                  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-
