VERMILLION — A civil case appeal in the 2015 Kimball armed standoff and shooting of a South Dakota Highway Patrol trooper was heard by the South Dakota Supreme Court on Monday in oral arguments.
In September 2019, a circuit court judge granted summary judgement to Bonnie London, the mother of Donald London in a civil action brought forward by former Trooper John Koenig and his wife Karen. Donald London, who shot John Koenig in the shoulder blade in the standoff on Jan. 7, 2015, with law enforcement at a Kimball area farmhouse, pleaded guilty to mentally ill to three counts of aggravated assault on a law enforcement officer, receiving a sentence of 30 years in prison. Donald London, now age 47, fired 146 rounds of ammunition at law enforcement in the standoff.
In the civil case, the Koenigs asserted a general negligence claim against Bonnie London and alleged that she negligently supervised Donald London and entrusted him with firearms. Specifically, they also allege that she breached a legal duty by falsely telling Donald hours before the standoff began that the Bureau of Alcohol, Tobacco and Firearms was coming to the farmhouse, and caused Donald London to spiral out of control.
The case was heard Monday morning at the Knutson School of Law at the University of South Dakota, as the Supreme Court opened its October term.
The circuit court found that Bonnie London did not owe a legal duty to the Koenigs because she lacked sufficient control over her emancipated adult son and because his act of shooting John Koenig was not foreseeable.
ADVERTISEMENT
In the Koenigs’ appeal, the case centers on whether the circuit court erred when it added a “duty to prevent a third-party’s misconduct” as an element to John Koenig’s negligence claim against Bonnie London and whether the court erred in determining that Donald London’s aggressive behavior against law enforcement was not foreseeable. The circuit court had also dismissed Koenig’s negligent supervision claim against Bonnie London.
Much of the discussion on Monday centered around the first two appeal issues, and particularly existing case law regarding whether a duty exists to protect another person against intentional, unlawful acts of a third party. That has a two-part test, the attorneys argued, that there must be control and/or a relationship, and the injurious conduct of the third party must be foreseeable.
Koenig attorney Andrew Fick, of Sioux Falls, argued that Bonnie London’s behavior jump-started Donald London to attack law enforcement, with her actions and her son’s conduct combining to cause harm.
He made the comparison to a 1981 case in Colorado court involving a person who voluntarily jump-started an automobile for an intoxicated person who were then held liable to a third party for injuries they sustained in a collision occurring shortly thereafter between their vehicle and the inebriated person's car which was being operated in a reckless manner.
“Bonnie’s affirmative acts included telling Donald that the ATF was coming when she knew that wasn’t true,” he said. “And that did set him off. … There was an escalating pattern of violence and Donald’s violence in the case was foreseeable because she knew it would set him off.”
Aaron Fox, the attorney for Bonnie London, said the state’s two-part test of control within duty remains a worthy standard.
“The appellants do not dispute the validity of this test,” Fox said. “They’re asking for an exception of the two part test and to permit this exception would bring unreliable and unjust results. … What we’re focusing on is Bonnie’s conduct and that’s not what the focus of this case is. It should be the unlawful conduct of the third party.”
Justice Patricia Devaney asked about the ATF comment and whether it was admitted in court initially or if it was double hearsay. Fox said that it came about when Bonnie called Donald and Michael London — Bonnie’s ex-husband and Donald’s father — was in the room. Michael London had claimed to hear Bonnie tell Donald the ATF was coming, and he later reported it to the Brule County Sheriff Darrell Miller. According to the Koenig’s brief filed in the case, Miller later confirmed with the ATF that they were not coming to the farmhouse. (Michael London died 10 months after the standoff.)
ADVERTISEMENT
Fox also said that Donald London made the decision to go get the guns after they had already been moved off his home property and shoot law enforcement.
“Bonnie didn’t make the decision. Law enforcement had Donald twice, and let him go twice, releasing him to his father. … Donald is responsible for his actions, not Bonnie.”
