960 F.3d 985
8th Cir.2020Background:
- Early morning March 17, 2016: officers responded to a McDonald’s report of a man in a parked car "waving a knife" and acting erratically; body cameras recorded the encounter.
- Officers broke windows and tased Map Kong after repeated verbal commands; Kong exited the car, ran across the parking lot holding a large knife, and ran toward the frontage road/highway.
- Officers Yakovlev, Mott, and Jacobs fired at Kong within seconds, discharging at least 23 rounds; 15 struck and killed him; nearby vehicles and a customer’s car were ~30 feet away.
- Trustee (Kong’s next-of-kin) sued under 42 U.S.C. § 1983 (excessive force) and Minnesota negligence (failure to follow crisis-intervention policy); district court denied summary judgment for officers and city.
- The Eighth Circuit majority reversed: held officers entitled to qualified immunity on the § 1983 claim and official/vicarious immunity on the state-law negligence claim; Judge Kelly dissented.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Qualified immunity for excessive force (Fourth Amendment) | Trustee: shooting fleeing, mentally disturbed Kong who did not pose an immediate significant threat violated Fourth Amendment | Officers: Kong wielded a large knife, ignored commands, ran through an occupied lot toward traffic/bystanders; split-second threat justified deadly force | Majority: Reversed denial — officers entitled to qualified immunity (no clearly established law showing violation) |
| Whether the right was clearly established (pre-March 17, 2016 law) | Trustee: Ludwig and other precedents gave fair warning that shooting a fleeing, mentally ill person with a knife was unlawful | Officers: Supreme Court and circuit precedent (including Kisela and cases upholding shootings of knife/machete suspects) left the law open; officers lacked fair, specific warning | Held: Law was not clearly established at the time; qualified immunity applies |
| Official immunity (Minnesota) for discretionary use of force | Trustee: Officers willfully disregarded department crisis-intervention policy and thus are not entitled to immunity | Officers/City: conduct was discretionary, actions tracked policy where possible and policy allows reasonable force; no willful/malicious violation shown | Held: Officers entitled to official immunity; City entitled to vicarious official immunity |
Key Cases Cited
- Tennessee v. Garner, 471 U.S. 1 (1985) (deadly force to prevent escape must be reasonable; requires immediate threat)
- Graham v. Connor, 490 U.S. 386 (1989) (excessive-force reasonableness test)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity two-step framework)
- Kisela v. Hughes, 138 S. Ct. 1148 (2018) (use-of-force precedent requiring specificity; shooting knife-holder not clearly unreasonable pre-2016)
- Ludwig v. Anderson, 54 F.3d 465 (8th Cir. 1995) (Eighth Circuit decision denying immunity where fleeing knife-wielding, emotionally disturbed person was shot)
- Estate of Morgan v. Cook, 686 F.3d 494 (8th Cir. 2012) (knife-wielding suspect can pose immediate, significant threat absent a violent felony)
- Hassan v. City of Minneapolis, 489 F.3d 914 (8th Cir. 2007) (upholding shooting where suspect with machete endangered bystanders)
- Hayek v. City of St. Paul, 488 F.3d 1049 (8th Cir. 2007) (qualified immunity where mentally ill suspect attacked with samurai sword)