United States District Court, D. Minnesota
Ashwin Madia, Joshua A. Newville, Madia Law LLC, Christopher
J. Kuhlman, Kuhlman Law PLLC, Minneapolis, Minnesota, for
E. Flynn, Patrick S. Collins, Robert I. Yount, Vicki A.
Hruby, Jardine Logan & O'Brien PLLP, Lake Elmo,
Minnesota, for Defendants.
MEMORANDUM OPINION AND ORDER
RICHARD H. KYLE UNITED STATES DISTRICT JUDGE
August 31, 2012, Defendants Anthony Ofsted, Natalie Bauer,
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
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.)
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.)
and Krech responded to the Inn and began searching for the
source of the call. 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
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.)
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.)
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.)
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 ...