Petition for Writ of Certiorari — Sok Kong, Trustee for Next of Kin of Map Kong, Decedent, Petitioner v. City of Burnsville, Minnesota, et al.

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 19-1101

Sok Kong, Trustee for Next-of-Kin of Map Kong,

Decedent

Appellee

v.

City of Burnsville, et al.

Appellants

__________________________________________

Appeal from U.S. District Court

for the District of Minnesota

(0:16-cv-03634-SRN)

__________________________________________

ORDER

The petition for rehearing en banc is denied. The

petition for panel rehearing is also denied.

Chief Judge Smith and Judges Shepherd, Kelly,

Erickson, and Grasz would grant the petition for rehearing en banc.

GRASZ, Circuit Judge, with whom ERICKSON,

Circuit Judge, joins, dissenting from the denial of rehearing en banc.

I respectfully dissent from the court’s refusal to rehear this case en banc.In my view, this case deserves

reconsideration for three reasons.

First and foremost, we must ensure the consistent

application of settled precedent, particularly with respect to how we review denials of qualified immunity

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at the summary judgment stage. In such circumstances, we must accept the “‘district court’s findings

of fact to the extent they are not blatantly contradicted by the record,’ and if the district court fails to

make a finding necessary for our legal review, ‘we determine what facts the district court, in nonmoving

party, likely assumed.’” Walton v. Dawson, 752 F.3d

1109, 1116 (8th Cir. 2014) (first quoting Scott v. Harris, 550 U.S. 372, 380 (2007); and then quoting Johnson v. Jones, 515 U.S. 304, 320 (1995)).

I do not believe this standard was properly applied

here. The panel distinguished this case from Ludwig

v. Anderson, 54 F.3d 465 (8th Cir. 1995) by claiming

Mr. Kong “posed a threat to citizens.” Kong v. City of

Burnsville, No. 19-1101, slip op. at 9 (8th Cir. 2020).

From where was this fact derived? Not from the district court, which found “a genuine dispute of material

fact . . . as to whether Mr. Kong posed a significant

and immediate threat of serious injury or death to the

surrounding public.” Kong v. City of Burnsville, No.

16-cv-03634, 2018 WL 6591229, at *14 (D. Minn. Dec.

14, 2018) (cleaned up). Did the record blatantly contradict the district court’s finding? The opinion does

not say, though the evidence of Mr. Kong’s frightened

flight “away from pedestrians and the officers” cuts

against such a conclusion. Id. And as Judge Kelly

pointed out in her dissent, a jury could presumably reject as unreasonable the officers’ belief that Mr. Kong

posed such a threat. Kong, slip op. at 19 (Kelly, J., dissenting); see also Rahn v. Hawkins, 464 F.3d 813,

817–18 (8th Cir. 2006) (explaining the jury’s duty to

determine an officer’s reasonableness in a use-ofdeadly-force case), overruled on other grounds by Rivera v. Illinois, 556 U.S. 148 (2009); Wallace v. City of

Alexander, 843 F.3d 763, 769 (8th Cir. 2016) (“Given

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the record before the district court, a fact finder could

reasonably conclude that Wallace no longer posed a

significant threat. . . .”) (emphasis added). The court

should reexamine this case to prevent the steady erosion of our summary judgment standard.

Second, we ought to rehear this case to further consider what constitutes an “immediate threat.” Has the

panel opinion broadened “immediate threat” to include all situations in which someone flees with a

knife when occupied vehicles are in the general vicinity? Answering this question seems important, given

the similar facts in Ludwig, in which we denied qualified immunity to officers who shot a man as he fled

with a knife. 54 F.3d at 473–74. It is hard to justify

expanding our definition of “immediate threat” in a

situation where our analysis directly turns on how we

have resolved prior, similar cases (e.g., when determining whether a right has been “clearly established”).

Finally, the en banc court should address the first

prong of the qualified immunity analysis. That is, we

should determine whether the officers violated the

Fourth Amendment when they shot the fleeing Mr.

Kong fifteen times in the back and side when no pedestrians were nearby. The panel did not address the

constitutional issue, stating only that, “[e]ven if the

facts showed that the officers had violated Kong’s

Fourth Amendment right, the law . . . did not clearly

establish the right.” Kong, slip op. at 7. I do not question the panel’s authority to skip this analytical step.

Pearson v. Callahan, 555 U.S. 223, 236 (2009). But I

worry about the impact bypassing this inquiry has on

the public’s perception of the justice system’s efficacy

and law enforcement’s accountability, both of which

are critical for a society governed by the rule of law.

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In my view, we should do what we permissibly can to

strengthen confidence in the rule of law and the judicial system.

July 30, 2020

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

_________________________________________

/s/ Michael E. Gans

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

__________________________________________

No. 19-1101

__________________________________________

Sok Kong, Trustee for Next-of-Kin of Map Kong,

Decedent

Plaintiff - Appellee

v.

City of Burnsville; Maksim Yakovlev, in his individual and official capacity; John Mott, in his individual

and official capacity; Taylor Jacobs, in his individual

and official capacity

Defendants – Appellants

________________

Appeal from the United States District Court

for the District of Minnesota

________________

Submitted: February 11, 2020

Filed: May 29, 2020

________________

Before

LOKEN,

Circuit Judges.

BENTON,

and

KELLY,

________________

BENTON, Circuit Judge.

Map Kong was fatally shot by police in Burnsville,

Minnesota. His next-of-kin’s Trustee, Sok Kong, sued

the City of Burnsville and the officers who shot him—

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Maksim Yakovlev, John Mott, and Taylor Jacobs—under 42 U.S.C. § 1983 and state law. The district court

denied the defendants’ motion for summary judgment

invoking qualified immunity and official immunity.

They appeal. Having jurisdiction under 28 U.S.C. §

1291, this court reverses and remands.

I.

This court states “the facts that the district court

specifically found were adequately supported, along

with those facts that the district court likely assumed.” Brown v. Fortner, 518 F.3d 552, 557-58 (8th

Cir. 2008). “When there are questions of fact the district court did not resolve, we determine the facts that

it likely assumed by viewing the record favorably to

the plaintiff as in any other summary judgment motion.” Id. at 558. See also Tolan v. Cotton, 572 U.S.

650, 657 (2014); Walton v. Dawson, 752 F.3d 1109,

1116 (8th Cir. 2014). However, this court does not

adopt the plaintiff’s version if it is “blatantly contradicted by the record.” See Scott v. Harris, 550 U.S. 372,

380 (2007). Almost all the facts here come from the

body cameras of four officers. Kong v. City of Burnsville, 2018 WL 6591229, at *1 (D. Minn. Dec. 14,

2018).

At 6:16 am on March 17, 2016, dispatch alerted officers Taylor Jacobs and John Mott about “suspicious

activity” in a McDonald’s parking lot. Id. at *2. The

dispatcher said a man had been parked there for over

half an hour, “jumping up and down inside his car,”

“waving a knife back and forth.” Id. The dispatcher

added it was unknown if he was alone in the car. Id.

The sun had not risen when officers Jacobs and

Mott arrived around 6:22 am at the McDonald’s. Id. at

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*3. It faced the frontage road and the four-lane highway; weekday traffic moved steadily, interrupted by

stop signs on the frontage road and stoplights on the

highway. Id.

Kong sat in the driver’s seat, windows rolled up,

rocking back and forth, slashing a large knife through

the air in front of him. Id. The officers pointed their

firearms and flashlights at him, repeatedly shouting

“drop the knife” and “let me see your hands.” See id.

at *4. Officer Jacobs told Kong he was under arrest.

Id. Kong did not comply or cease his “abnormal” motions. Id. at *3–4. Both officers later stated that, at the

scene, they thought Kong was high on methamphetamines. Id. at *3.

Officer Lynrae Tonne arrived, parking in the space

facing Kong’s car to block him in from the front. See

id. at *4. Kong continued to “occasionally burst into

frantic fits of gyrations and knife waving.” Id. Awaiting backup, the officers discussed what to do next. Id.

Officer Jacobs called for a medic to be staged nearby.

Id. He also asked if anyone was “laying down or hurt

or injured in the back” of Kong’s car. See id. The officers could not see through the fogged back windows.

See id. at *5. Officer Jacobs said, “I’m just afraid he’s

got a gun in the car.” See id. at *4.

McDonald’s customers continued to drive through,

immediately behind Kong’s car. The officers’ body

cameras recorded 13 vehicles moving through the

parking lot during the encounter with Kong. Id. at *3.

Officer Jacobs moved his vehicle behind Kong’s car to

block him in (also slowing the drive-through traffic).

See id. at *4. Officer Mott radioed that any additional

units should completely block off traffic entering the

parking lot. Id. at *5.

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Sergeant Maksim Yakovlev arrived, parking his

vehicle at the frontage entrance, lights flashing, but

not completely blocking it. Id. Officer Jacobs told him

Kong was “contained,” but the officers should consider

breaking a window and tasing him in case “he hops

out of that car.” Id. Sergeant Yakovlev suggested they

“figure out if he’s by himself there first.” Id. Officer

Jacobs then broke Kong’s back passenger window, instructing the others, “Look for any guns.” See id.

Officer Jacobs next broke Kong’s front passenger

window. Id. at *6. The officers repeatedly yelled,

“Drop the knife.” Id. Kong did not respond. Officer Jacobs yelled, “Taser, taser,” firing his taser at Kong. Id.

Kong squealed—high pitched, distressed. Id. He did

not drop his knife or stop bouncing up and down in his

seat. Id. Kong then swung his knife closer to the broken passenger-side window where officer Jacobs

stood. Id. Jacobs tased him again. Id. Kong fell back

in his seat. Id.

Right after the second tasing, Kong stumbled out

the driver-side door, falling to the pavement. Id. He

quickly stood up, knife in hand, and began running

across the parking lot toward the frontage road and

highway, away from the officers and McDonald’s. Id.

Within seconds, officers Mott, Jacobs, and Yakovlev

shot him from the back and side, firing at least 23 bullets. Id. Fifteen bullets hit Kong, killing him instantly

around 6:29 am. Id.

As the officers fired their guns, a customer’s vehicle exited the parking lot about 30 feet away. Id. at *7.

Kong ran in the general direction of the vehicle, although not at it in particular. Id. Kong ran toward the

frontage road and highway. Id. During the shooting, a

few cars passed by along the frontage road, 100 feet

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away. See id. Steady traffic continued on the highway

beyond. Id.

The Trustee sued the City of Burnsville and officers Yakovlev, Mott, and Jacobs. The Trustee asserts

claims under (1) 42 U.S.C. § 1983 for excessive force

and (2) Minnesota law for negligent failure to follow

Burnsville police department policies. The district

court denied the defendants’ motion for summary

judgment. They appeal.

II.

The officers assert qualified immunity against the

Section 1983 claim. They are entitled to qualified immunity unless (1) the facts show a violation of a constitutional right, and (2) the right was clearly established at the time of the misconduct. See Pearson v.

Callahan, 555 U.S. 223, 232 (2009). This court reviews

de novo the denial of qualified immunity. Raines v.

Counseling Assocs., Inc., 883 F.3d 1071, 1074 (8th Cir.

2018).

A.

The Trustee argues that this court lacks jurisdiction over the qualified immunity issue. A denial of

summary judgment on qualified immunity is appealable “to the extent that it turns on an issue of law.”

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). See also

Felder v. King, 599 F.3d 846, 848 (8th Cir. 2010). Although this court cannot find facts, it may determine

whether the undisputed facts support the district

court’s legal conclusions. Brown, 518 F.3d at 557;

Raines, 883 F.3d at 1074. This court views disputed

facts most favorably to the plaintiff, including all reasonable inferences. Wallace v. City of Alexander, 843

F.3d 763, 767-68 (8th Cir. 2016).

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The Trustee contends that the qualified immunity

issue requires this court to resolve disputed facts.

Courts of appeals may review the legal issues whether

conduct violated the Fourth Amendment or clearly established law. Plumhoff v. Rickard, 572 U.S. 765, 773

(2014). While this court cannot review whether a factual dispute is genuine, it may review the purely legal

question whether a factual dispute is material.

Thompson v. Murray, 800 F.3d 979, 983 (8th Cir.

2015). A nonmaterial difference in facts does not prevent appellate review. See Malone v. Hinman, 847

F.3d 949, 953-54 (8th Cir. 2017). Here, this court can

decide the legal issues without resolving disputed

facts, using the facts the district court specifically

found adequately supported, and those it likely assumed by viewing the record favorably to the plaintiff,

unless blatantly contradicted by the record. See

Brown, 518 F.3d at 557-58; Scott, 550 U.S. at 380. This

court has jurisdiction to review the qualified immunity issue.

B.

The Trustee argues that the defendants violated

Kong’s Fourth Amendment right to be free from unreasonable seizure when they shot him. See Tennessee

v. Garner, 471 U.S. 1, 7 (1985) (holding “apprehension

by the use of deadly force is a seizure subject to the

reasonableness requirement of the Fourth Amendment”). “[T]he question whether an officer has used

excessive force ‘requires careful attention to the facts

and circumstances of each particular case, including

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.’” Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018), quoting Graham

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v. Connor, 490 U.S. 386, 396 (1989). Reasonableness

“must be judged from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision

of hindsight.” Id. “[T]he calculus of reasonableness

must embody allowance for the fact that police officers

are often forced to make split-second judgments—in

circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary

in a particular situation.” Id. Qualified immunity

“protects all but the plainly incompetent or those who

knowingly violate the law.” Id.

“[W]here the officer has probable cause to believe

that the suspect poses a threat of serious physical

harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using

deadly force.” Id., quoting Garner, 471 U.S. at 11. A

fleeing suspect must thus pose “an immediate and significant threat of serious injury or death to the officer

or to bystanders.” Wallace, 843 F.3d at 769.

Even if the facts showed that the officers had violated Kong’s Fourth Amendment right, the law at the

time of the shooting—March 17, 2016—did not clearly

establish the right. For a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.”

Kisela, 138 S. Ct. at 1152; Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011). The law must provide “fair warning” to officials that conduct is unconstitutional. Tolan, 472 U.S. at 656. “Specificity is especially important in the Fourth Amendment context, where the

[Supreme] Court has recognized that it is sometimes

difficult for an officer to determine how the relevant

legal doctrine, here excessive force, will apply to the

factual situation the officer confronts.” Kisela, 138 S.

Ct. at 1152 (alteration added), quoting Mullenix v.

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Luna, 136 S. Ct. 305, 308 (2015). “Use of excessive

force is an area of the law in which the result depends

very much on the facts of each case, and thus police

officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at

issue.” Id. at 1153. “An officer cannot be said to have

violated a clearly established right unless the right’s

contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Id., quoting Plumhoff,

572 U.S. at 778-79.

Two years after Kong’s 2016 shooting, the Supreme Court held that its case law did not clearly establish that officers acted unreasonably by shooting a

woman who stood calmly with a kitchen knife by her

side six feet from a bystander. See Kisela, 138 S. Ct.

at 1152. Although the Burnsville defendants could not

rely on Kisela for guidance, the Court’s analysis of its

own pre-2016 precedent is instructive. Like Kong, the

woman shot in Kisela was not suspected of any felony,

and police responded to a report she was “acting erratically” with a knife. See id. at 1151, 1153. During

the encounter, she did not raise the knife toward the

police or others. See id. Like Kong, she did not

acknowledge the officers’ presence or obey their commands to drop the knife. See id. Holding that Kisela

was “far from an obvious case in which any competent

officer would have known that shooting” the woman

would violate her rights, the Court relied only on cases

decided before March 2016, when Kong was shot. See

id. at 1152-53.

The Court also held that case law of the relevant

circuit did not clearly establish the right. See id. at

1153-54 (analyzing the Ninth Circuit opinion below).

Denying qualified immunity, the Ninth Circuit had

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relied on a case where a sniper positioned safely on a

hilltop shot a man in the back as he retreated into a

cabin. Id. at 1154, analyzing Harris v. Roderick, 126

F.3d 1189, 1202-03 (9th Cir. 1997) (holding sniper violated clearly established law by shooting unarmed

man who made no aggressive move at the time of the

shooting). The Court held that “a reasonable police officer could miss the connection between the situation

confronting the sniper” in Harris and the situation in

Kisela. Id.

Similarly, this court’s case law at the time of

Kong’s shooting did not place the question of his right

beyond debate. The Trustee argues the officers should

have known that shooting Kong was an unreasonable

seizure under the Ludwig case. See Ludwig v. Anderson, 54 F.3d 465, 473 (8th Cir. 1995) (denying qualified immunity to officers who fatally shot Ludwig as

he fled with a knife). Ludwig may have been running

away from bystanders when shot, with the nearest bystander 150 feet away. Id. at 473. This court also assumed Ludwig did not physically threaten a police officer. Id. at 473-74. Shot at a distance when posing no

threat to officers or citizens, Ludwig was like the unarmed man shot in Harris, which the Supreme Court

rejected as distinct from the woman in Kisela standing

calmly with a knife near a bystander. See Kisela, 138

S. Ct. at 1154.

In contrast to Ludwig, Kong ran toward bystanders, including a woman driving only 30 feet away.

Kong, 2018 WL 6591229, at *7. Other cars were

parked in the McDonald’s lot, with at least one pedestrian visible among them on the body-camera footage.

The steady flow of vehicles through the parking lot

meant that citizens might quickly approach or step

out of their vehicles. And, a few cars passed by along

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on the frontage road, only 100 feet away, with steady

traffic on the highway beyond. See id. While pointing

their handguns at Kong’s car, the officers continually

warned each other about “crossfire” hitting an officer

or citizen, in or out of a vehicle, by firing at the wrong

angle. If the officers waited, a car might block their

line of fire or bystanders get too close for them to fire.

In fact, a bullet that missed Kong lodged in the

bumper of a vehicle pulling out of the parking lot 30

feet away. Id. When Kong began running through the

occupied parking lot, toward the frontage road and

highway, the officers “were forced to make a split-second judgment in circumstances that were tense, uncertain, and rapidly evolving.” Id. at *18. Although

Kong may not have threatened an officer with his

knife, he posed a threat to citizens. This situation differs from Ludwig, where this court did not mention

nearby traffic or “citizens who might be in the area”

and endangered by crossfire. See Mullenix, 136 S. Ct.

at 309-10 (emphasis in original); Ludwig, 54 F.3d at

473-74. A reasonable officer could miss the connection

between the situation confronting officers in Ludwig

in the woods and the situation with Kong in the

McDonald’s parking lot.

Cases decided by this court after Ludwig make

clear that, at the time of Kong’s shooting, officers

could use deadly force to stop a person armed with a

bladed weapon if they reasonably believed the person

could kill or seriously injure others. See Hayek v. City

of St. Paul, 488 F.3d 1049, 1055 (8th Cir. 2007) (samurai sword); Hassan v. City of Minneapolis, 489 F.3d

914, 919 (8th Cir. 2007) (machete); Estate of Morgan

v. Cook, 686 F.3d 494, 498 (8th Cir. 2012) (knife).

Though Kong appeared high on meth, the cases establish that mental illness or intoxication does not reduce

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the immediate and significant threat a suspect poses.

See, e.g., Hassan, 489 F.3d at 919 (mental illness); Estate of Morgan, 686 F.3d at 498 (intoxication). True,

the Burnsville officers’ training and department policy advised that “taking no action or passively monitoring the situation may be the most reasonable response to a mental health crisis.” However, acting contrary to training “does not itself negate qualified immunity . . . so long as a reasonable officer could have

believed that his conduct was justified.” City of San

Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015).

See generally Davis v. Scherer, 468 U.S. 183, 194

(1984) (“Officials sued for constitutional violations do

not lose their qualified immunity merely because their

conduct violates some statutory or administrative provision.”); Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir.

1993) (same, for police department policy). At any

rate, the Burnsville policy says, “Nothing in this policy shall be construed to limit an officer’s authority to

use reasonable force when interacting with a person

in a crisis.”

Even if the officers caused Kong to leave his car by

confronting him, they would reasonably believe the

law allowed them to shoot him if he posed an immediate and significant threat. Even if officers “created the

need to use” deadly force by trying to disarm a mentally ill person, the reasonableness of force depends on

the threat the person poses during the shooting.

Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995). In

Schulz, a mentally ill man isolated himself in his parents’ basement. Id. at 645. Although he initially presented no threat and had committed no crime, officers

removed his hatchet and tried to subdue him. Id. at

646. The suspect attacked with an ax, forcing an officer to shoot him. Id. This court upheld exclusion of

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evidence that the officers “created the need to use

force.” Id. at 649.

Likewise, in Hayek, officers acted reasonably although their acts led a mentally ill man to attack them

with a samurai sword. Hayek, 488 F.3d at 1054-55

(upholding qualified immunity for fatal shooting).

Though Hayek had committed no crime, officers decided to remove him from his home because his mentally unstable behavior showed he might harm his

mother, when she returned to the home. Id. at 1055.

When he resisted being handcuffed, they chased him

back into the home with a police dog. Id. at 1053.

Hayek attacked an officer with a samurai sword, forcing the other officers to shoot him in response to his

threatening and violent behavior. Id. at 1053, 1055.

In Hassan, officers tried to disarm a man walking

down the middle of the street carrying a machete and

a tire iron. Hassan, 489 F.3d at 917. He ignored repeated commands to drop his weapons. Id. Seeing pedestrians in the direction he was headed, an officer

tased him twice. Id. Running into the parking lot of a

strip mall, the man raised his machete toward an officer (although he obeyed commands to stop). Id. He

moved toward officers despite being tased. Id. at 918.

He continued to approach officers, making slashing

motions with his machete and hitting a police car with

it. Id. Officers shot him fatally. Id.

Based on Schulz, Hayek, and Hassan, a reasonable

officer would have believed the law permitted shooting Kong. Like the officers in Schulz and Hayek, the

Burnsville officers tried to disarm Kong to prevent

him from causing harm, even if he initially posed no

immediate threat to others. See Schulz, 44 F.3d at

646; Hayek, 488 F.3d at 1055. When Kong left his car,

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the threat he posed justified lethal force, even if officers caused him to leave his car. See Hayek, 488 F.3d

at 1055. Like the man in Hassan, Kong’s unpredictable behavior with his weapon made him dangerous

even if he had not yet harmed anyone. See Hassan,

489 F.3d at 919. Cf. Swearingen v. Judd, 930 F.3d 983,

988 (8th Cir. 2019) (holding that the law as of 2014

did not clearly establish a right when knife-wielding

suspect posed threat of serious injury or death, even

though he had not committed a violent crime against

a person). Just as in Hassan, repeated commands and

tasing did not cause Kong to drop his knife. See Hassan, 489 F.3d at 919. The encounter occurred in a

McDonald’s parking lot with citizens in the vicinity,

like the strip mall parking lot in Hassan. See id. While

Hassan involved pedestrians, the McDonald’s parking

lot had at least one pedestrian and several citizens in

cars. See id. at 917.

The Trustee emphasizes that Kong, like Ludwig,

may not have committed a violent felony. See Ludwig,

54 F.3d at 473-74; Kisela, 138 S. Ct. at 1152, quoting

Graham, 490 U.S. at 396 (one factor for excessive force

is “the severity of the crime at issue”). The district

court found a material dispute of fact whether Kong

committed a violent felony by shaking the knife in the

car and moving the blade closer to officer Jacobs.

Kong, 2018 WL 6591229, at *12. Viewing the facts

most favorably to the Trustee, Kong did not commit a

violent felony. Id.

However, 17 years after Ludwig, in Estate of Morgan, this court held that a knife-wielding man posed

an immediate and significant threat even though he

did not commit a violent felony. See Estate of Morgan,

686 F.3d at 497. Officers responded to a domestic dis-

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turbance at Morgan’s house. Id. at 495. Morgan appeared intoxicated. Id. He stumbled on the porch, falling into a recliner, trying to conceal a kitchen knife by

his side. Id. at 495-96. An officer pointed a gun at him

from six to twelve feet away, ordering him repeatedly

to drop the knife. Id. at 496. Morgan stood up, holding

the knife pointed downward at his side. Id. He then

raised his right leg as if to take a step in the officer’s

direction. Id. The officer shot him fatally. Id. This

court held the officer acted reasonably because he had

probable cause to believe Morgan posed a threat of imminent, substantial bodily injury. Id. at 497.

Like Morgan, Kong did not attack an officer with

his knife before being shot. See Kong, 2018 WL

6591229, at *6 (assuming facts most favorably to

Kong). Neither Morgan nor Kong threatened officers

verbally. See Estate of Morgan, 686 F.3d at 495-96;

Kong, 2018 WL 6591229, at *5–6. Both men appeared

under the influence of a substance. See Estate of Morgan, 686 F.3d at 495; Kong, 2018 WL 6591229, at *3.

Based on Estate of Morgan, a reasonable officer would

have believed the law permitted shooting Kong even

without a violent felony.

Existing precedent of the Supreme Court and this

circuit did not provide fair warning to the Burnsville

officers that shooting Kong under these circumstances

was unreasonable. The district court erred in denying

the officers qualified immunity.

III.

The Trustee claims the defendant officers were

negligent under state law for not following Burnsville

police department policies, and that the City of Burnsville, as their employer, is vicariously liable for the officers’ negligence. “The basic elements of a negligence

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claim are: (1) existence of a duty of care; (2) breach of

that duty; (3) proximate causation; and (4) injury.”

Bjerke v. Johnson, 742 N.W.2d 660, 664 (Minn. 2007).

The officers assert the defense of official immunity,

and the City of Burnsville asserts vicarious immunity.

The parties agree that the defendant officers’ conduct

was discretionary. See Smith v. City of Brooklyn Park,

757 F.3d 765, 775 (8th Cir. 2014) (“Under Minnesota

law, the decision to use deadly force is a discretionary

decision.”); Maras v. City of Brainerd, 502 N.W.2d 69,

77 (Minn. Ct. App. 1993) (same). For discretionary

conduct, government officials are entitled to official

immunity unless “guilty of a willful or malicious

wrong.” Vasallo ex rel. Brown v. Majeski, 842 N.W.2d

456, 462 (Minn. 2014). See also Elwood v. Rice Cty.,

423 N.W.2d 671, 677 (Minn. 1988). An official shows

malice only by “intentionally committing an act that

the official has reason to believe is legally prohibited.”

Kelly v. City of Minneapolis, 598 N.W.2d 657, 663

(Minn. 1999). See also Wertish v. Krueger, 433 F.3d

1062, 1067 (8th Cir. 2006) (applying Minnesota law).

This determination “contemplates less of a subjective

inquiry into malice . . . and more of an objective inquiry into the legal reasonableness of an official’s actions.” State by Beaulieu v. City of Mounds View, 518

N.W.2d 567, 571 (Minn. 1994). See also Smith, 757

F.3d at 775.

This court reviews de novo the denial of official and

vicarious immunity on summary judgment. Gordon v.

Frank, 454 F.3d 858, 864, 866 (8th Cir. 2006).

A.

The Trustee argues that this court lacks jurisdiction over the defendants’ official immunity defense.

An appellate court may review a summary judgment

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of official immunity based on facts the district court

found adequately supported or likely assumed. See

Smith, 757 F.3d at 775. See also Vasallo, 842 N.W.2d

at 462, 465; Elwood, 423 N.W.2d at 679 (granting official immunity because there was no genuine issue of

fact). Here, the record, including the district court’s

factual findings and the officers’ body-camera recordings, allows this court to review the denial of summary judgment. Cf. Fedke v. City of Chaska, 685

N.W.2d 725, 728 (Minn. Ct. App. 2004) (relying on

video evidence to grant official immunity). This court

has jurisdiction over the official immunity issue.

B.

The Trustee argues that the officers committed a

willful or malicious wrong by willfully disregarding

the Burnsville police department’s policy on crisis intervention for persons “who may be experiencing a

mental health or emotional crisis.”

The policy says, “Nothing in this policy shall be

construed to limit an officer’s authority to use reasonable force when interacting with a person in crisis.”

The officers acted reasonably when they tried to disarm Kong in his car to prevent him from harming himself or others. See Reuter v. City of New Hope, 449

N.W.2d 745, 748, 750 (Minn. Ct. App. 1990) (granting

official immunity to officers who tried to forcibly remove woman from car and restrain her because her

erratic behavior convinced them she would harm herself or her children). A reasonable officer would have

believed deadly force was necessary to stop Kong from

endangering bystanders when he ran through the

parking lot with a large knife. See Hassan, 489 F.3d

at 920 (applying Minnesota law). Therefore, the officers did not violate the policy. See id. (“Because the

21a

facts establish the officers’ use of deadly force was reasonable, a reasonable fact finder could not conclude

the officers’ conduct was willful or malicious.”).

Even if the officers negligently disregarded the policy, malice requires a higher standard—intentional

wrongdoing. See Vasallo, 842 N.W.2d at 465 (“Malice

is not negligence. It is the intentional doing of a

wrongful act . . . the willful violation of a known

right.”); Kelly, 598 N.W.2d at 663 (holding that reckless acts did not show requisite intent for malice).

Here, the evidence shows that, even if the officers

acted negligently, they did not intentionally disregard

the policy—as shown by comparing their acts to the

policy.

The policy states that officers responding to a call

involving a person in a crisis should request available

backup and specialized resources if necessary. They

should secure the scene and clear the immediate area.

If circumstances reasonably permit, officers should

consider and employ alternatives to force. They

should use de-escalation techniques, such as taking no

action or passively monitoring the situation, as appropriate. They should turn off flashing lights or sirens if

feasible without compromising safety. Also, they

should attempt to determine if weapons are present.

Officers should take into account the person’s potential inability to understand commands or appreciate

the consequences of actions. They also should employ

tactics to preserve the safety of all participants.

Officer Jacobs requested specialized resources,

calling for a medic to stage nearby. See Kong, 2018 WL

6591229, at *4. The officers tried to secure the scene

by blocking Kong’s car and parking a patrol at the

22a

parking lot’s entrance (even if unsuccessful in stopping customers from driving through). See id. at *4–5.

They requested backup to secure the scene. Id. at *5.

Initially they employed alternatives to force, giving

verbal commands Kong ignored. Id. They passively

monitored Kong when they first arrived. See id. at *3.

The officers turned off their sirens, and most turned

off their flashing lights (with one vehicle’s lights flashing to (partly) block incoming traffic). See id. The officers attempted to determine if firearms were present

by breaking the fogged-up rear window. They took

into account Kong’s seeming inability to understand

commands by using the taser to disarm him. See id. at

*4, *6. Kong could have harmed himself or others with

the knife, and his behavior suggested he needed medical or psychiatric treatment. Trying to disarm him

was a tactic to preserve the safety of all participants.

Far from intentionally disregarding the policy, the

officers’ acts show they tried to follow it. Once Kong

started running through the parking lot with the

knife, the officers reasonably believed lethal force was

necessary. The policy allows officers to use reasonable

force. Because they did not willfully disobey the policy,

the officers are entitled to official immunity.

The City of Burnsville is thus entitled to vicarious

official immunity. “Vicarious official immunity is usually applied where officials’ performance would be hindered as a result of the officials second-guessing themselves when making decisions, in anticipation that

their government employer would also sustain liability as a result of their actions.” Schroeder v. St. Louis

Cty., 708 N.W.2d 497, 508 (Minn. 2006). Failing to

grant immunity to the City of Burnsville would create

a disincentive for the City to have policies on officers’

interactions with persons undergoing a mental health

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crisis. See id. (granting immunity to avoid creating a

disincentive for county to create policies on road-grading). See also Anderson v. Anoka Hennepin Indep. Sch.

Dist. 11., 678 N.W.2d 651, 664 (Minn. 2004) (“The

court applies vicarious official immunity when failure

to grant it would focus stifling attention on an official’s performance to the serious detriment of that performance.”); Hayek, 488 F.3d at 1057 (granting vicarious official immunity to city for officers’ discretionary

acts violating policy on emotionally disturbed persons).

The district court erred in denying the defendants

summary judgment for the Trustee’s state-law negligence claim.

*******

The judgment of the district court is reversed, and

the case remanded for further proceedings consistent

with this opinion.

KELLY, Circuit Judge, dissenting.

In my view, the district court correctly denied defendants’ motion for summary judgment after viewing

the evidence in the light most favorable to the Trustee

and deciding that a reasonable jury could find defendants violated Kong’s clearly established right to be

free from excessive force. I also believe the district

court correctly denied defendants summary judgment

on the Trustee’s state-law claims. Accordingly, I respectfully dissent.

I.

Officers are not entitled to qualified immunity if

“(1) they violated a federal statutory or constitutional

24a

right, and (2) the unlawfulness of their conduct was

clearly established at the time.” District of Columbia

v. Wesby, 138 S. Ct. 577, 589 (2018) (cleaned up). The

Trustee claims the officers violated Kong’s clearly established right to be free from excessive force when

they shot him as he fled his parked car. In assessing

this claim, we ask whether the officers’ actions were

“‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham v. Connor,

490 U.S. 386, 397 (1989). Three factors guide this inquiry: “[1] the severity of the crime at issue, [2]

whether the suspect poses an immediate threat to the

safety of the officer or others, and [3] whether the suspect is actively fleeing or resisting arrest.” 1 Wallace v.

City of Alexander, 843 F.3d 763, 768 (8th Cir. 2016)

(cleaned up); see Graham, 490 U.S. at 395. Critically,

the use of “deadly force against a fleeing suspect who

does not pose a significant and immediate threat of

serious injury or death to an officer or others is not

permitted.” Capps v. Olson, 780 F.3d 879, 886 (8th

Cir. 2015).

The district court determined that defendants are

not entitled to qualified immunity on the Trustee’s excessive-force claim. Viewing the facts in the light most

1 As to the third factor, this court has distinguished between a

suspect “fleeing arrest” and a suspect “engaging in a hostile and

intense physical struggle.” Wallace, 843 F.3d at 769 (cleaned up).

The mere act of fleeing arrest does not permit deadly force “unless the suspect poses an immediate and significant threat of serious injury or death” to the officer or others. Id. (cleaned up).

Defendants do not suggest Kong was engaged in a physical struggle when he was shot. Rather, the undisputed facts show he was

running away from the officers at the relevant time. As a result,

the key factor in this case is whether the officers reasonably believed Kong posed an immediate and significant threat of serious

injury or death when they shot him. See id.

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favorable to the Trustee, the court decided that a reasonable officer would not believe Kong had committed

a violent felony or posed a “significant and immediate

threat of serious injury or death” at the time he was

shot. Applying the factors above, the court concluded

that a jury could find the officers’ use of deadly force

was objectively unreasonable in violation of the

Fourth Amendment.

I agree with this analysis. Defendants contend

that the record conclusively shows the officers reasonably believed Kong had committed multiple violent

felonies before he exited his car, which supported

their decision to use deadly force. But when the officers arrived on the scene, Kong was not suspected of a

serious crime. Dispatch simply reported “suspicious

activity” in the McDonald’s parking lot. Kong was inside his parked car, rocking back and forth in the

driver’s seat and waving a knife in an unfocused manner. He did not respond to the officers and said nothing during the entire incident. Kong moved the knife

in Officer Jacobs’s direction after he was first hit with

a taser. But viewing this situation in the light most

favorable to the Trustee, a reasonable officer would

see this as an involuntary response to the intense electric current, rather than as evidence of an intent to

assault or terrorize, as defendants now claim. And

when Kong ultimately exited his car after being tased

twice, he ran away from the officers and bystanders

near the restaurant. A witness inside the restaurant

stated that Kong looked “scared” as he ran from his

car.

Given the officers’ familiarity with their department’s crisis-intervention policy, a reasonable officer

in their position would have recognized the totality of

26a

the circumstances showed Kong was likely experiencing a mental-health crisis rather than committing violent felonies. This is supported by their post-shooting

interviews with the Minnesota Bureau of Criminal

Apprehension, in which none of the four officers

claimed Kong had assaulted Jacobs or committed any

other violent felony before they decided to shoot. Viewing the record in the light most favorable to the Trustee, the “severity of the crime at issue” does not support the reasonableness of the officers’ deadly force.

See Graham, 490 U.S. at 395; Wallace, 843 F.3d at

768.

I also agree with the district court that a jury could

find the officers were unreasonable in their belief that

Kong posed “a significant and immediate threat of serious injury or death to an officer or others.” See

Capps, 780 F.3d at 886. To determine whether a fleeing suspect poses a significant and immediate threat,

an officer should consider “both the person’s present

and prior conduct.” Wallace, 843 F.3d at 768. Still

viewing the evidence in the light most favorable to the

Trustee, a reasonable officer would have recognized

that Kong was in the midst of a mental-health crisis

and did not pose an immediate threat of serious injury

or death. Kong was non-confrontational during the entire encounter. Indeed, he was running away from the

officers and other pedestrians when he was shot. And

while Kong carried a knife, a reasonable officer would

have known he did not pose a significant and immediate threat to anyone else in the vicinity because those

people were driving inside their cars. Kong was moving away from the officers and was unlikely to confront, much less harm, any other person.

27a

In sum, viewing the record in the light most favorable to the Trustee—as we must on summary judgment—a reasonable officer would not have believed

Kong posed a significant and immediate threat of serious physical harm to the officers or the public. Thus,

the use of deadly force was objectively unreasonable

under the circumstances and amounted to excessive

force. See Wallace, 843 F.3d at 768; Capps, 780 F.3d

at 885.

II.

The court concludes that even if the officers used

excessive force when they shot Kong, they are nevertheless entitled to qualified immunity because they

did not violate a clearly established right. Ante at 7. I

respectfully disagree.

Like the district court, I believe defendants violated Kong’s clearly established right to be free from

excessive force, as set out in Ludwig v. Anderson, 54

F.3d 465 (8th Cir. 1995). The officers in Ludwig responded to a call concerning an “emotionally disturbed person” camped behind a restaurant with civilians nearby. Id. at 467. Officers attempted to arrest

Ludwig for engaging in threatening behavior, prompting him to pull a knife and flee. Id. at 468. The officers

chased him to a nearby street and formed a semicircle

around him while pointing their guns and ordering

him to drop the knife. Id. Ludwig continued to

“switch[] the knife from hand to hand . . . as if [he]

might throw the knife.” Id. He “did not lunge at any

police officer,” although one officer stated otherwise at

his deposition. Id. at 469. Then, despite knowing that

mace might further perturb an “emotionally disturbed

person,” an officer maced Ludwig. Id. This caused him

to immediately turn and run “towards [a street] where

28a

[the officers] could see pedestrians.” Id. Soon after

Ludwig began to run, the officers shot and killed him.

Id. Although he was running away from the officers,

and the nearest visible bystanders were “across the

street approximately 150 feet” away, officers believed

deadly force was needed to “stop Mr. Ludwig from possibly attempting to get across the street, which he

would then be in contact with other citizens that were

in . . . [an] apartment building [and] could do harm.”

Id.

On these facts, this court decided the officers were

not entitled to qualified immunity because “material

questions of fact remain as to whether Ludwig’s actions at the time of the shooting, even if dangerous,

threatening, or aggressive, ‘posed a threat of serious

physical harm.’” Id. at 473 (cleaned up) (quoting Tennessee v. Garner, 471 U.S. 1, 11–12 (1985)). We explained that a reasonable jury could decide the officers

violated the Fourth Amendment by shooting Ludwig

after they “suspected him initially of being homeless

and emotionally disturbed, and, later, of misdemeanor

criminal activity which arguably placed no one in immediate harm.” Id. at 474.

The court today concludes that our decision in

Ludwig did not fairly warn defendants that their actions violated the Constitution because, unlike Ludwig, “Kong ran toward bystanders, including a woman

driving only 30 feet away.” Ante at 9. But officers shot

Ludwig as he ran towards a street where the officers

“could see pedestrians.” Ludwig, 54 F.3d at 469. While

Ludwig might not have been running directly towards

the pedestrians when he was shot, the officers feared

he would “attempt[] to get across the street, which he

would then be in contact with other citizens,” who

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were between 50 and 150 feet away. 2 Id. at 469, 473

n.6.

Although “clearly established law should not be defined at a high level of generality[,] it is not necessary

. . . that the very action in question has previously

been held unlawful,” so long as precedent evinces “a

fair and clear warning of what the Constitution requires.” Thompson v. City of Monticello, 894 F.3d 993,

999 (8th Cir. 2018) (cleaned up). In my view, Ludwig

clearly established that it is objectively unreasonable

to use deadly force against a fleeing person who is

likely experiencing a mental-health crisis and holding

a knife if that person has not committed a violent felony, is moving away from officers, and does not pose a

significant and immediate risk of serious harm. Because a reasonable jury could decide the officers violated this clearly established right when they shot

Kong, I would affirm the district court’s denial of qualified immunity. See Thompson, 894 F.3d at 1000. 3

2 The court cites several subsequent cases to bolster its conclu-

sion that the right at issue here was not clearly established. Ante

at 9 (citing Estate of Morgan v. Cook, 686 F.3d 494, 497–98 (8th

Cir. 2012); Hassan v. City of Minneapolis, 489 F.3d 914, 919 (8th

Cir. 2007); Hayek v. City of St. Paul, 488 F.3d 1049, 1054–55 (8th

Cir. 2007)). However, Kong, unlike the decedents in Morgan,

Hassan, and Hayek, did not pose a significant and immediate

threat of serious injury when he was shot; therefore, those cases

are not comparable.

3 I would also affirm the denial of official immunity on the Trus-

tee’s state-law claim. Official immunity applies unless the officers committed “a willful or malicious wrong.” See State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 569 (Minn. 1994)

(quoting Elwood v. Rice Cty., 423 N.W.2d 671, 677 (Minn. 1988)).

This depends on “the legal reasonableness of [the officers’] actions.” Id. at 571. Viewing the record in the light most favorable

to the Trustee, the officers were objectively unreasonable in their

30a

I respectfully dissent.

use of force, as explained above. Therefore, the district court correctly denied official immunity. See Maras v. City of Brainerd,

502 N.W.2d 69, 78 (Minn. Ct. App. 1993) (denying official immunity at summary judgment because the officer’s “intentional”

decision to shoot a person brandishing a knife, whom he deemed

a threat, along with the officer’s “aware[ness] of state and city

policy regarding the use of deadly force,” were “sufficient to let

the jury decide whether his actions constituted a willful or malicious wrong”).

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APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Sok Kong, Trustee for

Next-of-Kin

of

Map

Kong, Decedent,

Case No. 16-cv-03634

(SRN/HB)

Plaintiff,

v.

MEMORANDUM

OPINION AND ORDER

City

of

Burnsville;

Maksim Yakolev, in his

individual and official

capacity; John Mott, in

his individual and official capacity; and Taylor

Jacobs, in his individual

and official capacity,

Defendants.

Richard E. Student and Steven J. Meshesher,

Meshbesher & Associates, P.A., 10 South Fifth Street,

Suite 225, Minneapolis, MN 55402 for Plaintiff.

Patrick C. Collins and Joseph E. Flynn, Jardine Logan

& O’Brien PLLP, 8519 Eagle Point Boulevard, Suite

100, Lake Elmo, MN 55042 for Defendants.

__________________________________________

SUSAN RICHARD NELSON, United States District

Judge

A little before 6:30 AM, on Thursday, March 17,

2016, Burnsville city police officers encountered a 38-

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year-old man named Map Kong in the parking lot of a

local McDonalds. Mr. Kong was seated in his Pontiac

hatchback, high on methamphetamines, shaking erratically, and, most distressingly, waving around a

large knife. Around seven minutes later, three of the

officers shot and killed Mr. Kong. What happened during those seven minutes was captured on video, and

prompted this litigation.

Mr. Kong’s family, Plaintiff here, contends that the

video evidence shows police officers unreasonably using deadly force against a confused man in the midst

of a mental health crisis, in contravention of the

Fourth Amendment, as well as committing violations

of the Fourteenth Amendment and Minnesota state

negligence law. The City of Burnsville and the three

officers who shot Mr. Kong, Defendants here, disagree. They argue that the video evidence shows police

officers reasonably responding to a dangerous man on

the verge of injuring nearby civilians.

The Court is now tasked with deciding whether to

grant Defendants’ summary judgment motion, in

which Defendants argue that, given the video evidence and the generous protections afforded by federal and state immunity doctrines, the Court should

rule in their favor as a matter of law. Plaintiff vigorously opposes the motion, arguing that, when the

video evidence is construed in Mr. Kong’s favor, as it

must be, qualified immunity cannot be determined as

a matter of law, and the case must therefore go before

a jury.

For the following reasons, the Court will grant in

part and deny in part Defendants’ motion. Specifically, the Court grants Defendants’ motion with respect to Plaintiff’s Fourteenth Amendment medical

33a

indifference claim, but denies Defendants’ motion

with respect to Plaintiff’s Fourth Amendment excessive force claim and Plaintiff’s state law negligence

claim.

I. BACKGROUND

In relaying the facts of this contentious case, the

Court relies on three key principles. First, because excessive force claims are “judged from the perspective

of the reasonable officer on the scene, rather than with

20/20 vision of hindsight,” the Court must focus on

only the information the defendant officers had available to them in the moments leading up to the shooting. Graham v. Connor, 490 U.S. 386, 396 (1989); accord Tatum v. Robinson, 858 F.3d 544, 549 (8th Cir.

2017). Second, because this case is in a summary judgment posture, the Court must “not resolve genuine

disputes of fact in favor of” Defendants, and it “must

view the evidence in the light most favorable to” Plaintiff, including by drawing all “reasonable inferences .

. . in [Plaintiff’s] favor.” Tolan v. Cotton, 572 U.S. 650,

656-57, 660 (2014) (per curiam); accord Wealot v.

Brooks, 865 F.3d 1119, 1125 (8th Cir. 2017). Third,

although the Court need not accept Plaintiff’s version

of events to the extent it is “blatantly contradicted” by

video evidence, Scott v. Harris, 550 U.S. 372, 380

(2007), “inconclusive” video evidence must still be construed in Plaintiff’s favor, Raines v. Counseling Assocs., Inc., 883 F.3d 1071, 1074-75 (8th Cir. 2018); accord Thompson v. City of Monticello, 894 F.3d 993,

998-99 (8th Cir. 2018).

A. Factual Description of the Shooting

This is the rare officer-involved shooting case in

which the entire incident is captured on the four present officers’ body cameras. As such, in describing the

34a

shooting, the Court relies principally on video evidence. The Court will supplement its description of

this footage with facts gleaned from the officers’ postshooting Minnesota Bureau of Criminal Apprehension (BCA) interviews as well as various deposition

testimony.

Because Officer John Mott’s body camera appears

to best capture the entirety of the incident, the Court

will generally cite to that footage. (See Defs.’ Ex. H

[Doc. No. 38-6] (“Mott Body Camera”).) Still, because

each of the officers’ body cameras offers a unique and

important perspective, the Court will cite to other

footage when necessary. (See Defs.’ Ex. J [Doc. No. 388] (“Jacobs Body Camera”); Defs.’ Ex. N [Doc. No. 3810] (“Tonne Body Camera”); Defs.’ Ex. Q [Doc. No. 3812] (“Yakovlev Body Camera”).)

For ease of understanding, the Court will break

down the shooting into four discrete segments: (1) the

officers’ initial encounter with Mr. Kong; (2) the officers’ decision to break Mr. Kong’s car windows after

their commanding officer, Sergeant Maksim Yakovlev, arrived; (3) the officers’ use of a taser on Mr.

Kong; and (4) the officers’ use of deadly force on Mr.

Kong. At the outset, though, the Court again emphasizes that most of the events described below took

place over the course of only seven minutes.

1. The Officers Encounter Mr. Kong in His

Car After Receiving a 9-1-1 Call and

Consider Their Options

At 6:16 AM, on Thursday, March 17, 2016, a customer at the Burnsville McDonalds near State Highway 13 called 9-1-1. (See Defs.’ Ex. G [Doc. No. 38-5]

(“Incident Recall Report”).) The customer calmly told

the operator that the police “should send a car down”

35a

because “a guy” was “jumpin’ back and forth” inside

his car in the parking lot, and had a “knife in his hand”

that “he’s been waving back and forth.” (Defs.’ Ex. D

[Doc. No. 38-3] (“9-1-1 Call Transcript”); see also Defs.’

Ex. C [Doc. No. 38-2] (audio recording of call).) The

customer then clarified that the car was not running,

and that the man had been “carrying on” like this for

at least a half an hour. (9-1-1 Call Transcript at 2.)

The customer also noted that he was not sure if somebody else was in the car. (Id. at 1.)

A dispatcher simultaneously relayed to police officers in the area that “suspicious” activity was occurring

at the Burnsville McDonalds off Highway 13. (Defs.’

Ex. F [Doc. No. 38-5] at 1 (“Transcript of Police Department Radio Traffic”); see also Defs.’ Ex. E [Doc.

No. 4] at 00:10-00:30 (“Audio Radio Traffic ).) Namely,

“a male in the vehicle in the lot who is jumping up and

down inside his car . . . unknown if he is alone . . . he

may be waving a knife back and forth inside the car.”

(Id.) Shortly thereafter, the dispatcher added that the

“vehicle ha[d] been there for more than half an hour,”

and that an employee had seen the knife. (Id. at 2:09

to 2:18.) The officers did not receive information that

the “suspicious” individual had directly threatened

anyone at the McDonalds, or that he had committed a

crime. 1

1 For the sake of thoroughness, the Court notes four more pre-

liminary facts it gleaned from the record. First, the “suspicious”

individual’s name was Map Kong, a 38-year-old CambodianAmerican male residing in Chaska, Minnesota. (See Defs.’ Ex.

EE [Doc. No. 41] (“Hennepin County Medical Examiner’s HCME

Report”).) Second, Mr. Kong had a history of intermittent mental

health and substance abuse issues. (See Defs.’ Ex. T [Doc. No. 40]

at 4-5 (“Expert Report of Dr. Stacy Hail”).) Third, according to an

interview with Mr. Kong’s neighbor, Mr. Kong came over to the

36a

In response to this dispatch, Burnsville city police

officers John Mott and Taylor Jacobs arrived in separate vehicles at the McDonalds parking lot around

6:22 AM. (See Incident Recall Rep.) Officer Mott had

been a police officer for around eight years. (Defs.’ Ex.

L [Doc. No. 38-9] at 8 (“Mott Deposition”).) 2 Further,

because Officer Mott had taken a “40-hour week long

crisis intervention training” course five years prior,

the City considered him a “Crisis Intervention Training (CIT) member.” (Id. at 30, 70-71.) Per the Burnsville Police Department’s “Crisis Intervention Policy”

(also known as Policy No. 423, or CIT Policy), a CIT

member should be the lead officer when dealing with

someone “who may be experiencing a mental health or

emotional crisis,” 3 and should attempt to follow the

neighbor’s home around 10:00 PM the night before the shooting,

acting “crazy” and claiming that “he was being followed by a female who was trying to hurt him.” (See Defs.’ Ex. NN [Doc. No.

38-18] at 3-4 (“Dakota County Memorandum on Kong Shooting”).) Because the neighbor “had never seen Mr. Kong behave

this way,” he offered to take him ot the hospital. (Id.) Instead,

however, Mr. Kong acted “scared and fled the residence,” not

wearing socks or shoes. (Id.) Fourth, according to security camera footage, Mr. Kong parked int eh McDonalds lot around 1:00

AM, after having gone through the drive-thru. (See Defs.’ Ex. W

[Doc. No. 38-16] at 19 (“Expert Report of Forensic Video Solutions”).) There is no evidence that Mr. Kong left his car at any

point from then until the moments before his death.

However, because this information was not available to the

officers at the time of the shooting, the Court will not rely on it

in evaluating the reasonableness of Defendants’ actions.

2 All deposition and interview citations are to the deposition or

interview page number, rather than the ECF page number.

3 Signs that a person may be in a “mental health crisis” include:

“delusions or hallucinations,” “manic or impulsive behavior, extreme agitation, lack of control,” and “lack of fear.” (CIT Policy at

1-2.)

37a

“de-escalation” steps outlined by the policy, with the

goal of “resolv[ing] the incident by the safest and least

confrontational means possible.” (Defs.’ Ex. RR [Doc.

No. 38-19] at 2 (“CIT Policy”).) These steps include requesting backup officers and specialized resources,

turning off flashing lights, acknowledging a person’s

potential inability to understand commands, securing

the scene and clearing the immediate area, and, if possible, “passively monitoring the situation” and/or using alternatives to force. (Id.) Officer Jacobs had been

a police officer for four years, and, although he was not

a CIT member, he was familiar with the Burnsville

police department’s CIT policy. (See Defs.’ Ex. M [Doc.

No. 38-9] at 6, 37-38 (“Jacobs Deposition”).)

Upon parking, Officer Jacobs took down Mr.

Kong’s license plate number, but did not request any

further information connected to the license plate

number. (See Defs.’ Ex. J [Doc. No. 38-8] at 0:40-0:44

(“Jacobs Body Camera”); see also Jacobs Dep. at 9

(stating that, although he could have asked dispatch

for additional information connected to a license plate,

he did not do so in this case).) Then, because the sun

had not yet risen, Officers Jacobs and Mott approached Mr. Kong’s blue Pontiac hatchback with

flashlights (and firearms) drawn. (See Mott Body

Camera at 1:20-1:25.) 4

In the body camera footage, one can see steady

weekday morning traffic in the background, both on

the Frontage Road directly abutting the McDonalds,

and, more particularly, on Highway 13, which lay a

short distance from the parking lot. (See, e.g., id. at

4 Both of the officers’ body camera were on from the moment they

arrived.

38a

00:50-1:00.) Further, over the course of this encounter, one can see cars turning into the McDonalds parking lot en route to the drive-thru. (See Defs.’ Ex. W

[Doc. No. 38-16] at 19 (“Expert Report of Forensic

Video Solutions”) (noting that, over the course of the

incident, 13 civilian vehicles moved in and out of the

parking lot).) However, one cannot see any pedestrians walking around, possibly because of the early

morning hour and the fact that the surrounding properties are all commercial/industrial in nature. (See

Defs.’ Br. in Support of Summ. J. (“Defs.’ Br.”) [Doc.

No. 37] at 5 (displaying screenshot of area from Google

Maps, which the Court replicates below).)

When Officers Mott and Jacobs reached the vehicle, they encountered a very agitated Mr. Kong. Specifically, Mr. Kong was seated in the drivers’ seat with

the windows rolled up, and he was rocking back and

forth while slashing a large knife through the air in

front of him, as if he was fighting an invisible person.

39a

(See, e.g., Mott Body Camera at 1:40-1:45.) In an interview taken hours after the incident, Officer Mott

aptly described Mr. Kong’s motions as “frantic” and

“abnormal.” (Defs.’ Ex. JJ [Doc. No. 38-18] at 7 (“Mott

BCA Interview”); see also Defs.’ Ex. KK [Doc. No. 3818] at 11 (“Jacobs BCA Interview”) (stating that, when

he first saw Mr. Kong, he “looked like he was in some

sort of distress”).) At their depositions, both officers

also stated that, at the time, they thought Mr. Kong

was under the influence of methamphetamines or

bath salts. (See Mott Dep. at 21; Jacobs Dep. at 10.)

Nonetheless, both officers also contended at their depositions that, at the time, they did not believe this was

a “mental health situation,” in which the aforementioned CIT policy would apply. (See Mott Dep. at 21,

64-70, 72-73; Jacobs Dep. at 14, 25-26, 38.)

With their firearms and flashlights pointed directly at Mr. Kong, the officers immediately (and repeatedly) began yelling at Mr. Kong to “drop the knife”

and show his hands, but to no avail. (See Mott Body

Camera at 1:20-2:10.) Officer Jacobs also informed

Mr. Kong that he was under arrest. (Id. at 1:34.) Although Officer Jacobs did not tell Mr. Kong what he

was under arrest for at the time, at his deposition Officer Jacobs clarified that he could have arrested Mr.

Kong for “disorderly conduct, threats of violence . . .

obstruction.” (Jacobs Dep. at 10; see also Defs.’ Br. at

23 (providing statutory citations).) 5

5 Specifically, Officers Mott and Jacobs believed Mr. Kong had

committed (or was committing) felony terroristic threats (Minn.

Stat. § 609.713), gross misdemeanor obstruction of justice (Minn.

Stat. § 609.50), and misdemeanor disorderly conduct (Minn. Stat.

§ 609.72).

40a

About 30 seconds after Officers Mott and Jacob

first approached Mr. Kong, a third Burnsville city police officer, Officer Lynrae Tonne, arrived. (See Mott

Body Camera at 2:10 (car pulling up), 2:40 (joining officers).) Officer Tonne had been a police officer for

around 18 years, and, like Officers Jacobs, was familiar with the CIT policy, but not a CIT team member.

(See Defs.’ Ex. P [Doc. No. 38-11] at 6, 30 (“Tonne Deposition”); Defs.’ Ex. LL [Doc. No. 38-18] at 3 (“Tonne

BCA Interview”).) At Officer Mott’s direction, Officer

Tonne parked her squad car immediately in front of

Mr. Kong’s vehicle. (See Mott Body Camera at 2:102:12.)

Because verbal commands and pointed handguns

were not causing Mr. Kong to drop the knife (or having any effect on him at all), the three officers began

discussing alternative options. In between continued

shouts of “drop the knife!”, Officer Mott suggested

“bust[ing] a window” and “tas[ing] him,” to which Officer Jacobs said, “we can hold off a little bit here, but

we can bust the window and tase him if you want.”

(Mott Body Camera at 2:30-2:48.) “If he gets out,” Officer Jacobs added, “I’ll go lethal.” (See id. at 2:48-2:50;

Jacobs Dep. at 11 (explaining that, to police, “go lethal” means having one’s handgun out and ready to

fire).) The officers then contemplated how best to surround Mr. Kong’s car so as to taser him without risking “cross fire,” which prompted Officer Mott to comment, “this is going to go badly either way.” (Mott

Body Camera at 3:22.) At one point, Officer Jacobs observed that Mr. Kong might have a gun in the car, too.

(Id. at 4:56.)

Still, for roughly another three minutes, the officers did not take further action against Mr. Kong. Instead, they held their ground around the car and

41a

watched Mr. Kong occasionally burst into frantic fits

of gyrations and knife waving, as he had been doing

since the officers arrived. (See generally id. at 3:206:20.) At no point did Mr. Kong attempt to exit the car

or engage with the officers. Perhaps because of this,

Officer Tonne stated, “he’s contained for now, so let’s

just wait until other people get here.” (Id. at 4:104:16.) However, the officers did not discuss this “containment” option, or any other tactical decisions, at

length.

Moreover, during this three-minute pause Officer

Jacob called for a “stage medic” and then moved his

squad car behind Mr. Kong’s vehicle, so that Officer

Tonne’s car and his car would block Mr. Kong in from

the front and back. (Id. at 5:40; see also Jacobs Body

Camera at 3:54; Audio Radio Traffic at 10:04.) Although there was no discussion at the time as to why

Officers Jacobs called for a medic, at his deposition Officer Jacobs stated that “staging medics [at the scene]

is something I commonly do . . . if I see somebody

that’s under the influence of what I believe to be methamphetamines.” (Jacobs Dep. at 15-16.) He also expressed concern about “a potential victim in the car.”

(Id.) 6

Around the same time, Officer Mott requested that

any additional units “completely block off traffic com-

6 Although Officer Jacobs did not inform the dispatcher of any

mental health concerns, the dispatcher who conveyed Officer Jacobs’s request to the medic treated the situation as a “possible

psych hold.” In other words, she thought Mr. Kong’s “behaviors

would indicate the medics are being requested because of possible psycho[logical] issues,” based on the 9-1-1 call notes she had

in front of her. (Pl.’s Ex. C [Doc. No. 49-3] at 7, 11-12 (“Kristeen

Kennedy Deposition”).)

42a

ing into the McDonalds parking lot.” (Mott Body Camera at 5:50-5:54; Audio Radio Traffic at 11:24.) However, neither officer appeared to confirm when medics

and/or additional units would arrive.

2. After Seargeant Yakolev Arrives, the

Officers Decide to Break Two of Mr.

Kong’s Car Windows to See If Anyone

Else Is Inside

This momentary lull in activity concluded when

Sergeant Maksim Yakovlev arrived on the scene. (See

Tonne Body Camera at 3:50; see also Incident Recall

Rep. (noting that Sergeant Yakovlev (“Stat

BV/45S39”) arrived at 6:30 AM).) Sergeant Yakovlev

had been a police officer for 13 years, including a sergeant for four of those years, and was familiar with

the department’s CIT policy. (See Defs.’ Ex. S [Doc.

No. 38-13] at 6-7, 30 (“Yakovlev Deposition”).)

After parking his brightly-lit squad car at the

Frontage Road entrance to the McDonalds (albeit

without completely blocking off the entrance), Sergeant Yakovlev approached his fellow officers and

asked whether Mr. Kong was “cutting himself or

what,” to which Officers Jacobs replied “no, he’s just

swinging the knife around.” (Jacobs Body Camera at

5:40-5:45.) Officer Jacobs then assessed the situation

for Sergeant Yakovlev: “So, our options so far, he’s

contained, we can bust the window and pop him with

a Taser, ’cause if he hops out of that car . . . .” (Id. at

5:45-5:55.) Officer Mott added that, while it looked as

though Mr. Kong was by himself, they could not see

the backseat. (Id. at 6:03-6:05.)

In response, Sergeant Yakovlev suggested that the

officers “figure out if he’s by himself there first.” (Yakovlev Body Camera at 1:55-2:00.) After circling

43a

around toward the passenger side of Mr. Kong’s car

(the side of the car farther away from Frontage Road),

and finding those windows just as fogged up as the

ones on the drivers’ side, Sergeant Yakovlev and Officer Mott instructed Officer Jacobs to “bust out [Mr.

Kong’s] back window” with his baton, while still

“watch[ing] the cross-fire.” (Id. at 2:30-2:30.)

As the officers surrounded the Pontiac even more

closely, Mr. Kong continued to frantically gyrate back

and forth in his seat, knife in hand. (See Mott Body

Camera at 7:00-7:20.) The officers did not discuss

what they would do if Mr. Kong was, in fact, alone in

his vehicle, or what they would do if Mr. Kong “hopped

out of the car,” as Officer Jacobs had alluded to a moment earlier. Rather, as Officers Jacobs began swinging his baton into Mr. Kong’s car window, the three

other officers stood in an L-shaped formation around

the car, guns aimed at Mr. Kong. 7

3. The Officers Twice Taser Mr. Kong,

Who Is Still Sitting Inside His Car

At this point, everything began to move very

quickly. Immediately after Officer Jacobs successfully

smashed Mr. Kong’s passenger-side windows, Officers

Tonne and Mott again began yelling at Mr. Kong to

7 After the fact, Officer Mott explained the officers’ strategy as

follows: “Our game plan was to get him to drop the knife and

come out of the vehicle with no weapons in his hands so we could

figure out what the deal was and so he wasn’t presenting a threat

to all the people that were around us.” (Mott. Dep. at 48-49.) “As

long as he [was] in that car we [were] not going to be able to make

the situation safe,” Officer Mott emphasized. (Id.) Officer Mott

also stated that, given the presence of civilians in the area,

breaking the car window and deploying a taser presented “the

fastest, safest way to try to come to a good resolution of this.” (Id.

at 52.)

44a

“drop the knife!” (See Mott Body Camera at 7:40-7:45.)

At the same time, and without further discussion, Officer Jacobs exclaimed “taser, taser,” and fired his

taser at Mr. Kong. (Id. at 7:45; see also Jacobs Dep. at

22, 39 (asserting that “taser, taser” functioned as a

warning for both Mr. Kong and his fellow officers).)

Although Mr. Kong made various high-pitched, distressed squealing noises in response to this activity,

the taser did not cause him to either drop his knife or

cease bouncing up and down in his seat. (See, e.g.,

Mott Body Camera at 7:42, 7:55.) Further, although

Mr. Kong had not moved to exit his vehicle at this

point, Sergeant Yakovlev, standing near the front of

the car, closest to Mr. Kong, repeatedly said “he’s coming out” and readied his firearm. (See Yakovlev Body

Camera at 2:56-2:58; see also Forensic Video Analysis

Ex. Rep. at 17 (noting that Sergeant Yakovlev stood

about ten feet from Mr. Kong’s car).)

About ten seconds later, as Officer Jacobs prepared

to fire a second taser round at Mr. Kong (presumably

because the first one did not have the desired effect),

Mr. Kong swung his knife closer to the broken passenger-side window. Mr. Kong then fell back in his seat

as the second taser shot hit him. (See Mott Body Camera at 8:03-8:07; Tonne Body Camera at 5:38-5:40; see

also Defs.’ June 1, 2018 Letter [Doc. No. 56] (providing

further detail on this point).) Defendants describe this

moment as an “assault” on Officer Jacobs, in which

Mr. Kong “violently swung and lunged his large knife

out of the broken passenger side window at [Officer]

Jacobs.” (Defs’ Br. at 13; see also id. at 23 (citing Minn.

Stat. § 609.221, subd. 2 (first degree felony assault on

a police officer).) Plaintiff, by contrast, interprets Mr.

Kong’s motion as part and parcel of the “the erratic

arm motions he had been making prior to the taser

45a

deployment,” or, “at most,” a defensive reaction “to the

taser cartridge and/or wire at the moment the taser is

deployed for a second time.” (See Pl.’s Br. in Opp’n to

Defs.’ Summ. J. Mot. [Doc. No. 48] at 10 (“Pl.’s Br.”))

4. The Officers Shoot and Kill Mr. Kong as

He Attempts to Flee His Car

In either event, right after the second taser round

hit Mr. Kong, Mr. Kong stumbled out of the driverside door and fell to the pavement. (See Yakovlev Body

Camera at 3:15; Mott Body Camera at 8:06-8:08.)

However, he quickly stood up, knife in hand, and began running north toward Frontage Road, away from

the officers and away from the McDonalds. (See Yakovlev Body Camera at 3:16-3:21; Mott Body Camera

at 8:09-8:12.) One onlooker from inside the restaurant, a McDonalds employee named Guadalupe Sandoval, stated that, when Mr. Kong fled his car, he

looked “scared.” (See Defs.’ Ex. Y [Doc. No. 38-17] at

14 (“Sandoval Deposition”) (explaining that, after the

officers tased Mr. Kong, “he opened the door scared

and ran”).) 8

Then, without further discussion or warnings, Officers Mott, Jacobs, and Yakovlev shot Mr. Kong from

the back and side, ultimately firing at least 23 bullets

within a span of three seconds. (See Dakota Cty. Mem.

at 7 (number of bullets); Forensic Video Solutions Ex.

Rep. at 25 (timespan).) 15 bullets hit Mr. Kong, killing

him instantly. (See Dakota County Memorandum at

8; see also Mott Body Camera at 10:00-10:05 (finding

8 Ms. Sandoval also recorded a cellphone video of the final sec-

onds of the shooting from inside the restaurant. (See Defs.’ Ex. V

[Doc. No. 38-15] (“Sandoval Cell Phone Video”).) However, in the

Court’s view, the body camera videos provide a far clearer visual

of the shooting.

46a

no pulse upon checking Mr. Kong’s body).) Officer

Mott later stated that this was the first time he had

discharged his weapon in the line of duty. (See Mott

BCA Interview at 14.)9

At the time of the shooting, the video evidence

shows a tan civilian vehicle exiting the McDonalds,

driven by a woman named Patricia Unterschuetz,

around 30 feet northwest of Mr. Kong. (See Forensic

Video Solutions Ex. Rep. at 17-18; Yakovlev Body

Camera at 3:11-3:13.) Indeed, one of the officer’s bullets lodged into Ms. Underschuetz’s back bumper as

she pulled out of the parking lot. (See Defs.’ Ex. BB

[Doc. No. 38-17] (“Pictures of Bullet in Ms. Unterschuetz’s Vehicle”); Defs.’ Ex. X [Doc. No. 38-17] at 2023 (“Unterschuetz Deposition”) (explaining that she

did not realize a bullet hit her car until later that

day).) Moreover, steady traffic on Highway 13 is visible in the background, as are a few cars driving along

Frontage Road. (See, e.g., Mott Body Camera at 8:128:20; Tonne Body Camera 5:55-6:05.)

However, apart from the officers and the McDonalds’ customers and employees in the store, all of

whom Mr. Kong was moving away from at the time of

his death, no pedestrians are visible in the video. (Accord Mott Dep. at 38 (confirming that, at the time of

the incident, he did not recall Mr. Kong running toward “any pedestrians not in vehicles”).) Further, although Defendants argue that Officer Mott and

Tonne’s body cameras show Mr. Kong “sprinting toward [Ms.] Unterschuetz with a long knife in his right

9 Although Officer Tonne did not fire her weapon, she has con-

sistently stated that she only did so because she was not in a good

shooting position, and that her fellow officers were justified in

using deadly force against Mr. Kong. (See, e.g., Tonne Dep. at 15.)

47a

hand,” (Defs.’ Letter June 1, 2018 Letter at 2), when

one views the videos in the light most favorable to

Plaintiff, it appears that Mr. Kong is simply running

in the direction of Frontage Road, and away from the

officers tasing him, rather than at Ms. Underschuetz’s

vehicle in particular. (See, e.g., Mott Body Camera at

8:10.)

Still, in both their BCA interviews and depositions,

all four officers contended that when Mr. Kong ran

from his car, knife in hand, he posed an imminent

threat of “great bodily harm or death” to both themselves and the surrounding public. (SeeDefs.’ Br. at 17

(collecting record citations).) For instance, Officer

Mott stated that, even if Mr. Kong was not poised to

attack any one person or car, deadly force was justified because “there was cars constantly coming and

going,” including “traffic just basically across the

parking lot on Highway 13.” (Mott Dep. at 37; see also

Yakovlev Dep. at 21 (stating that, regardless of Mr.

Kong’s intent, Mr. Kong had the “opportunity and

means” to harm “people that are on Highway 13 and

the Frontage Road and in that general area, including

my officers”).) More specifically, Sergeant Yakovlev

worried that, “if [Mr. Kong] would’ve got close enough

to that traffic, then he could either carjack a car or

stab somebody or run in the traffic and get hit himself.” (Defs.’ Ex. MM [Doc. No. 38-18] at 20 (“Yakovlev

BCA Interview”).) 10

At oral argument, Defendants’ counsel amplified this fear:

“COURT: And what risk did Mr. Kong pose to [civilians] with a

knife if they are in a vehicle? COUNSEL: He could easily have

opened the door and stabbed them. He could highjack them. We

have carjackings that happen all the time.” (May 25, 2018 Hr’g

Tr. at 12-13.)

10

48a

Ms. Sandoval, the aforementioned McDonalds employee, and Kimberly Starinskis, a McDonalds drivethru customer who exited the premise seconds before

the shooting, also said that, at the time, they feared

for the safety of everyone around Mr. Kong. (See Sandoval Dep. at 15, 19; Defs. Ex. HH [Doc. No. 38-18] at

23-24 (“Starinskis Deposition”).) 11

5. The Aftermath

Almost immediately after the officers shot Mr.

Kong another Burnsville police officer, detective Sergeant Gast, arrived on the scene, followed by three

more police officers in the ensuing minutes. (See generally Yakovlev Body Camera at 3:40-10:00; Yakovlev

Dep. at 12-14; Incident Recall Rep. (showing that Sergeant Gast arrived at 6:31 AM, followed by other officers at 6:34, 6:38, and 6:46 ).) Some of these officers

were from the neighboring Savage, Minnesota police

department, which Sergeant Yakovlev had radioed for

assistance after Mr. Kong’s death. (Id.) 12

11 Although, in fairness, Ms. Sandoval also said she felt fear “be-

cause [the police] shot [Mr. Kong] and [she] had never seen anyone die in front of [her].” (Sandoval Dep. at 15.) And Ms.

Starinskis admitted that her fear stemmed from seeing Mr.

Kong’s movements in his car as she drove by, rather than from

Mr. Kong’s dash from his car. (Starinskis Dep. at 34-35.)

12 Although Sergeant Yakovlev attests that no other officers were

available from the Burnsville Police Department the morning of

March 17, (see Defs.’ Ex. SS [Doc. No. 38-20] at 2-3 (“Affidavit of

Sergeant Maksim Yakovlev”)), it is not clear why the officers did

not try to call upon other departments, like the Savage Police

Department, prior to breaking into Mr. Kong’s vehicle (See Yakovlev Dep. at 12-14 (stating that “we can request help from . . .

Savage, Minnesota State Patrol, Eagan Police Department, Apple Valley Police Department, Bloomington”).)

49a

Medics arrived about five minutes after the shooting, at 6:35 AM, and carried away Mr. Kong’s body.

(See Yakovlev Body Camera at 9:44; Incident Recall

Rep.) A post-mortem toxicology test confirmed that

Mr. Kong was under the influence of amphetamines

and methamphetamines at the time of his death. (See

Dakota Cty. Mem. at 8.)

Per County policy, the Dakota County Attorney’s

office empaneled a grand jury to consider filing criminal charges against Officers Jacobs, Mott, and Yakovlev. (See Defs.’ Ex. NN [Doc. No. 38-18] (“Dakota

County Press Release”).) However, on June 21, 2016,

the County Attorney announced that the grand jury

had concluded that the officers’ use of deadly force was

justified under Minnesota law. (Id.)

B. Procedural History

1. Claims and Defenses at Issue

A few months later, on October 26, 2016, the courtappointed trustee for Mr. Kong’s next-of-kin, which

include Mr. Kong’s “two sons, his parents, and his

nine siblings,” filed this lawsuit. (See Compl. [Doc. No.

1] ¶ 4.) In it, the trustee (hereinafter “Plaintiff”) asserted Section 1983 claims against Officers Mott, Jacobs, and Yakovlev (hereinafter “Defendants”) for (1)

use of excessive force against Mr. Kong, in violation of

the Fourth Amendment and (2) deliberate indifference to Mr. Kong’s objectively serious medical needs,

in violation of the Fourteenth Amendment. Plaintiff

also asserted a state law negligence claim against Defendants for failing to adhere to various Burnsville Police Department policies during their encounter with

50a

Mr. Kong, particularly the aforementioned CIT Policy.

(Id. ¶ 55.) 13

Defendants jointly answered on December 2, 2016.

(See Answer [Doc. No. 10].) In their Answer, Defendants asserted various defenses, including qualified

immunity. (See id. ¶¶ 57-59.)

2. Dueling Expert Reports Produced During Discovery

During discovery, both sides produced expert witness reports, in addition to the depositions and video

evidence described above.

Defendants produced four expert reports. First,

Forensic Video Solutions provided more detailed factual information concerning the distance between various people and objects in the McDonalds’ parking lot,

the limitations of body cameras, and the timing of the

officers’ gunshots. (See Forensic Video Solutions Ex.

Rep.) Second, Dr. Stacy Hail, an emergency medical

physician and medical toxicologist, opined that law

enforcement officers would not be expected to know

the difference between methamphetamine intoxication and acute psychosis due to mental illness, and

that medics could not have assisted Mr. Kong at the

time of his death because Mr. Kong presented “a danger to himself and others” and the scene was not secure. (See Defs.’ Ex. T [Doc. No. 40] at 15 (“Dr. Hail

Although Plaintiff also asserted claims against the City of

Burnsville for “failure to train” and for direct municipal negligence, Plaintiff later agreed to dismiss those claims. (See Mar.

13, 2018 Stipulation for Dismissal [Doc. No. 32].) However,

Plaintiff still seeks to hold the City of Burnsville vicariously liable under the remaining negligence claim. (Id.) For ease of reference, though, the Court will continue to refer to the three officer

Defendants as “Defendants.”

13

51a

Expert Report”).) Third, Steven Wickelgren, the Clinical Director of Minnesota’s CIT Officers’ Association,

opined that, given Mr. Kong’s “uncertain” and “unpredictable” behavior, the officers “acted safely and used

appropriate de-escalation and CIT tactics.” (See Defs.’

Ex. II [Doc. No. 38-18] at ECF 20 (“Wicklgren Expert

Report”).) Fourth, Stuart Robinson, a law enforcement

expert, opined that the officers’ use of deadly force was

proper, and consistent with “accepted law enforcement standards” and “commonly instructed law enforcement training and practice.” (See Defs.’ Ex. OO

[Doc. No. 38-18] at 3 (“Robinson Expert Report”).)

For their part, Plaintiff produced two expert reports. First, D.P. Van Blaricom, a law enforcement expert, opined that the officers “failed to make a reasonable approach to [Mr. Kong], who was demonstrably

experiencing a psychotic episode,” and that it was “objectively unreasonable” to “fatally shoot” Mr. Kong under the circumstances. (See Pl.’s Ex. A [Doc. No. 49-1]

at 13, 17 (“Blaricom Expert Report”).) Second, Dr.

James Alsdurf, a psychologist, opined that, at the time

of his death, Mr. Kong was exhibiting “such disorganized thinking and feeling” that his actions “offered

an objective need for medical attention.” (See Pl.’s Ex.

B [Doc. No. 49-2] at 4 (“Alsdurf Expert Report”).)

3. Defendants Move for Summary Judgment

Following discovery, on April 13, 2018, Defendants

moved for summary judgment on all three of Plaintiff’s claims. Specifically, Defendants contend that, as

a matter of law, “there were no Fourth or Fourteenth

Amendment violations, the Officers are entitled to

qualified immunity,” and, with respect to the negligence claim, “the Defendants are entitled to official

52a

and vicarious official immunity.” (Defs.’ Br. at 3.)

Plaintiff filed an opposition brief on May 4 (see Pl.’s

Br.), and Defendants replied on May 11 (see Defs.’s

Reply Br. [Doc. No. 50]). The Court heard oral argument on May 25. Shortly thereafter, Defendants submitted a letter further elaborating on certain aspects

of the body camera evidence, and Plaintiff responded.

(See Defs.’ June 1, 2018 Letter; Pl.’s June 4, 2018 Letter [Doc. No. 57].)

II. DISCUSSION

Summary judgment is proper if there are no disputed issues of material fact and the moving party is

entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(a). As the Court noted above, in reviewing

Defendant’s motion for summary judgment, the Court

must “not resolve genuine disputes of fact in favor of”

Defendants, and it “must view the evidence in the

light most favorable to” Plaintiff, including by drawing all “reasonable inferences . . . in [Plaintiff’s] favor.”

Tolan, 572 U.S. at 656-57, 660. As the Eighth Circuit

recently re-affirmed, this principle holds equally true

in officer-involved shooting cases captured on video.

See Raines, 883 F.3d at 1074-75 (finding a genuine

factual dispute existed where “the video evidence” was

“inconclusive as to whether or not [the knife-wielding

plaintiff] advanced on the officers in a manner that

posed a threat of serious physical harm to an officer”).

With this standard in mind, the Court addresses

each of Plaintiff’s claims in turn.

A. Plaintiff’s Section 1983 Claims

1. Qualified Immunity

Two of Plaintiff’s claims – their Fourth Amendment claim and their Fourteenth Amendment claim –

53a

arise under 42 U.S.C. § 1983. Section 1983 allows

plaintiffs to sue state and local government officials

who allegedly violate their constitutional rights for

money damages. However, the defense of qualified immunity “protects government officials from incurring

civil liability” under Section 1983 if the official’s “conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person

would have known.” Wealot, 865 F.3d at 1124-25

(quoting Pearson v. Callahan, 555 U.S. 223, 231

(2009)). To determine if qualified immunity applies, a

court must ask two questions: “(1) whether the facts

the plaintiff has presented, when viewed in his favor,

show that the conduct of the officer violated a constitutional right, and (2) whether that constitutional

right was clearly established at the time of the incident such that a reasonable officer would have known

his or her actions were unlawful.” Neal v. Ficcadenti,

895 F.3d 576, 580 (8th Cir. 2018).

Courts have discretion to decide the order in which

to engage these two prongs. See Pearson, 555 U.S. at

236. But under either prong, courts may not resolve

genuine disputes of fact in favor of the party seeking

summary judgment. See Wealot, 865 F.3d at 1124.

2. Excessive Force Under the Fourth

Amendment

a. Whether There Was

Amendment Violation

a

Fourth

1. The Law

The Fourth Amendment of the U.S. Constitution

protects individuals against “unreasonable searches

and seizures.” U.S. Const. amend. IV. Excessive force

54a

claims are “seizures” subject to the reasonableness requirement of the Fourth Amendment. See Graham v.

Connor, 490 U.S. 386, 395 (1989). Because “reasonableness” is an objective standard, “an officer’s evil intentions will not make a Fourth Amendment violation

out of an objectively reasonable use of force; nor will

an officer’s good intentions make an objectively unreasonable use of force constitutional.” Id. Rather, “the

question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id.

Considering whether a police officer acted “objectively reasonably,” then, “requires balancing ‘the facts

and circumstances of each particular case, including

[1] the severity of the crime at issue, [2] whether the

subject posed an immediate threat to the safety of the

officers or to others, and [3] whether the suspect was

actively resisting arrest or attempting to evade arrest

by flight.” Wealot, 865 F.3d at 1125 (citing Graham,

490 U.S. at 396). Further, because “[t]he intrusiveness

of a seizure by means of deadly force is unmatched,”

Tennessee v. Garner, 471 U.S. 1, 9 (1985), “the use of

deadly force against a fleeing suspect who does not

pose a significant and immediate threat of serious injury or death to an officer or others is not permitted,”

Capps v. Olson, 780 F.3d 879, 886 (8th Cir. 2015). This

distinction between using deadly force on a non-compliant subject versus other forms of force makes sense

because, “even when officers are justified in using

some force, they violate suspects’ Fourth Amendment

rights if they use unreasonable amounts of force.” Tatum v. Robinson, 858 F.3d 544, 550 (8th Cir. 2017)

(emphasis added).

55a

However, in reviewing an officer’s actions, a court

must keep in mind that “police officers are often forced

to make split-second judgments – in circumstances

that are tense, uncertain, and rapidly evolving – about

the amount of force that is necessary in a particular

situation.” Church v. Anderson, 898 F.3d 830, 833 (8th

Cir. 2018) (quoting Graham, 490 U.S. at 396-97). And,

as the Court noted above, courts must judge the reasonableness of an officer’s use of force “from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Graham, 490

U.S. at 396.

2. Analysis

The Fourth Amendment “objective reasonableness

analysis must be conducted separately for each search

or seizure that is alleged to be unconstitutional.” Frederick v. Motsinger, 873 F.3d 641, 645-46 (8th Cir.

2017) (quoting Cty. of L.A. v. Mendez, 137 S. Ct. 1539,

1546 (2017)). Plaintiff here only argues that Defendants’ use of deadly force was an unconstitutional seizure. As such, the Court will only consider Defendants’ actions in the seven minutes leading up to Mr.

Kong’s death, such as Defendants’ decision to break

Mr. Kong’s car windows and taser him, insofar as it is

alleged that those actions, and the information Defendants gleaned during that time period, rendered

Defendants’ ultimate decision to shoot and kill Mr.

Kong unreasonable. See Gardner v. Buerger, 83 F.3d

248, 253-54 (8th Cir. 1996) (holding that, although

plaintiffs “must present evidence that the seizure itself, not its prologue, was unreasonable before [they]

can get to a jury with [their] § 1983 claim,” evidence

about the “surrounding circumstances” may be relevant to the “ultimate question” of “whether the use of

deadly force was reasonable”).

56a

On this inquiry, the Court finds that, even taking

into account the “tense” and “uncertain” nature of Defendants’ encounter with Mr. Kong, Church, 898 F.3d

at 833, two genuine disputes of material fact preclude

the Court from deeming the officers’ use of deadly

force objectively reasonable as a matter of law: First,

there is a material dispute as to whether Mr. Kong

had committed a violent felony before the officers shot

him (i.e., by “assaulting” the officers), such that the

officers reasonably would have thought him likely to

hurt others. Second, there is a material dispute as to

whether the fleeing Mr. Kong posed a significant and

immediate threat of serious injury or death to the surrounding public, simply because he was holding a

knife and running in the general direction of highway

car traffic. 14

a. Whether Mr. Kong Committed

A Violent Felony Before the

Shooting

In determining whether deadly force was objectively reasonable, courts may consider whether “[t]he

record conclusively demonstrate[s] that [a decedent]

committed [a] violent felony” before being shot. Wallace v. City of Alexander, 843 F.3d 763, 768 (8th Cir.

14 Plaintiff also disputes whether Defendants provided Mr. Kong

with sufficient warnings before resorting to deadly force. See

Garner, 471 U.S. at 11 (holding that, in deadly force cases, officers must give a suspect “some warning” before shooting, if “feasible”). However, because the Eighth Circuit has interpreted this

warning requirement as being satisfied by an officer merely

pointing a gun at someone holding a knife and commanding them

to drop the knife, and because it is not disputed that Defendants

gave such a warning (repeatedly) here, the Court finds no dispute

of material fact on this issue. See, e.g., Loch v. City of Litchfield,

689 F.3d 96, 967 (8th Cir. 2012).

57a

2016). In Wallace, for instance, a police officer claimed

at her deposition that an individual committed an “aggravated assault” by pointing a gun directly at her,

prior to her use of deadly force. Id. (citing state law

that pointing a gun at someone constituted aggravated assault). However, because the officer had not

said that the decedent pointed a gun directly at her in

an earlier, post-shooting interview, the Eighth Circuit

found that a jury could “credit [the officer’s] first statements over the subsequent versions and conclude that

[the decedent] had not committed a violent felony before he himself was seized with force.” Id.; compare

with Brossart v. Janke, 859 F.3d 616, 625 (8th Cir.

2017) (finding repeated use of a taser reasonable

where “the undisputed summary judgment record”

and a later state court conviction showed that the

plaintiff “made two threats of violence to law enforcement officers,” both of which constituted felonies under state law).

Here, Defendants argue that the video evidence

and the officers’ deposition testimony clearly show

that the officers “had reason to believe Mr. Kong committed multiple felonies before he exited the vehicle.”

(Defs.’ Br. at 23-24.) Specifically, Defendants argue

that Mr. Kong committed “felony terroristic threats”

(Minn. Stat. § 609.713) and “first degree felony assault” (Minn. Stat. § 609.221, subd. 2) shortly before

his death. (Id. at 23.)

With respect to “felony terroristic threats,” Defendants argue that the video shows Mr. Kong “violently lung[ing], bang[ing], and slic[ing] his knife

against the thin glass window that separated [him]

from the officers in a public parking lot with many

people nearby,” which purportedly communicated a

threat to the officers and others. (Id.)

58a

With respect to “first degree felony assault,” and as

described above, Defendants argue that the video

shows Mr. Kong “reach[ing] across the passenger seat

and violently lung[ing] his long knife through the

open window at [Officer] Jacobs.” (Id.) Moreover,

three of the four officers specifically mentioned this

moment in their depositions, and emphasized its importance in their ultimate decision to use deadly force.

(See Mott Dep. at 79 (stating that Mr. Kong “slashed

out and tried to stab Officer Jacobs,” and that, “if he’s

willing to do that toward a police officer it’s reasonable

to say he’s willing to do that to someone else”); Tonne

Dep. at 26 (claiming that deadly force would have

been justified even if Mr. Kong was not running toward people because “he was already basically assaulting us”); Yakovlev Dep. at 36 (asserting that he

did not need to give a command to shoot because “after

[Mr. Kong] swiped at my officer with the knife I felt

that he was a threat of deadly force to our officers and

people around”).

By contrast, Plaintiff argues that, for one, the officers had no reason to believe Mr. Kong was threatening anyone from within the confines of his car. (See

Pl.’s Br. at 3-5.) Rather, Plaintiff argues, the video evidence simply shows Mr. Kong “waving his arms and

moving his body in a continuous and erratic fashion,”

albeit while holding a knife. (Id. at 9.)

Moreover, with respect to the alleged assault on

Officer Jacobs, Plaintiff argues that Mr. Kong “did not

in fact in attempt to strike [Officer] Jacobs,” and that,

at worst, Mr. Kong “react[ed] defensively to the taser

cartridge and/or wire at the moment the taser [was]

deployed for a second time.” (Id. at 10.) Further, Plaintiff contends that, after the alleged assault, the video

59a

shows Defendants “carry[ing] on as they had been previously.” (Id. at 11; see also Blaricom Ex. Rep. ¶ 23(g)

(opining that “reasonable officers responding to and

evaluating this incident would not have concluded

that [Mr. Kong] was threatening them,” in part because Mr. Kong’s reaction to Officer Jacobs’s taser

“was no different than the behavior he had previously

been displaying”).) Plaintiff also notes that, in their

post-shooting BCA interviews, none of the four present officers claimed that Mr. Kong assaulted Officer

Jacobs prior to their use of deadly force. (Id. at 10-11.)

The Court finds that, just as in Wallace, a material

dispute of fact exists as to whether Mr. Kong committed either felony terroristic threats or first-degree felony assault in the moments before his death. See Wallace, 843 F.3d at 768. As relevant here, a person commits felony terroristic threats when they “threaten,

directly or indirectly, to commit any crime of violence

with purpose to terrorize another . . . or in a reckless

disregard of the risk of causing such terror.” Minn.

Stat. § 609.713. “A communication constitutes a

threat if, in context, it would have a reasonable tendency to create apprehension that its originator will

act according to its tenor.” State v. Smith, 825 N.W.2d

131, 135 (Minn. Ct. App. 2012). In Smith, for instance,

the court found that a person committed felony terroristic threats when, in the midst of a heated argument,

the person waved a knife at somebody four feet away

from them and demanded money. Id.

Viewing the record in the light most favorable to

Plaintiff, a reasonable juror could find that Mr. Kong

did not commit felony terroristic threats. Record evidence suggests that, “in context,” Mr. Kong’s erratic

knife waving within the confines of his car did not

evince an intent to “act according to its tenor.” Smith,

60a

825 N.W.2d at 135. As the 9-1-1 caller (calmly) informed the police, Mr. Kong had been waving the

knife around in his car, uninterrupted, for at least 30

minutes before the officers arrived. See supra at 4-5

(noting that Officers Jacob and Mott received this information). And, even after the officers arrived, Mr.

Kong at no point attempted to communicate to, much

less target, anyone outside the car.

Next, a person commits first-degree felony assault

by “using or attempting to use deadly force” against a

police officer performing their duties. Minn. Stat. §

609.221, subd. 2. “Deadly force” means acting with

“the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing,

death or great bodily harm.” Id. § 609.066, subd. 1. An

officer has probable cause to believe someone assaulted them if, for instance, the person stands near

the officer and makes “a quick movement toward [the

officer] with knives in hand while uttering words to

the effect that he wished to engage [the officer] in combat [i.e., “bring it on, f*****”].” State v. Trei, 624

N.W.2d 595, 597-98 (Minn. Ct. App. 2001).

Viewing the record in the light most favorable to

Plaintiff, a jury could find that, unlike the defendant

in Trei, Mr. Kong did not knowingly “attempt to use

deadly force” against Officer Jacobs. Minn. Stat. §

609.221, subd. 2. The video certainly shows Mr. Kong

swinging his knife closer to Officer Jacobs, although

not clearly through the broken car window. (See, e.g.,

Mott Body Camera at 8:03-8:07.) As such, it is not

clear whether Mr. Kong “violently lunged his long

knife through the open window at [Officer] Jacobs”

with any kind of intent to harm, as Defendants claim

(Defs.’ Br. at 23), or whether Mr. Kong was simply

continuing the erratic, unfocused motions he had been

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making since the start of the encounter. (See, e.g.,

Tonne Body Camera at 5:36-5:39; Yakovlev Body

Camera at 3:10-3:12.) Indeed, in the video, one cannot

see the officers reacting to this particular lunge in real

time. (Id.) Moreover, as a general matter, “merely

brandishing or pointing knives is a less significant ‘attempt’ to use force than would be the case with firearms.” State v. Evans, 2005 WL 353988, at *6 (Minn.

Ct. App. 2005).

This dispute over the video evidence is exacerbated

by the fact that, just as in Wallace, and contrary to the

officers’ depositions, in the BCA interviews taken immediately after the shooting none of the four officers

mentioned this moment, much less described it as essential to their decision to shoot Mr. Kong. See Wallace, 843 F.3d at 768; see also Henderson v. City of

Woodbury, --- F.3d ---, 2018 WL 6185947, at *5 (8th

Cir. Nov. 28, 2018) (holding, in a deadly force case,

that a material dispute of fact exists when officers’

“uniform deposition testimony” is contradicted by

even a single officer’s “more or less contemporaneous

testimony”).

For these reasons, a material dispute of fact exists

as to whether Mr. Kong committed a violent felony in

the minutes before his death.

b. Whether Mr. Kong Posed an

Imminent Threat of Death or

Grave Bodily Harm to the Surrounding Public When He

Fled His Vehicle Holding a

Knife

The next, and more important, reasonableness factor for the Court to consider is whether, at the time of

62a

his death, Mr. Kong “pose[d] a significant and immediate threat of serious injury or death” to the surrounding public. Capps, 780 F.3d at 886. In surveying

the (admittedly limited) Eighth Circuit case law involving the use of deadly force against a knife-wielding individual, the salient inquiry for this factor appears to be whether the decedent was advancing toward the officers or nearby bystanders at the time of

the shooting. Compare, e.g., Estate of Morgan v. Cook,

686 F.3d 494, 497 (8th Cir. 2012) (officer reasonably

used deadly force where knife-wielding plaintiff,

standing only twelve feet from the officer, “stood up

and moved toward” the officer) and Hassan v. City of

Minneapolis, 489 F.3d 914, 919 (8th Cir. 2007) (officer

reasonably used deadly force where plaintiff “aggressively brandished a machete and a tire iron while approaching officers in a threatening manner,” and

“moved toward” civilians on the public street “more

than once”) with Ludwig v. Anderson, 54 F.3d 465,

469, 473-74 (8th Cir. 1995) (officer potentially acted

unreasonably when using deadly force against a knifewielding plaintiff running away from officers, where

the nearest bystanders were “across the street” and at

least 150 feet away); see also City of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1775 (2015) (noting, in passing, that officers were justified in using deadly force

against a knife-wielding individual who “kept coming

at the officers until she was only a few feet away from

a cornered [defendant officer]”). Moreover, in considering whether a fleeing person posed a deadly threat

to the surrounding public, a reasonable officer is expected to consider “both the person’s present and prior

conduct,” based on the information available to them.

Wallace, 843 F.3d at 768.

63a

Here, Defendants argue that, at the time of his

death, Mr. Kong “clearly posed an immediate threat

to the physical safety of the officers and bystanders at

the scene,” because (a) Mr. Kong “aggressively brandished a long knife in a public parking lot,” (b) Mr.

Kong “refused numerous orders to drop his knife even

after he was tased,” (c) Mr. Kong “used the long knife

in a threatening manner by violently lunging and

swinging it out the open passenger window at [Officer]

Jacobs,” (d) “bystanders were in the vicinity,” including “in the parking lot, inside and outside the restaurant, on the Frontage Road, and on Highway 13,” and

(e) Mr. Kong was “sprinting” towards civilians, and

Ms. Unterschuetz in particular, when he exited his vehicle. (Defs.’ Br. at 27-28.)

By contrast, Plaintiff argues that, far from posing

a deadly threat to the officers or the public, in the

minutes leading up to his death, Mr. Kong “displayed

many of the signs of a mental health crisis described

in” the City’s CIT policy, did not “attempt[] or

threaten[] to commit a crime of violence,” and appeared “visibly frightened.” (Pl.’s Br. at 28.) Moreover,

when he fled his vehicle, Plaintiff contends that Mr.

Kong did “not run toward any bystanders” and did

“not attempt to turn to face [the] officers.” (Id. at 29.)

Indeed, “[d]uring the entire encounter,” Plaintiff emphasizes, Mr. Kong “never exhibited an intent to harm

any bystanders or officers.” (Id.)

Viewing the facts in the light most favorable to

Plaintiff, as the Court must at this stage, the Court

finds that a genuine dispute of material fact exists as

to whether Mr. Kong “pose[d] a significant and immediate threat of serious injury or death” to the surrounding public at the moment Defendants opened

64a

fire. Capps, 780 F.3d at 886. Most importantly, because the video evidence does not “blatantly contradict” Plaintiff’s narrative that Mr. Kong was running

away from pedestrians and the officers at the time of

his death, the Court must credit that version of

events. Scott, 550 U.S. at 380; Thompson, 894 F.3d at

998-99; see also supra at 15-16 (describing the relevant video evidence). And to the extent Mr. Kong was

approaching moving vehicles on Frontage Road or

Highway 13 with a knife in his hand, such as Ms. Untersheutz’s vehicle, the Court finds that a reasonable

juror might not credit Defendants’ fear that Mr. Kong

was poised to “either carjack a car or stab somebody,”

absent the use of deadly force. (Yakovlev BCA Interview at 20; see also Hr’g Tr. at 12-13.) This is particularly so in light of Mr. Kong’s behavior during the

seven minutes prior to his death, which a reasonable

juror might interpret as scared and confused, rather

than violent and confrontational. (Accord Sandoval

Dep. at 14.) As the Eighth Circuit noted in Wallace,

there is a difference between shooting someone merely

“fleeing arrest” versus shooting someone “engaging in

a ‘hostile and intense’ physical struggle.” Wallace, 843

F.3d at 659 (quoting Parks v. Pomeroy, 387 F.3d 949,

957-58 (8th Cir. 2004)). Moreover, as the Court detailed above, there is a factual dispute as to whether

Mr. Kong assaulted or threatened the police officers

prior to his flight, such that the officers would have

thought Mr. Kong reasonably likely to “try to stab”

someone in his vicinity. (See Mott Dep. at 79.)

The limited Eighth Circuit case law concerning the

use of deadly force against knife-wielding persons further buttresses this conclusion. Indeed, in the case

with the most analogous facts to this one, Ludwig v.

Anderson, the Eighth Circuit reversed a district court

65a

for granting summary judgment to the defendant officers. There, police officers were dispatched to handle

an “emotionally disturbed person” (Ludwig) who was

camped behind a Wendy’s restaurant and concerning

civilians in the area. 54 F.3d at 467. Shortly after the

officers arrived, the officers attempted to arrest Ludwig for engaging in threatening behavior, which

prompted Ludwig to pull out a knife and flee from the

officers. Id. at 468. The officers chased Ludwig to a

nearby street and formed a semicircle around him, all

while pointing their guns at him and ordering him to

drop the knife. Id. Ludwig did not obey the officers,

and continued to “switch[] the knife from hand to

hand,” “as if [he] might throw the knife.” Id. During

this time, Ludwig “did not lunge at any police officer

or run towards any police officer,” although one officer

later stated otherwise at his deposition. Id. at 469.

Then, despite knowing that mace might further perturb an “emotionally disturbed person,” an officer

maced Ludwig, which caused Ludwig to “immediately

turn[] and run towards [the street] where [the officer]

could see pedestrians.” Id. The officers then shot and

killed Ludwig. Id. Although Ludwig was running

away from the officers, and the nearest visible bystander was “across the street approximately 150 feet

from Ludwig,” the officers believed deadly force was

needed to “stop Ludwig from possibly attempting to

get across the street, which he would then be in contact with other citizens that were in the project, or the

apartment building, in that area and he could do

harm.” Id. The present officers “uniformly contend[ed]

that deadly force was justified.” Id. at 473.

On these facts, the District Court found that “it

was objectively reasonable for [the officers] to believe

that Ludwig posed a serious and immediate danger of

66a

physical harm to bystanders in the vicinity.” Id. at

472. The Eighth Circuit, however, reversed, finding

that “material questions of fact remain as to whether

Ludwig’s actions at the time of the shooting, even if

dangerous, threatening, or aggressive, ‘posed a threat

of serious physical harm.’” Id. at 473 (quoting Garner,

471 U.S. at 11-12)). In particular, the Eighth Circuit

noted that Ludwig was emotionally disturbed, and

that the Police Department had a policy which emphasized using lesser force on such persons when they

had not committed a dangerous felony. Id. at 472.

Moreover, the Eighth Circuit added, there were fact

questions over how much of a threat Ludwig posed to

bystanders in the area, based on both Ludwig’s behavior toward the police and the “number and location” of

bystanders. Id. at 473-74. In sum, the Eighth Circuit

ruled that a reasonable juror could find that the officers “fatally shot Ludwig after St. Paul police suspected him initially of being homeless and emotionally

disturbed, and, later, of misdemeanor criminal activity which arguably placed no one in immediate harm.”

Id. at 474.

Likewise here, a reasonable juror could find that,

even with a knife, Mr. Kong did not pose a “threat of

serious physical harm” to either the pedestrians or officers he was running away from, or the moving vehicles he was running in the general direction of. Garner, 471 U.S. at 11-12. In making this determination,

a juror might take into account everything Defendants had observed in their seven-minute interaction

with Mr. Kong, including the fact that Mr. Kong arguably appeared to be enduring a “mental health crisis,”

as defined by the City’s CIT policy, and accordingly

could not fully comprehend the situation at hand. (See

67a

CIT Policy at 1-2 (detailing the “possible signs of mental health issues or crises,” several of which Mr. Kong

displayed here).) 15 Indeed, like the St. Paul Police Department policy at issue in Ludwig, the Burnsville

CIT policy cautions officers to use alternatives to

deadly force when dealing with emotionally disturbed

persons, if possible. Compare supra at 6 with Ludwig,

54 F.3d at 472. “Although these police department

guidelines do not create a constitutional right, they

are relevant to the analysis of constitutionally excessive force.” Ludwig, 54 F.3d at 472 (cleaned up). This

is not to say that Mr. Kong’s emotionally disturbed

state would ipse dixit render Defendants’ decision to

shoot him unreasonable. See Frederick, 873 F.3d at

647 (holding, in the context of using deadly force on a

mentally ill person, that “the relevant inquiry is

whether [the decedent] posed a threat, not what

prompted the threatening conduct”); accord CIT Policy at 2 (“Nothing in this policy shall be construed to

limit an officer’s authority to use reasonable force

when interacting with a person in crisis.”). Rather,

15 At their depositions, the officers uniformly contended that, at

the time, they believed Mr. Kong was on high on methamphetamines, rather than in the midst of a mental health crisis. (See

supra at 8-9; accord Tonne Dep. at 11, 30-31; Yakovlev Dep. at

22-23, 31-32.) However, when it comes to the CIT policy, this may

be a distinction without a difference. As Defendants’ own medical

expert points out, “acute psychosis due to mental illness and

methamphetamine intoxication” “are clinically indistinguishable.” (Dr. Hail Ex. Rep. at 13; accord Wicklgren Ex. Rep. ¶ 23

(noting that police should respond to “psychotic behaviors”

caused by “mental health” issues and/or “drug ingestion” in “the

same” manner).) Moreover, an experienced police dispatcher who

heard the facts from the 9-1-1 call assumed that this might be a

mental health situation. (See Kennedy Dep. at 7, 11-12.) Accordingly, a reasonable juror might find the CIT policy’s guidance relevant here, as it was in Ludwig.

68a

Mr. Kong’s mental condition (and accordant inability

to understand the situation at hand) is simply one fact

among many that may call into question the reasonableness of Defendants’ belief that Mr. Kong posed a

serious physical threat to bystanders when he fled

from his vehicle, such that deadly force (as opposed to

a lesser form of force) was necessary. See Ludwig, 54

F.3d at 472 (noting that “Ludwig’s status as an emotionally disturbed person” did not “entitle[] him to any

additional, clearly established constitutional rights,”

but, rather, would be “relevant to the trial court’s determination of objective reasonableness in the substantive portion of this trial”).

Other Eighth Circuit cases involving the use of

deadly force against knife-wielding persons are readily distinguishable. As the Court noted above, the

common thread among cases where the court has

ruled for the police at summary judgment is that the

decedent moved toward officers or pedestrians at the

time of death, usually in a threatening manner. Consider Hassan v. City of Minneapolis, the case arguably

next closest to this one, after Ludwig. There, the police shot and killed a mentally ill man brandishing a

machete and tire iron following a mid-afternoon 11minute confrontation in “the middle of [a residential]

street” and then in a “shopping mall parking lot.” 489

F.3d at 917. During this confrontation, the man repeatedly “ran at” and slashed at officers and “moved

toward citizens more than once.” Id. at 917-19. The

man also made comments like “that ain’t enough,” after the officers hit him with a taser. Id. at 917. The

officers finally shot the man, following five failed taser

hits, when he “moved toward the officers” while “making slashing motions with his machete” and “hit[ting]

the trunk of the squad car [which the officers were

69a

standing next to] with his machete.” Id. at 918. The

officers in that case had also undergone CIT training.

Id. at 917-18. On these facts, both the District Court

and the Eighth Circuit found that the officers’ use of

deadly force was not unreasonable because, even if the

man was mentally ill, he “posed a significant and immediate threat of death or serious physical injury to

the officers and to the public.” Id. at 919.

Schneider v. City of Minneapolis, No. 03-cv-3510

(JMR/FLN), 2006 WL 1851128 (D. Minn. June 30,

2006), is also instructive. There, the police entered an

apartment on a domestic disturbance call and encountered a “highly disturbed” woman “yell[ing] something

about Satan” and charging toward them with a long

knife. Id. at *1. The officers quickly exited the apartment and held the door shut, as the woman “repeatedly attempted to open the door.” Id. After the woman

stopped pushing on the door, the officers re-entered

the apartment. Id. at *2. Once inside, the officers

again encountered the woman in her bedroom, where

she was holding a knife and calling the police “Nazis

and pigs.” Id. at *3. The woman ignored the officers’

commands that she drop the knife, and instead “advanced to the bedroom doorway,” just feet from the officers. Id. Two officers simultaneously shot and killed

her. Id. On these facts, the Court granted summary

judgment to the defendant officers, finding that, even

though the woman was mentally ill, it was “objectively

reasonable” to use deadly force on “an epithet-screaming woman advancing on them with a knife.” Id. at *67.

Plaintiff’s behavior in this case was certainly

frightening and unpredictable, like the decedents in

Hassan and Schneider. However, when one views the

video evidence in the light most favorable to Plaintiff,

70a

Mr. Kong posed a far less imminent threat of “death

or serious bodily injury” to bystanders (or the officers)

when Defendants opened fire on him. Not only was

Mr. Kong moving away from the officers and pedestrians at the time of his death, but his (arguably) confused and frantic behavior during the seven-minute

lead-up to the shooting falls far closer to the emotionally distraught behavior in Ludwig than the menacing

behavior displayed in Hassan and Schneider.

For these reasons, a genuine dispute of material

fact also exists as to whether Mr. Kong “pose[d] a significant and immediate threat of serious injury or

death” to the surrounding public at the time of the

shooting. Capps, 780 F.3d at 886. 16

b. Whether

Defendants

Clearly Established Law

Violated

1. The Law

Of course, even if material disputes of fact preclude

the Court from deeming Defendants’ use of deadly

16 Although the parties discussed other cases involving mentally

ill knife-wielding plaintiffs in their briefs, those cases are not

helpful to determining whether the officers’ use of deadly force

was objectively reasonable under the Fourth Amendment. Kisela

v. Hughes, 138 S. Ct. 1148 (2018) discussed only the “clearly established” prong of the qualified immunity analysis, and hence

provides no guidance on the reasonableness of an officer’s use of

deadly force. Additionally, Frederick v. Motsinger, cited repeatedly by Defendants, involved the reasonableness of using a taser

on a mentally disturbed person wielding a knife in public, which

is not at issue here. 873 F.3d at 646. Indeed, in Frederick, the

plaintiff conceded that the officers were justified in shooting and

killing the decedent (after the taser proved ineffective) because

the undisputed video evidence showed the decedent “charg[ing]

toward” the police officer “with her knife in a stabbing position.”

Id. at 645. Suffice it to say, that was not the case here.

71a

force objectively reasonable as a matter of law, the

Court must still find in Defendants’ favor if the constitutional right Defendants allegedly violated was

not “clearly established” as of March 17, 2016. Neal,

895 F.3d at 582. This requirement insures that law

enforcement officers have “fair warning” that their

treatment of a person may be unconstitutional at the

time of the incident. Id. (citing Hope v. Pelzer, 536 U.S.

730, 741 (2002)). In recent years, moreover, the Supreme Court has emphasized, repeatedly, that courts

must not “define clearly established law at a high level

of generality.” Kisela, 138 S. Ct. at 1152; White v.

Pauly, 137 S. Ct. 548, 552 (2017); Sheehan, 135 S. Ct.

at 1776. In other words, because “the general rules

[surrounding the use of deadly force] set forth in Garner and Graham do not by themselves create clearly

established law outside an obvious case,” courts

should look for “existing precedent” that “squarely

governs the specific facts at issue.” Kisela, 138 S. Ct.

at 1153 (cleaned up). However, “it is not necessary . .

. that the very action in question has previously been

held unlawful,” so long as precedent evinces “a fair

and clear warning of what the Constitution requires.”

Thompson, 894 F.3d at 999 (cleaned up).

2. Analysis

The Court understands that this is a demanding

standard. 17 However, viewing the facts in the light

17 Indeed, the standard is so demanding that, in recent years,

jurists and academics from across the ideological spectrum have

called the historical and legal underpinnings of this “clearly established” inquiry into question. See, e.g., Ziglar v. Abbasi, 137

S. Ct. 1843, 1871-72 (2017) (Thomas, J., concurring); Zadeh v.

Robinson, 902 F.3d 483, 498-500 (5th Cir. 2018) (Willett, J., concurring); William Baude, Is Qualified Immunity Unlawful?, 106

72a

most favorable to Plaintiff, Eighth Circuit law provided Defendants “a fair and clear warning of what

the Constitution require[d]” when confronted with

this situation. Thompson, 894 F.3d at 999. The

“squarely governing” precedent is Ludwig v. Anderson, which the Court described at some length above.

See supra at 32-34. That case, which has been cited

over 475 times since 1995, established that, without

more, it is not constitutionally reasonable to use

deadly force against a fleeing, emotionally disturbed

person armed with a knife, if that person had not previously attacked anybody, if that person is moving

away from the officers and other nearby pedestrians,

and if that person does not pose an imminent threat

of death or grave bodily harm to others. If anything,

this case may have been clearer cut than Ludwig, in

that Ludwig was running toward a nearby “apartment building” of bystanders, while holding a knife,

whereas Mr. Kong was only running toward moving

vehicles on a busy highway. See Ludwig, 54 F.3d at

469. Suffice it to say, a knife poses a far greater threat

to a pedestrian than a driver. Cf. Reyes v. Bridgewater, 362 Fed. App’x 403, 407 (5th Cir. 2010) (denying qualified immunity and noting that “[t]he immediacy of the risk posed by a man armed with a kitchen

knife at his side is far less than that of a man armed

with a gun” because “a gun can kill instantaneously at

a distance” whereas a man with a knife “would have

had to first either advance toward [another] or at least

raise the knife before he could inflict any harm”).

Cal. L. Rev. 45 (2018); Joanna C. Schwartz, The Case Against

Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018).

73a

Although Defendants point out various factual differences between this case and Ludwig, these differences are either irrelevant or would require the Court

to view the facts in the light most favorable to Defendant. (See Defs.’ Reply Br. at 2 (stating that, unlike

Ludwig, Mr. Kong “sprinted toward people with a

knife,” “repeatedly swung . .. his knife against the windows toward the Officers,” and “lunged his knife out

the broken passenger window toward [Officer] Jacobs”).) As the Court explained above, a reasonable juror could find that Mr. Kong did not assault or

threaten the officers before his flight, and that Mr.

Kong did not pose an imminent threat of death or

grave bodily harm to the surrounding public when he

did flee. See Tolan, 572 U.S. at 657 (“[C]ourts must

take care not to define a case’s ‘context’ in a manner

that imports genuinely disputed factual propositions.”).

All told, because the factual differences between

Ludwig and this case do not “leap from the page,” the

Court declines to grant Defendants qualified immunity at this juncture. Cf. Kisela, 138 S. Ct. at 1154 (finding that law was not clearly established when the “differences between” the purportedly governing precedent “and the case before us leap from the page”) (citing Sheehan, 135 S. Ct. at 1776).

****

The Court acknowledges that Mr. Kong did not respond to Defendants’ repeated commands to drop his

knife, and that he fled his car with a weapon in hand.

See Wealot, 865 F.3d at 1125 (noting that whether a

person “was actively resisting arrest or attempting to

evade arrest by flight” is relevant to the objective reasonableness analysis). The Court also acknowledges

74a

that Defendants were “forced to make [a] split-second

judgment” in “circumstances that [were] tense, uncertain, and rapidly evolving.” Church, 898 F.3d at 833.

However, given both the Eighth Circuit precedent and

the significant disputes of material fact detailed

above, the Court cannot resolve this Fourth Amendment claim as a matter of law. The facts surrounding

Mr. Kong’s death are in dispute, as is evident from the

video evidence. It should be for a jury to decide

whether the officers acted reasonably under the circumstances.

For these reasons, the Court denies Defendants’

summary judgment motion with respect to Plaintiff’s

Fourth Amendment claim.

3. Deliberate Indifference to Mr. Kong’s

Medical Needs Under the Fourteenth

Amendment

1. The Law

The Due Process Clause of the Fourteenth Amendment prohibits state and local government officials

from depriving “any person” of “life, liberty, or property, without due process of law.” U.S. Const. amend.

XIV. This Clause “generally confer[s] no affirmative

right to governmental aid.” DeShaney v. Winnebago

Cty. Dep’t Soc. Servs., 489 U.S. 189, 196 (1989). However, “when the State takes a person into its custody

and holds him there against his will,” the Clause “impos[es] . . . a corresponding duty to assume some responsibility for his safety and general well-being.” Id.

at 199-200; accord Estelle v. Gamble, 429 U.S. 97

(1976) (holding, under the Eighth Amendment, that

the State must provide prisoners with adequate medical care). This is so because, “when the State by the

75a

affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for

himself, and at the same time fails to provide for his

basic human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—it transgresses the

substantive limits on state action set by the Eighth

Amendment and the Due Process Clause.” DeShaney,

489 U.S. at 200.

In line with these general principles, the Eighth

Circuit has held that an “arrestee,” in the police’s custody, “has a right to be free from deliberately indifferent denials of emergency medical care.” Bailey v. Feltmann, 810 F.3d 589, 593 (8th Cir. 2016). 18 “‘Custody’

in this context must be something more than an individual’s reasonable belief that he is not free to leave,

as is the case under the Fourth Amendment.” Gladden

v. Richbourg, 759 F.3d 960, 965 (8th Cir. 2014). “Rather, custody is effected for purposes of the Fourteenth Amendment only when the state ‘so restrains

an individual’s liberty that it renders him unable to

care for himself.’” Id. (quoting DeShaney, 489 U.S. at

200)). This is a “high standard.” Id.; accord Dodd v.

Jones, 623 F.3d 563, 567 (8th Cir. 2010).

18 Admittedly, in this circuit, “it is an open question whether the

standard of the Fourth or the Fourteenth Amendment applies to

medical care claims of arrestees.” Ryan v. Armstrong, 850 F.3d

419, 425 n.2 (8th Cir. 2017) (emphasis added). However, because

Plaintiff did not invoke the Fourth Amendment in their briefing

or complaint, the Court proceeds on the understanding that the

Fourteenth Amendment, and its accordant “custody” standard,

governs this claim. See Carpenter v. Gage, 686 F.3d 644, 650 (8th

Cir. 2012) (“Carpenter cites authorities applying due process

analysis, and he does not invoke the Fourth Amendment, so we

consider his argument on that basis.”); see also Bailey, 810 F.3d

at 593 (declining to resolve this question even when the plaintiff

did invoke the Fourth Amendment).

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If a person is in the police’s custody, that person

may state a Due Process claim if he “demonstrate[s]

that he suffered an objectively serious medical need,

and that the [officers] had actual knowledges of those

needs but deliberately disregarded them.” Carpenter,

686 F.3d at 650. “This showing requires a mental state

akin to criminal recklessness.” Barton v. Taber, 820

F.3d 958, 965 (8th Cir. 2016). For instance, the Eighth

Circuit recently found that two officers were deliberately indifferent to a seriously ill pretrial detainee’s

medical needs “when they allowed him to scream,

howl, and bang against his cell door for eight hours

without attempting to talk to him or seek medical intervention.” Ryan, 850 F.3d at 426.

2. Analysis

Here, Plaintiff argues that Defendants took Mr.

Kong into custody when Officers Jacobs and Tonne

blocked his car in. (Pl.’s Br. at 32-34 (citing U.S. v.

Turley, 161 F.3d 513, 514-15 (8th Cir. 1998).) 19 Then,

Plaintiff continues, Defendants deliberately ignored

Mr. Kong’s obvious need for medical attention when

they broke his car window and tasered him, instead of

waiting for the medics that Officer Jacobs had summoned (and who arrived approximately six minutes

after the shooting, along with additional police officers). (Id. at 34-37.) “Such actions,” Plaintiff contends,

“caused Mr. Kong to exit his vehicle, where he was no

longer amenable to medical evaluation, observation,

and ultimately treatment.” (Id. at 36.)

19 In their briefs, both parties use the phrase “seized” rather than

“taken into custody.” However, because this claim is being analyzed under the Fourteenth Amendment, the Court will use the

latter phrase.

77a

Defendants, by contrast, argue that Mr. Kong was

not taken into custody until his death. (Defs.’ Br. at

37-39) And even if Mr. Kong was in custody during the

seven-minute encounter, Defendants assert, there is

no case law, much less “clearly established” case law,

that would have put officers on notice that they had a

constitutional duty to provide medical care to someone

in Mr. Kong’s position. (Id. at 39.)

The Court finds Defendants’ actions in the lead-up

to Mr. Kong’s death troubling, to say the least. However, the Court declines to consider the merits of

Plaintiff’s Due Process claim because, even viewing

the facts in the light most favorable to Plaintiff, qualified immunity plainly protects the officers from suit.

See Pearson, 555 U.S. at 237 (encouraging courts to

decide qualified immunity defenses on the “clearly established “prong” when “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right”). The Court

cannot find precedent, from this Circuit or any other,

that would have informed the officers that Mr. Kong

was in their custody for Fourteenth Amendment purposes, such that they had an affirmative duty to provide him medical care. See Kisela, 138 S. Ct. at 1153

(instructing courts to look for “existing precedent”

that “squarely governs the specific facts at issue”). Indeed, in its research, the Court cannot find any medical indifference case with facts similar to this one.

In every case involving deliberate indifference to

an arrestee’s medical needs that the Court has found

(or which Plaintiff has cited in their brief), the plaintiff was physically placed under arrest and/or held in

a jail or squad car before the deliberate indifference

claim arose. See, e.g., Barton, 820 F.3d at 964-65; Bailey, 810 F.3d at 593-94; Carpenter, 686 F.3d at 650-51;

78a

accord DeShaney, 489 U.S. at 200 (suggesting that the

right to medical care would only arise during “incarceration, institutionalization, or other similar restraint on personal liberty”). Here, although Officer

Jacobs technically placed Mr. Kong under arrest early

on in the encounter, see supra at 9, Mr. Kong remained in his car until seconds before his death, and

never submitted to Defendants’ physical authority.

Therefore, even if Defendants could see that Mr. Kong

was in need of emergency medical assistance, the law

did not clearly state that the officers had a duty to provide him that assistance until after he was “restrained,” and “unable to care for himself.” DeShaney,

489 U.S. at 200; cf. Carpenter, 686 F.3d at 651 (“Before

the deputies could consider responding to Carpenter’s

medical needs, they had to subdue him and secure the

premises.”).

This situation is somewhat analogous to Dodd v.

Jones. There, police officers responded to a car accident and found an injured driver (who had been driving drunk) lying in the middle of the road. See 623

F.3d at 565. The officers did not move the driver for

fear of further injuring him. Id. Instead, the officers

began investigating the accident scene. Id. Six

minutes later, though, another drunk driver came

along and ran over the injured driver. Id. at 566. After

this happened, the officers arrested both drivers for

drunk driving. Id. at 565-66. The injured driver

brought a Due Process medical indifference claim

against the officers, arguing that he was in their custody from the moment the officers arrived and that, by

not attempting to block traffic or set road flares, the

officers were deliberately indifferent to his medical

needs. Id. However, the Eighth Circuit found it

“doubt[ful]” that the officers “took [the driver] into

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custody and held him against his will so as to trigger

the corresponding duty described in DeShaney.” Id. at

567. “The absence of a clearly established duty for the

officers to protect [the injured driver] under these circumstances,” the Eighth Circuit concluded, “is sufficient grounds to affirm the district court’s grant of

summary judgment in a qualified immunity case.” Id.

Defendants certainly exercised more force to hold

Mr. Kong “against his will” than the officers in Dodd,

and arguably should have paid more careful attention

to Mr. Kong’s mental condition while they had him

surrounded. Id. However, because the officers never

actually took Mr. Kong into custody during their

seven-minute encounter with him, the same “absence

of a clearly established duty” applies here. Id.

The only contrary authorities Plaintiff cites for the

proposition that Defendants should have known that

Mr. Kong was in their custody for Fourteenth Amendment purposes are Fourth Amendment “seizure”

cases. See, e.g., Turley, 161 F.3d at 515 (holding that

“blocking” a person’s “truck with the squad car resulted in a Fourth Amendment seizure”). However, as

the Court noted above, the Eighth Circuit has made

clear that “custody” under the Fourteenth Amendment is a much higher bar than a “seizure” under the

Fourth Amendment, for the policy reasons set forth in

DeShaney. See Gladden, 759 F.3d at 965. Because this

case law is inapposite, the law did not offer Defendants “a fair and clear warning of what the Constitution require[d]” in this situation. Thompson, 894 F.3d

at 999.

For these reasons, the Court grants Defendants

qualified immunity with respect to Plaintiff’s Fourteenth Amendment claim.

80a

B. Negligence

1. The Law

“The basic elements of a negligence claim are (1) a

duty; (2) a breach of that duty; (3) that the breach of

duty be the proximate cause of plaintiff’s injury; and

(4) that plaintiff did in fact suffer an injury.” Hudson

v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn.

1982). However, “[t]he doctrine of official immunity

protects from personal liability a public official

charged with duties that call for the exercise of judgment or discretion unless the official is guilty of a willful or malicious wrong.” Rico v. State, 472 N.W.2d 100,

106-07 (Minn. 1991). Official immunity under Minnesota law is not the same as qualified immunity under

Section 1983. See Elwood v. Rice Cty., 423 N.W.2d

671, 677 (Minn. 1988). Under Minnesota law,

“whether official immunity applies turns on: (1) the

conduct at issue; (2) whether the conduct is discretionary or ministerial . . . ; and (3) if discretionary,

whether the conduct was willful or malicious.” Vassallo ex rel. Brown v. Majeski, 842 N.W.2d 456, 462

(Minn. 2014).

Where it is agreed that the conduct at issue was

discretionary, as is the case here, only the third consideration applies. (See Pl.’s Br. at 42 (conceding that

the Police Department policy in question is discretionary).) “In determining whether an official has committed a malicious wrong,” courts must consider “whether

the official has intentionally committed an act that he

or she had reason to believe is prohibited.” State by

Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571

(Minn. 1994). This is “less of a subjective inquiry into

malice,” and “more of an objective inquiry into the legal reasonableness of an official’s actions.” Id.; accord

81a

Hayek v. City of St. Paul, 488 F.3d 1049, 1056 (8th Cir.

2007). In other words, because “malice” in this context

“does not refer to the question of whether [an] official

was acting with animus,” “an allegation of actual malice is not necessary.” Gleason v. Metro. Transit Operations, 563 N.W.2d 309, 317 & n.3 (Minn. Ct. App.

1997). As such, “[w]hether an officer acted maliciously

is usually a question of fact for the jury.” Kelly v. City

of Minneapolis, 598 N.W.2d 657, 664 n.5 (Minn. 1999);

see, e.g., Anderson v. City of Hopkins, 805 F. Supp. 2d

712, 724-25 (D. Minn. 2011); Mattson v. Becker Cty.,

No. 07-cv-1788 (ADM/RLE), 2008 WL 3582781, at *10

(D. Minn. Aug. 12, 2008); Gleason, 563 N.W.2d at 319;

Soucek v. Banham, 503 N.W.2d 153, 161 (Minn. Ct.

App. 1993); Maras v. City of Brainerd, 502 N.W.2d 69,

78 (Minn. Ct. App. 1993).

If a court determines that an official is not entitled

to official immunity, “vicarious official immunity will

not protect [a municipality that is also named as a defendant].” Brown v. City of Bloomington, 706 N.W.2d

519, 524 (Minn. Ct. App. 2005) (citing Wiederholt v.

City of Minneapolis, 581 N.W.2d 312, 316 (Minn.

1998)).

2. Analysis

Plaintiff’s negligence claim here centers around the

Burnsville Police Department’s CIT Policy. (See supra

at 6 (hereinafter “the Policy”).) Put simply, Plaintiff

contends that (1) Defendants had a duty to adhere to

the Policy, given Mr. Kong’s plainly distressed behavior; (2) Defendants breached that duty by breaking

Mr. Kong’s windows and escalating the situation, in

direct contravention of the “de-escalation” tactics delineated in the Policy; and (3) Defendants’ actions

82a

proximately caused Mr. Kong’s death. (See Pl.’s Br. at

42-43.)

In response, Defendants only raise an official immunity defense. Because both parties agree that the

Policy is discretionary, Defendants primarily contend

that the evidence definitively shows that they did not

“intentionally commit[] an act that [they] had reason

to believe [was] prohibited” by the Policy. City of

Mounds View, 518 N.W.2d at 571. More specifically,

Defendants argue that they did not know Mr. Kong

had any mental health issues at the time of the shooting, and that the Policy accordingly did not apply. (See

Defs.’ Br. at 41.) Defendants also argue that, even if

the Policy did apply, they properly exercised their discretion in an emergency situation, and did not knowingly violate the Policy. (Id. at 41-42; Defs.’ Reply Br.

at 5-6.)

Plaintiff, in turn, contends that, (1) the record

shows that Defendants “believed that Mr. Kong was

experiencing a crisis caused by such drug intoxication,” (2) “[d]espite such knowledge, Defendant[s] disregarded the provisions of the Policy, which clearly

applied to Mr. Kong,” and (3) “[t]he contrast between

the guidance set forth in the Policy and what actually

happened could not be starker, and supports a finding

that Defendants proceeded in the unreasonable manner they did because they willfully disregarded department policy.” (Pl.’s Br. at 42-43.)

Viewing the evidence in the light most favorable to

Plaintiff, the Court finds that material questions of

fact exist as to whether Defendants knowingly, or

“maliciously,” acted in contravention of the Policy.

First, even though the officers uniformly contended at

their depositions that they did not believe Mr. Kong

83a

was experiencing a mental health crisis, a reasonable

juror could infer from the video evidence and the Policy’s plain text (as well as other circumstantial evidence, like Officer Jacobs’s decision to call for a medic

and the dispatcher’s response to that call), that the

Policy applied in this situation. See supra note 15.

Second, a reasonable juror could find that Defendants’ actions contravened the Policy. For example, the

Policy lists ten things officers should do when confronted with someone in a mental health crisis besides

using force, such as “requesting available backup officers and specialized resources,” and “secur[ing] the

scene and clear[ing] the immediate area.” (See CIT

Policy at 2.) A reasonable juror might find that Defendants acted contrary to the Policy by breaking Mr.

Kong’s windows and using a taser on him six minutes

into the encounter, even though Mr. Kong was “contained,” in Officer Jacobs’s words (Jacobs Body Camera at 5:45-5:55), and additional officers were available from neighboring police departments to help clear

the scene of bystanders. See supra at 17 and note 12.

A reasonable juror might also conclude that Defendants’ guiding assumption that “the situation was not

safe so long as Mr. Kong was in his car,” supra note 7

(quoting Mott Dep. at 48-49), ran afoul the Policy’s directive that “passively monitoring the situation may

be the most reasonable response to a mental health

crisis.” (CIT Policy at 3.) This factual dispute is further sharpened by the parties’ expert witnesses.

(Compare Wickelgren Ex. Rep. (opining that Defendants acted in accordance with the Policy and reasonable law enforcement techniques) with Blaricom Ex.

Rep. (opining that Defendants acted in contravention

of the Policy and reasonable law enforcement techniques).)

84a

Third, a reasonable juror could find that Defendants had “reason to believe” that their actions contravened the Policy because they were all familiar with

the Policy at the time of the incident. City of Mounds

View, 518 N.W.2d at 571. Indeed, Officer Mott had received extensive training on the Policy, and was a

member of the Department’s “CIT Team.” See supra

at 6; cf. Maras, 502 N.W.2d at 78 (denying official immunity at summary judgment and noting that an officer’s “intentional” decision to shoot a person who he

deemed a threat, along with the officer’s “aware[ness]

of state and city policy regarding the use of deadly

force,” were “sufficient to let the jury decide whether

his actions constituted a willful or malicious wrong”).

The Eighth Circuit decision, Hayek v. City of St.

Paul, offers a useful comparison to this case. There,

police officers received a call that a mentally disturbed

young man was having a mental breakdown in his

mother’s apartment. See 488 F.3d at 1052. Police officers entered the apartment and found the man,

alone, holding a “Samurai sword in his lap.” Id. at

1053. The officers began talking to the man, telling

him “they were there to help him” and “were his

friends.” Id. After further conversation, the officers

convinced the man to put his weapon down and come

out into the hallway. Id. However, when the officers

attempted to arrest the man, the man resisted and ran

back into the apartment. Id. After the officers unsuccessfully attempted to use a canine to bring the man

down, the man grabbed his sword and began stabbing

an officer. Id. The other officers then shot and killed

the young man. Id.

Plaintiff there brought a negligence claim, and argued that the officers failed to follow their duties un-

85a

der a “Policy on Emotionally Disturbed Persons” similar to the Policy at issue here. Id. at 1056. The Eighth

Circuit rejected this argument at summary judgment,

and found that the officers were entitled to official immunity. “The record clearly shows the officers adequately complied with this policy,” the Eighth Court

held, especially because the officers “attempted to establish a friendly rapport with [the man] and [first]

restrain [him],” before resorting to “deadly force after

[the man] stabbed [an officer] and continued to pursue

[the officer].” Id.

By contrast, the record here does not “clearly show”

that Defendants “adequately complied” with the Policy, up to and including their use of deadly force on the

fleeing Mr. Kong. Id. For instance, in comparison to

the officers’ initially “friendly” approach in Hayek,

there is a fact question here as to whether Defendants

knowingly contravened the Policy’s “de-escalation”

guidance during the few minutes between arriving on

the scene and breaking Mr. Kong’s car windows. Cf.

Hall v. Ramsey Cty., 2016 WL 3659261, at *5 (Minn.

Ct. App. July 11, 2016) (concluding that a detox facility nurse’s “actions were not willful or malicious because they were justified under the detox center’s procedures”).

For these reasons, the Court denies Defendants’

summary judgment motion with respect to Plaintiff’s

negligence claim. 20

20 Because the Court concludes that the individual officer De-

fendants are not entitled to official immunity on Plaintiff’s negligence claim, the City of Burnsville is not entitled to vicarious

official immunity either. See Brown, 706 N.W.2d at 524.

86a

III.

CONCLUSION

Based on the submissions and the entire file and

proceedings herein, IT IS HEREBY ORDERED that

Defendants’ Motion for Summary Judgment [Doc. No.

43] is GRANTED IN PART AND DENIED IN

PART.

A jury trial is set for Monday April 15, 2019 at

10:00 AM in Courtroom 7B (STP). The Court will issue

a final pretrial order forthwith.

Dated: December 14, 2018

s/Susan Richard Nelson

SUSAN RICHARD NELSON

United States District Judge