Kong v. Burnsville, City of

Background

A customer called 9-1-1 after seeing Map Kong sitting in a car at a Burnsville McDonald’s, moving erratically and waving a knife. Officers John Mott and Taylor Jacobs arrived, followed by Lynrae Tonne and Sergeant Maksim Yakovlev. Kong remained in his car, and the officers repeatedly ordered him to drop the knife. They discussed waiting, blocking the car, breaking a window, and using a Taser. After Yakovlev arrived, the officers broke two windows and twice used a Taser on Kong.

Kong then left the car holding the knife and ran toward Frontage Road. Officers Mott, Jacobs, and Yakovlev fired at least 23 bullets over about three seconds; 15 bullets struck Kong, killing him. The opinion states that the video, viewed in the light most favorable to the plaintiff, could show Kong running away from the officers and nearby pedestrians rather than toward a particular person or vehicle. One bullet struck a civilian vehicle.

The trustee asserted three claims at issue in the motion: a civil-rights claim under 42 U.S.C. § 1983 alleging excessive force under the Fourth Amendment; a § 1983 claim alleging deliberate indifference to Kong’s medical needs under the Fourteenth Amendment; and a Minnesota negligence claim alleging that the officers failed to follow Burnsville’s crisis-intervention policy. The plaintiff had agreed to dismiss failure-to-train and direct municipal-negligence claims against the City of Burnsville, but still sought to hold the City vicariously liable on the remaining negligence claim.

Summary-judgment standard

Summary judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. The court was required to view disputed evidence and reasonable inferences in the plaintiff’s favor, unless video evidence blatantly contradicted the plaintiff’s account. The court emphasized that inconclusive video evidence must still be interpreted for the plaintiff at this stage.

Fourth Amendment excessive-force claim

The court denied the defendants’ motion for summary judgment on the excessive-force claim. It identified two material factual disputes. First, a jury could disagree about whether Kong’s knife movements amounted to felony terroristic threats or first-degree felony assault against an officer. Second, a jury could disagree about whether Kong posed a significant and immediate threat of serious injury or death to officers or the public when he ran away from the car.

The court concluded that the video did not conclusively establish that Kong lunged at Officer Jacobs with an intent to harm him. It also found that a reasonable juror could view Kong’s conduct as confused and frightened rather than violent and confrontational, and could find that he was moving away from the officers and pedestrians. The court compared the facts to Eighth Circuit precedent involving an emotionally disturbed, knife-wielding person who was running away from officers and held that precedent gave the officers fair warning that deadly force could be unconstitutional in those circumstances.

Because disputed facts prevented the court from deciding that the shooting was objectively reasonable as a matter of law, and because the court declined to grant qualified immunity at this stage, it held that a jury should decide the Fourth Amendment claim. The court expressly denied summary judgment on that claim.

Fourteenth Amendment medical-care claim

The court granted the defendants qualified immunity on the Fourteenth Amendment deliberate-indifference claim. It therefore did not decide the underlying question whether the officers violated Kong’s constitutional right to medical care.

The plaintiff argued that the officers took Kong into custody when they blocked his car and then ignored his need for medical attention by breaking the window and using a Taser instead of waiting for medics. The defendants argued that Kong was not in custody until his death and that no clearly established law required them to provide medical care in these circumstances.

The court explained that Fourteenth Amendment “custody” requires more than a person being unable to leave during an ordinary police seizure. It requires restraint that leaves the person unable to care for himself. The court found no precedent clearly establishing that officers had a medical-care duty toward a person who remained in a car, had not submitted to physical authority, and was never physically placed under arrest, in a squad car, or in jail. The court therefore granted qualified immunity on this claim and granted the defendants’ motion for summary judgment as to the claim.

Minnesota negligence claim

The court denied summary judgment on the negligence claim. The parties agreed that the crisis-intervention policy involved discretionary conduct, so the relevant Minnesota immunity question was whether the officers knowingly or willfully acted contrary to the policy. The court found factual disputes about whether the policy applied, whether the officers violated it, and whether they had reason to believe their conduct was prohibited.

The policy called for de-escalation measures such as requesting backup and specialized resources, securing and clearing the area, passively monitoring the situation when appropriate, and using alternatives to force when possible. A jury could find that the officers knowingly departed from those measures by breaking Kong’s windows and using a Taser while he was described as contained and while additional assistance from neighboring departments might have been available. The court also considered the conflicting expert opinions about whether the officers complied with the policy.

Because the individual officers were not entitled to official immunity on the negligence claim, the City of Burnsville was not entitled to vicarious official immunity. The court therefore denied the defendants’ motion for summary judgment on the negligence claim.

Disposition

The court ordered that the defendants’ motion for summary judgment was granted in part and denied in part: it was granted as to the Fourteenth Amendment medical-indifference claim and denied as to the Fourth Amendment excessive-force claim and the state negligence claim. The court set a jury trial for April 15, 2019. Judge Nelson entered the order.