Jury finds excessive force in 2013 Des Moines police arrest

David Pitt | Associated Press

A jury in a federal civil case has found two Des Moines city police officers used excessive force and committed battery when they pepper-sprayed and beat a man in February 2013 on a street in the city's downtown.

Jurors returned the verdict Tuesday after a five-day trial. They awarded Dustin Burnikel $200,000 for damages, including physical and mental pain and medical expenses.

The city of Des Moines, accused of failure to properly train and supervise officer Michael Fong and Sgt. Greg Wessels, approached Burnikel's attorneys after the verdict and offered to settle its portion of the lawsuit for an amount not immediately disclosed.

City attorney John Haraldson said in a statement that the city respects the jury system but was disappointed with the verdict.

"The settlement will be discussed and placed upon an upcoming council agenda and will be public at that time," he said.

The jury found in favor of the officers on the allegations of false arrest and malicious prosecution but concluded Fong and Wessels behaved in a callously indifferent manner on the excessive force and battery allegations. That allowed Burnikel to recover punitive damages, which were included in the city settlement.

"Our client now will finally be able to start to rebuild his life from the actions of the Des Moines Police Department," said Burnikel's attorney Javad Khazaeli, a St. Louis civil rights attorney.

Burnikel, 37, of Lime Springs, said he was waiting at a taxi stand on Court Avenue in Des Moines on Feb. 16, 2013, after having some drinks with friends and family. He saw a man in a dark coat push a woman to the ground and, not aware that the man was a police officer, yelled, "What are you doing to her? Why are you hurting her?"

The man was Fong who Burnikel says immediately released the woman he was attempting to arrest and rushed toward Burnikel and pepper sprayed him in the face. Fong and Wessels then struck Burnikel in the face, stomach, sides, mid-section, and testicles until he fell to the ground.

After the officers handcuffed Burnikel, they lifted him from the ground and dropped him face-first onto the concrete, court records said. Several of Burnikel's teeth were cracked or broken. He said he was badly bruised and suffered prolonged back injuries.

Fong and Wessels said Burnikel was acting in a threatening manner and they needed to subdue him.

They arrested Burnikel and charged with interference with a police officer, public intoxication, and resisting arrest but a jury found him not guilty on all counts in May 2013.

Burnikel filed the lawsuit against the city, Fong and Greg Wessels in 2015 alleging excessive force and battery, false arrest and malicious prosecution. The officers asked Judge John Jarvey to dismiss the case, but he declined in an October 2016 ruling. The city and officers appealed to the 8th U.S. Circuit Court of Appeals which in August rejected their arguments that their actions were reasonable.

The judges concluded it's clear that "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."

Court records show Fong was suspended for five days in 2007 for striking a handcuffed citizen. Wessels has a lengthy disciplinary record including three findings of inappropriate force including a December 2013 four-day suspension for hitting a citizen in the face.

Police department spokesman Paul Parizek declined to comment and referred questions to the city attorney. Parizek said Fong and Wessels continue to work for the department in the vice and narcotics control section.

In 2013, Des Moines police determined Wessels violated policy and inappropriately used deadly force after he shot the rear tire of a vehicle in which a suspect was fleeing. Then, earlier this year, the sergeant came under fire from some in the public for a video showing him pepper spraying a teenage girl at a downtown Des Moines bus station hub.

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