[Ed. Note. This post contains a video which some viewers may find disturbing.]
A federal jury ruled against two Des Moines police officers and found they used excessive force. Dustin Burnikel claims he was beaten by the two cops on a downtown street.
According to his complaint, Burnikel claims he was beaten, arrested, charged and prosecuted by Officer Michael Fong and Sgt. Greg Wessels after asking the two officers why they were physically abusing a woman. He says,
“without any provocation, the Defendant police officers… stopped their abuse of the woman and directed all of their attention to [Burnikel]. Among the multiple acts committed by one or both Defendant officers… was the delivery of a blow to the testicles of Plaintiff. Plaintiff suffered multiple injuries at the hands of the Defendant officers. 2. Having assaulted and battered Plaintiff, the two Defendant officers, Officers Fong and Wessels, arrested him, jailed him and initiated and supported the prosecution of Plaintiff. Plaintiff defended the charges that resulted and was acquitted.”
The incident began in February of 2013 when Burnikel was attending a high school wrestling tournament. After the tournament he went out with his cousin and a friend. While waiting for a cab, Burnikel says he saw the two officers abusing a woman.
When Burnikel asked what the officers why they were abusing the woman, they turned on him. He says they pepper sprayed him and then beat him. The beating included one officer holding him by the arms while the other punched him. He was struck in the testicles and punched in the face.
According to his lawsuit, Burnikel “was struck in his testicles, his mouth, his head and face and suffered trauma to his hips, thighs, ribs and back. As a result, he suffered eight chipped teeth and one broken tooth, black eyes, and injuries to his testicles, face, mouth, eyes, hips, thighs, ribs and back.”
If that wasn’t bad enough, Officers Fong and Wessels then arrested him for obstruction, public intoxication and resisting arrest.
Burnikel wouldn’t accept a plea deal and instead went to trial. He was acquitted of all charges.
Unfortunately, Burnikel says the beating left him with permanent injuries and unable to go back full time to his tree service business. The arrest also resulted in his coaching credentials being suspended.
After being acquitted by a criminal jury, Burnikel filed a civil rights suit against the officers.
The city of Des Moines and the two officers fought the lawsuit at every step. As discovery progressed, it was learned that Sgt. Wessels had been suspended twice, once in 2005 and again in 2009. Suspiciously, the police department apparently couldn’t locate records concerning those suspensions
Earlier this year, a video went viral of Officer Wessel pepper spraying a teenage girl. [see below]
Discovery also revealed that Officer Michael Fong was suspended in 2007 and again in 2008. The 2007 suspension was allegedly for physically abusing a prisoner. Once again, the city claimed it didn’t have records of the incident.
After a five day trial last month, a Des Moines jury found in favor of Dustin Burnikel. He was awarded $200,000. Although we are disappointed in the size of the award, we appreciate that the jury took the time to listen to the evidence and hold the officers accountable for their illegal behavior.
The city has not yet appealed, although they may. According to a media report, after the verdict the city’s attorney offered to settle. Defendants in civil rights trial will often attempt to settle to avoid the cost of an appeal and the possibility they lose on appeal.
The officers already tried to appeal an earlier ruling before the trial began. A federal appeals court denied their appeal and said, “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.”
Incredibly, despite lengthy disciplinary records and a loss in federal court, both officers remain employed by the Des Moines Police Department. Hopefully the city will rethink their continued employment.
Lessons Learned – Police Brutality Cases Can Be Tough to Prove
If a police shooting takes place in an urban area, lawyers are lined up to take the case. Juries in more rural areas, however, tend to be much more supportive of the police. They are also more conservative on the amount of money they award when finding cops guilty of abuse.
Although this case was tried in Des Moines, jurors were pulled from throughout southern Iowa. That makes cases like Dustin Burnikel’s case especially difficult. But police brutality is never okay no matter where it occurs or who is the victim. These are cases that need to brought and in this case, even conservative jurors had no tolerance for excessive force.
Beating a handcuffed prisoner is never acceptable but arresting and beating a person simply because he spoke up on behalf of a stranger runs counter to any rational concept of justice. Remember, Burnikel was never convicted of any criminal wrongdoing.
He won his case twice. First before a criminal jury who found he did nothing illegal and then by a second jury that found the officers were at fault.
If you or a loved one has been seriously injured by police officers or in a prison, we can help. We file federal civil rights lawsuits against police officers and law enforcement agencies to expose misconduct, prisoner abuse, and other atrocities. You may also be entitled to financial compensation. CALL US 866.836.4684 or Connect Online to learn your rights. You can also visit our police misconduct information page to learn more.
Please note our practice is limited to death cases and catastrophic injuries. We and our national partners handle cases across the United States.
Video of Officer Wessels pepper spraying a teenage girl courtesy of Des Moines Register