Koenig v. London

Decision Date22 December 2021
Docket Number#29131
Citation968 N.W.2d 646
Parties John KOENIG and Karen Koenig, Plaintiffs and Appellants, v. Donald G. LONDON, Defendant, and Bonita S. London, Defendant and Appellee.
CourtSouth Dakota Supreme Court

ANDREW T. FICK, DEREK A. NELSEN, ERIC PREHEIM of Fuller, Williamson, Nelson, & Preheim, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.

RICHARD L. TRAVIS, AARON A. FOX of May & Johnson, P.C., Sioux Falls, South Dakota, Attorneys for defendant and appellee.

SALTER, Justice

[¶1.] In an underlying criminal case, Donald London was convicted of aggravated assault against a law enforcement officer for shooting and injuring Sergeant John Koenig of the South Dakota Highway Patrol. Sergeant Koenig and his wife brought negligence and loss of consortium claims against Donald and his mother, Bonnie London, based on events leading up to the shooting. The circuit court granted Bonnie's summary judgment motion after concluding she did not owe a legal duty to control or supervise her adult son and should not be subject to liability for his criminal conduct. The Koenigs appeal, alleging the circuit court erred when it granted the summary judgment motion. We affirm.

Background

[¶2.] Donald London was 42 years old when he shot Sergeant Koenig on January 7, 2015, outside of a rural Kimball farmhouse that belonged to Donald's maternal grandmother. Although Donald was originally from the Kimball area, he moved to Pierre with his mother when his parents divorced. After finishing high school, Donald moved away and lived out of state. He returned in late December 2014 to visit his family and because his grandmother was ill. While she was receiving care in Sioux Falls, Donald stayed alone at her farmhouse. Donald's father, Michael (Mike) London, lived in Kimball, and Bonnie1 lived in Pierre, though she was staying in Sioux Falls caring for her mother at nearly all times relevant to this case.

[¶3.] Following the death of his wife three years earlier, Donald was diagnosed with paranoid schizophrenia

.2 He had previously sought treatment and was prescribed medication to address his mental health condition. The record includes references to Donald being subject to one or more "mental health holds," though it is not clear whether these resulted in involuntary commitment or inpatient care. As a result of his mental illness, Donald's thoughts can become detached from reality and, at times, they have included his belief that his deceased wife is alive and being held captive by various law enforcement or intelligence agencies. The details of Donald's criminal history are not included in the record, but it appears undisputed that he is prohibited from lawfully possessing a firearm as a result of a previous felony conviction.

[¶4.] In the days leading up to the shooting, law enforcement officers had regular and frequent contact with Donald. On the evening of January 5, a local bar employee contacted law enforcement to report Donald's involvement in an altercation at the bar. Donald called Bonnie after he left the bar that night. His truck had broken down in bitter cold temperatures, and Bonnie could tell he was intoxicated and hysterical. Bonnie pleaded with him over the telephone to stay with the truck but could hear him walking away. She contacted Mike and asked him to set out and look for their son. Officers later found Donald and released him to Mike who took him to his grandmother's farmhouse.

[¶5.] At 6:00 a.m. the next day, Bonnie received a telephone call from her daughter, reporting Donald was still experiencing difficulty with his mental health. Unable to travel to Kimball from Sioux Falls due to poor weather conditions, Bonnie called local emergency officials and asked them to send an ambulance to the farmhouse to assist Donald. Local law enforcement officers learned of the request and called Mike who advised that Donald was in the basement of the farmhouse with knives and a pistol.

[¶6.] Officers went to the farmhouse and seized at least three firearms from the main floor. An officer standing at the top of the basement stairwell saw Donald in the basement holding a rifle. The officer drew his service weapon, pointed it at Donald and told him to drop the weapon. Donald dropped the rifle and held up his hands, but then disappeared. He reappeared, but only showed one hand to the officer. Brule County Sheriff Darrell Miller was eventually able to convince Donald to come upstairs peacefully. Officers subsequently recovered several additional firearms from the basement and locked them in a gun safe at the farmhouse, leaving the key with Mike.

[¶7.] As the officers prepared to leave, Chamberlain Chief of Police Joe Hutmacher, with whom Donald had a contentious but unrelated history, arrived at the farmhouse. Chief Hutmacher informed the officers that Donald was prohibited from lawfully possessing firearms because of a previous felony conviction. Prompted by this information, Sheriff Miller contacted agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and notified them that Donald's weapons had been secured in a gun safe. The call did not lead to any imminent response by ATF agents.

[¶8.] Once upstairs, Donald agreed to a mental health hold and took his medication. See SDCL 27A-10-3 (authorizing a "peace officer" to apprehend a mentally ill person "believe[d to] require[ ] emergency intervention" and to "transport the person to an appropriate ... facility"). However, officers ultimately elected not to seek a mental health hold after Donald agreed to have his father take him for an immediate mental health evaluation. Initially, Donald and Mike intended to drive to Sioux Falls, but the plans changed after Bonnie learned it would be quicker to have Donald evaluated in Mitchell. The Mitchell provider did not admit Donald for inpatient treatment and, according to Bonnie, advised Donald to quit taking his antipsychotic medicine and not drink any alcohol until his follow-up appointment six days later. Mike and Donald returned to the farmhouse later that day. Bonnie advised that she would finally be able to travel to Kimball the following day and assist in Donald's care.

[¶9.] The next morning, January 7, Sheriff Miller spoke with Mike several times by telephone about the current state of Donald's mental health. Sheriff Miller claims in an affidavit that Mike's demeanor changed from "calm and controlled" to "startled and excited based on Donald's erratic, irrational, and unpredictable behavior[.]" As related by Sheriff Miller, Mike attributed Donald's agitated state to a phone conversation between Bonnie and Donald that occurred while Bonnie was traveling from Sioux Falls to the farmhouse. The details of the phone conversation between Donald and Bonnie are disputed. However, the Koenigs allege that sometime between Sheriff Miller's first phone call with Mike at 11:11 a.m., and their second conversation, which took place at 11:48 a.m., Bonnie spoke with Donald over the phone and told him that ATF agents were coming to the farmhouse. Bonnie has categorically denied making any such comment, and it is undisputed that ATF agents did not have a plan to visit the farmhouse.3

[¶10.] After the phone call with Bonnie, Mike told Sheriff Miller that Donald had left the farmhouse to retrieve firearms from Mike's house in Kimball. These were apparently the same guns law enforcement officers had locked in the gun safe at the farmhouse the previous day, purportedly moved to town by family members. Mike advised that Donald was threatening to shoot two specific officers with whom he had previously interacted—the officer who had pointed his weapon at Donald the previous day and also Chief Hutmacher. After returning to the farmhouse, Donald spoke with Sheriff Miller over the phone and repeated his threat to shoot the officers. Knowing that Donald may have access to weapons, Sheriff Miller took this threat seriously and prepared to confront Donald at the farmhouse, using deputies from his department along with officers from other agencies, including the Highway Patrol.

[¶11.] In the meantime, Bonnie arrived at the farmhouse from Sioux Falls around 3:00 p.m., shortly before officers began assembling at a nearby location. In Donald's underlying criminal case, she testified that she observed Donald speaking calmly on the phone to Sheriff Miller.4 Bonnie then spoke briefly with Mike and Donald before Mike left to seek medical care at a local clinic. However, he quickly returned and reported seeing a number of law enforcement vehicles near the farmhouse. Bonnie was initially skeptical and suspected, incorrectly, that the vehicles actually belonged to hunters. After driving out of the farmyard to investigate, Bonnie was detained by officers who prevented her from communicating with Donald for the duration of what became a law enforcement standoff with Donald and Mike.

[¶12.] At or around the same time Bonnie was being detained, Sergeant Koenig and other state troopers fanned out around the farmhouse area and established a perimeter. Sergeant Koenig was positioned behind a tin shed when he saw Donald, armed with a rifle, advancing on a position occupied by another trooper. Concerned that his colleague may be unaware of Donald's movement, Sergeant Koenig announced his presence and gave Donald a command to drop his weapon and get on his knees. Donald initially complied, partially. He dropped his rifle, but he walked backwards toward the farmhouse instead of getting on his knees. Donald soon then got into his pickup truck, drove back to reclaim his previously-dropped weapon, and returned to the farmhouse. Once parked, Donald got out of the pickup and took a position behind it.

[¶13.] After realizing law enforcement had surrounded the home, Mike called and accused Sheriff Miller of distracting him and Donald using telephone conversations while officers surreptitiously established the perimeter. Angered by the...

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1 cases
  • Medina v. Botello
    • United States
    • U.S. District Court — District of South Dakota
    • March 30, 2022
    ...finds that such claim fails as a matter of law.Tort liability depends upon the existence and breach of [a] duty ...." Koenig v. London , 968 N.W.2d 646, 653 (S.D. 2021) (citation omitted). "The existence of a duty is a threshold issue in any case of tort liability. Whether a duty exists is ......

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