Des Moines settles police excessive force case for $800,000

December 5, 2018 GMT

DES MOINES, Iowa (AP) — The city of Des Moines confirmed Wednesday it agreed to pay $800,000 to settle an excessive force lawsuit filed by a northeast Iowa man against two police officers and the city.

The money was approved Monday by the City Council to settle the lawsuit but the amount was undisclosed. The Associated Press confirmed it with City Manager Scott Sanders on Wednesday. It will be paid by city taxpayers out of the city’s general fund.

A federal jury last month found officer Michael Fong and Sgt. Greg Wessels used excessive force and committed battery when they attacked Dustin Burnikel in downtown Des Moines in 2013.

Burnikel, 37, of Lime Springs, filed a civil lawsuit in 2015. The jury awarded him $200,000 for damages including physical and mental pain and medical expenses after hearing evidence that he suffered back injuries, broken teeth and other medical problems. Jurors were to consider liability of the city for failure to properly train and supervise the officers when the city offered to settle the case.

The settlement covers damages, attorney fees and costs and avoids further potential damages and additional legal fees, Sanders said.

Burnikel 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.

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.

“Our client is pleased that the city has finally taken responsibility and that it is clear he did nothing wrong,” said Burnikel’s attorney Javad Khazaeli, a St. Louis civil rights lawyer who represented Burnikel along with Justin Swaim of West Des Moines.

Wessels has a lengthy disciplinary record dating as far back as 2002. It includes reprimands and suspensions for punching individuals while they were handcuffed, failing to investigate or file a report of a woman’s assault in 2013 and shooting the tire out of a minivan in an effort to stop a suspect from fleeing in 2014.

Court records show Fong also has been suspended for striking a handcuffed citizen.

Fong and Wessels continue to work for the department in the vice and narcotics control section, a police department spokesman said.