Dakota County Attorney James Backstrom Responds to Burnsville Police Lawsuit

Earlier this year, Burnsville police fatally shot a man whose family said was mentally ill. The incident took place in a McDonald's parking lot. Now, Map Kong’s family has filed a lawsuit against the city of Burnsville and the police, claiming the use of lethal force on Kong was excessive and unconstitutional.

In June, a Dakota County Grand Jury concluded that the Burnsville police officers involved were legally justified when they used deadly force in the shooting death of Kong.

Following last week's news release from Meshbesher & Associates, who are representing Kong's family in officer-involved shooting lawsuit, Dakota County Attorney James Backstrom responded to the attorneys' "criticism of the use of a grand jury in cases of this nature."

"I believe it is important for the public to know that there was nothing improper done in connection with the use of a grand jury in this case, which has been the standard practice of this office in cases of this nature since 1990," Backstrom said in a statement.

There was no conflict of interest for the Dakota County Attorney’s office to handle the presentation of this case to the Grand Jury. None of the officers involved had any ongoing or prior significant direct involvement with this office, and no involvement at all with the County Attorney. When cases of this nature are reviewed by a grand jury, the members of the grand jury are provided, through witnesses, with a fair and unbiased presentation of the relevant evidence gathered in the investigation of the case (which would include relevant video footage from officer body cameras, squad cars or other sources). Instructions on the law and role of the grand jury are given by the County Attorney. No recommendations are made by the County Attorney’s Office as to what conclusions the grand jury should reach in a given case.

Details of the case

At approximately 6:15 a.m. on Thursday, March 17, the Burnsville Police Department responded to a report of suspicious activity in the McDonald’s parking lot at the corner of Highway 13 and Washburn Avenue in Burnsville, according to a news release. Five officers responded to the scene and discovered a single individual, later identified as Kong, 38, wildly brandishing a knife while in the driver's seat of a car.

Video caught of the incident by police body cameras shows officers breaking two windows of the car and yelling at Kong to "drop the knife!" When Kong failed to comply, officers attempted to Tase him. Kong eventually fled the vehicle. Police then shot Kong several times, killing him.

The autopsy revealed Kong died from multiple gunshot wounds. Toxicology tests performed on Kong’s urine and blood draw taken during the autopsy tested positive for amphetamine and methamphetamine, according to a news release from Dakota County.

Under Minnesota law, the use of deadly force by an officer is justified in the line of duty when necessary:

1. to protect the peace officer or another person from apparent death or great bodily harm;
2. to effect the arrest or capture, or prevent the escape, of a person whom the peace officer knows or has reasonable grounds to believe has committed or attempted to commit a felony involving the use or threatened use of deadly force; or
3. to effect the arrest or capture, or prevent the escape, of a person whom the officer knows or has reasonable grounds to believe has committed or attempted to commit a felony if the officer reasonably believes that the person will cause death or great bodily harm if the person’s apprehension is delayed.

According to the Star Tribune, Kong's family is now claiming that Burnsville police officers Taylor Jacobs, John Mott and Maksim Yakovlev were negligent and deliberately indifferent to Kong’s medical needs as he swung a knife in his car in mental distress. They also claim the city of Burnsville was negligent and indifferent in failing to train officers to respond to a mental health crisis.

One officer is heard in the bodycam video saying, "We can bust the window and Tase him if you want."

"If he gets out, I’ll go lethal," another says.

According to the suit, Kong was born in Cambodia. His family fled the country after its village was bombed, which played a role in his mental health issues, according to the complaint. The suit also claims Kong was suffering a mental breakdown before he was shot. Minnesota Public Radio reported that the suit seeks more than $1 million in damages.

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