test)
Shannon v. Koehler, 616 F.3d 855 (force against nonthreatening, nonresisting suspects may be unlawful)
Brown v. City of Golden Valley, 574 F.3d 491 (force least justified against nonviolent misdemeanants)
Blazek v. City of Iowa City, 761 F.3d 920 (gratuitous force against subdued, handcuffed person violates Fourth Amendment)
Ellison v. Lesher, 796 F.3d 910 (reasonableness analysis from officer’s perspective; precedent for clearly established inquiry)