A federal appeals court has ruled in favor of three Burnsville police officers and the city in the 2016 fatal shooting of a man outside the McDonald’s restaurant on West Highway 13.
In a ruling filed May 29, the 8th Circuit Court of Appeals said a U.S. District Court ruling in Minnesota erred in not granting summary judgment to the officers and the city.
They were seeking immunity from a civil suit brought by the family of 38-year-old Map Kong, who was shot 15 times in the back and side on March 17, 2016, as he fled his car brandishing a large knife.
The shots were fired by officers Maksim Yakovlev, John Mott and Taylor Jacobs.
The civil suit alleged the officers used excessive force in violation of federal law and negligently failed to follow Burnsville Police Department guidelines in violation of state law.
The suit followed the officers’ 2016 exoneration by a Dakota County grand jury, which concluded the offices lawfully used deadly force against Kong.
The officers shot Kong shortly after 6:15 a.m. after being called to the restaurant, where Kong had gone through the drive-thru at 2:30 a.m. and remained in his car in the parking lot. Police and witnesses observed Kong waving a large, dagger-style knife and bouncing around erratically in the driver’s seat of the car, according to evidence presented to the grand jury.
Officers repeatedly ordered Kong to drop the knife and broke the passenger-side window to fire two Taser shots at him. At that point Kong flung open the door and bolted toward Highway 13, knife in hand. Police fired 23 times as he fled, hitting Kong 15 times.
Interviewed by Minnesota Bureau of Criminal Apprehension investigators, each officer said he feared Kong posed a lethal threat, whether to police, motorists on the highway or nearby frontage road or restaurant customers. The incident was captured on four officer body cameras.
The suit alleged the officers were deliberately indifferent to the medical needs of Kong, who was suffering a mental health crisis. He was also found to have amphetamine and methamphetamine in his system.
The appeals court ruled 2-1 the officers were entitled to qualified immunity and the city to vicarious immunity, which were denied by the lower court.
Citing case law, the appeals court majority wrote that “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.”
Though Kong appeared to be high on methamphetamine, “the cases establish that mental illness or intoxication does not reduce the immediate and significant threat a suspect poses,” wrote appeals judges James B. Loken and William Duane Benton.
The family noted that Burnsville police training and department policy advise that “taking no action or passively monitoring the situation may be the most reasonable response to a mental health crisis,” the judges noted.
But acting contrary to training doesn’t negate qualified immunity by “reasonable” officers who believe their conduct was justified, they wrote.
“At any rate,” the judges wrote, “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 crisis.”
Judge Jane L. Kelly dissented, writing, in part, that “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 nonconfrontational 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.”