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Henderson v. City of Woodbury

United States District Court, D. Minnesota

February 9, 2017

Tawana Henderson, Plaintiff,
City of Woodbury, et al., Defendants.

          J. Ashwin Madia, Joshua A. Newville, Madia Law LLC, Christopher J. Kuhlman, Kuhlman Law PLLC, Minneapolis, Minnesota, for Plaintiff.

          Joseph E. Flynn, Patrick S. Collins, Robert I. Yount, Vicki A. Hruby, Jardine Logan & O'Brien PLLP, Lake Elmo, Minnesota, for Defendants.




         On August 31, 2012, Defendants Anthony Ofsted, Natalie Bauer, [1] and Stacy Krech, three Woodbury, Minnesota, police officers, responded to an emergency call and ultimately shot and killed Mark Henderson. Tawana Henderson, Mark's mother and trustee for his next of kin, later commenced this action against the officers and the City of Woodbury (“Woodbury”), alleging the use of deadly force was excessive in violation of the Fourth Amendment. Presently before the Court is Defendants' Motion for Summary Judgment. For the reasons that follow, their Motion will be granted.


         The record reveals the following facts, presented in a light most favorable to Tawana. Shortly after midnight on August 31, 2012, Mark and several others rode to the Red Roof Inn (the “Inn”) in Woodbury in a vehicle driven by Demetrius Ballinger. The group planned to attend a party at the Inn, and Ballinger intended to drop the group off and leave. But, upon arrival, Ballinger's car overheated, so he followed the group inside. (Madia Decl Ex. CC at 1610.) Then, for reasons unknown, he drew a handgun, robbed Mark and the others, and held them hostage. One hostage dialed 911, but she was forced to hide her phone from Ballinger, so she was unable to speak to dispatchers. (T.M.S. Dep. 27-29.)

         At 1:09 a.m., Woodbury emergency dispatch received the hostage's “open-line” call. The dispatcher heard garbled male and female voices and an argument over a knife, but no one spoke directly to the dispatcher. Dispatch sent police officers to respond, advising of a

911 open-line 1818 Wooddale Drive. Can hear two males talking about a knife-it sounds like one possibly took it from the other and he's trying to get it back. Map to an uncertain 32 meters from that location. It's possibly going to be the Red Roof.

(Hruby Aff. Ex. T.)

         Bauer and Krech responded to the Inn and began searching for the source of the call.[2] In full police uniforms, they walked around the outside of the building, peered in windows, and listened for a disturbance. They eventually came upon Room 217[3] where, through a gap in the curtains, Krech spotted an “animated black male” wearing a dark shirt and jumping up and down. (Krech Dep. 25-27.) She moved away and signaled to Bauer, who looked in and saw a tall black male wearing a “forest green” shirt standing near the window. (Bauer Dep. 12.) Almost immediately, this man, later identified as Ballinger, pointed a black handgun at Bauer's head. (Id. 13-14; Krech Dep. 28.) She ducked, drew her firearm, and shouted “Gun!” (Bauer Dep. 14-15.) She and Krech then moved away from the window. (Id.) They commanded “police department, come out with your hands up, ” but, lacking cover, halted their commands and retreated to the breezeway, where they radioed for backup. (Krech Dep. 31-33.) At that point, they “didn't know anything about this person[, ] what was going on in the room, ” or how many people were in the room. (Id.)

         Ofsted, who was nearby, heard the call for assistance and responded. (Ofsted Dep. 12-15.) He found Krech and Bauer in the breezeway with their firearms drawn; they advised him that a black male in Room 217 had pointed a handgun at Bauer's head. Sergeant Murray arrived shortly thereafter, and Bauer began briefing him on the situation. (Id. 15-16; Bauer Dep. 18.) The decision to call a SWAT team was made. (Ofsted Dep. 20.)[4]

         Then, without warning, the officers heard a gunshot. Simultaneously, the door to Room 217 opened. (Ofsted Dep. 21; Bauer Dep. 20; Krech Dep. 47.) A black male wearing a white shirt, later identified as Mark, burst from the room and ran directly toward the officers. (Ofsted Dep. 24, 30 (Mark was “sprinting” towards them); Krech Dep. 40 (Mark was “just barreling at [them] . . . running at [them] very determined”).) A witness heard Mark shout “don't” as he left Room 217. (D.M. Dep. 35-37.) Krech and Ofsted immediately began yelling commands: Krech ordered Mark to “get on the ground” several times. (Krech Dep. 53.) Ofsted yelled “drop the gun on the ground, ” and “Police! Get down!” (Ofsted Dep. 26-27.) Both officers testified Mark failed to comply and kept running towards them, and they believed he had just shot at them. (Id. 28, 75; Krech Dep. 54-55, 87.) They opened fire within seconds of his exit from Room 217. (Ofsted Dep. 27; Krech Dep. 56.)

         Mark continued toward the breezeway undeterred by the officers' gunfire. At this point, Bauer, who had been briefing Murray with her back to Krech and Ofsted, turned to find Mark running at her. (Bauer Dep. 23-24.) He reached the breezeway, where he moved “deliberately” to a face-down position perpendicular to the officers. (Id. 29-33; Ofsted Dep. 32.) The officers ordered him to show his hands and yelled additional commands, but he failed to comply. (Ofsted Dep. 35-38.) Instead, he pushed himself up with his left hand, and his right hand was obscured beneath his torso. To the officers, it appeared he was attempting to roll onto his right side. Ofsted directed Mark to “stop or I'm going to shoot, ” but Mark did not stop moving; instead, he moved his right arm with his hand obscured. (Id. 70-71; Krech Dep. 59.) The officers testified that they were concerned his right hand held a weapon (e.g., Krech Dep. 66), so they fired again until Mark made his right hand visible above his head. (Id. 61, 92-93; Ofsted Dep. 37-39.) When asked in her deposition why she shot Mark, Bauer explained:

It was the totality of everything that had happened. It wasn't one single thing . . . I hear a gunshot, a man runs down the hallway-runs at us . . . and he continued as . . . I was yelling ‘show me your hands.' He just continued to turn towards us, and I couldn't see his right hand, and I had already had a gun in my face, and it was all those things put together. That's why I fired . . . I thought he was trying to kill us.

(Bauer Dep. 38.) Krech and Ofsted testified similarly. (E.g., Ofsted Dep. 82-83; Krech Dep. 91-92.) In all, the officers fired seventeen rounds in a short period. (Id. 37 ...

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