Opinion
No: 19-1101
07-30-2020
SOK KONG, TRUSTEE FOR NEXT-OF-KIN OF MAP KONG, Decedent, Appellee v. CITY OF BURNSVILLE, et al., Appellants
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 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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; and then quoting Johnson v. Jones , 515 U.S. 304, 320, 115 S.Ct. 2151, 132 L.Ed.2d 238 (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 , 960 F.3d 985, 993 (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 , 960 F.3d at 999 (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-of-deadly-force case), overruled on other grounds by Rivera v. Illinois , 556 U.S. 148, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009) ; Wallace v. City of Alexander , 843 F.3d 763, 769 (8th Cir. 2016) ("Given 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 , 960 F.3d at 991. I do not question the panel's authority to skip this analytical step. Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (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. In my view, we should do what we permissibly can to strengthen confidence in the rule of law and the judicial system.