Kong v. City of Burnsville

• Decision Date: 29 May 2020
• Docket Number: No. 19-1101,19-1101
• Parties: 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
• Court: U.S. Court of Appeals — Eighth Circuit

960 F.3d 985

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

No. 19-1101

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2020

Filed: May 29, 2020

Counsel who presented argument on behalf of the appellants and appeared on the brief was Patrick S. Collins, of Lake Elmo, MN. The following attorney(s) appeared on the appellant brief; Joseph E. Flynn, of Lake Elmo, MN.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Richard E. Student, of Minneapolis, MN. The following attorney(s) appeared on the appellee brief; Steven J. Meshbesher, of Minneapolis, MN.

Before LOKEN, BENTON, and KELLY, Circuit Judges.

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—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, 134 S.Ct. 1861, 188 L.Ed.2d 895 (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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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 *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.

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 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, 129 S.Ct. 808, 172 L.Ed.2d 565 (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, 105 S.Ct. 2806, 86 L.Ed.2d 411 (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).

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, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (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, 127 S.Ct. 1769. 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, 105 S.Ct. 1694, 85 L.Ed.2d 1 (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 , ––– U.S. ––––, 138 S. Ct. 1148, 1152, 200 L.Ed.2d 449 (2018), quoting Graham v. Connor , 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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...