Tawana Henderson, as Trustee for the Next-of-Kin of Mark Eric Henderson Plaintiff- Appellant
City of Woodbury; Officer Anthony Ofstead; Officer Natalie Martin; Officer Stacey Krech, in their individual and official capacities Defendants - Appellees
Submitted: February 14, 2018
from United States District Court for the District of
Minnesota - Minneapolis
SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.
August 31, 2012, Mark Henderson ("Mark") attended a
party at a hotel room in Woodbury, Minnesota. The gathering
turned into a hostage situation, and Mark was shot multiple
times by Woodbury Police Department Officers Stacey Krech,
Natalie Bauer,  and Anthony Ofstead after he attempted to
escape the ordeal. Mark's mother, Tawana Henderson
("Tawana"), as trustee for Mark's next-of-kin,
filed a lawsuit under 42 U.S.C. § 1983 against the City
of Woodbury ("City") and Officers Krech, Bauer, and
Ofstead. The district court concluded that the officers were
entitled to qualified immunity and granted them and the City
summary judgment. Tawana now appeals. We reverse.
Henderson, a 19-year-old black man, was attending a party
held in Room 217 of a Red Roof Inn in Woodbury, Minnesota.
Without warning, one of the guests, another young black male
named Demetrius Ballinger, pulled a gun. Ballinger robbed the
other guests, including Mark, and held them hostage. One of
the young women at the party called 911 and then hid her
phone. Though the caller was unable to speak with the
operator, the operator kept the line open and listened to the
audible audio from the motel room through the phone.
on this audio, the 911 operator discerned an apparent
confrontation between someone with a gun and another person
with a knife. The person with the gun (Ballinger) demanded
that the person with the knife (Mark) give it up. The
dispatcher alerted police and reported "hear[ing] two
males talking about a knife-it sounds like one possibly took
it from the other and he's trying to get it back" to
police. Henderson v. City of Woodbury, 233 F.Supp.3d
723, 726 (D. Minn. 2017) (citation omitted).
determined that the call originated from the Red Roof Inn.
But, dispatch was uncertain as to which guest room. Upon
arrival, officers tried to find the room through guest
records and by driving around the hotel. When this proved
unsuccessful, the officers began to canvass the building by
foot. Walking in the lead was Officer Krech, followed by
Officers Bauer and Ryan Schroeder. Officer Krech came across
Room 217, and through a gap between the window and curtain,
she saw an animated black male in a dark shirt (Ballinger).
Officer Krech then approached the door to see if she could
hear anything. Officer Bauer took a position near the window.
Ballinger then approached the window, moved the curtain to
the side, and pointed his gun at Officer Bauer's head.
Officer Bauer yelled "Gun!," and the officers
retreated. Id. (citation omitted). By this point,
Officers Bauer and Krech had drawn their guns.
officers called for backup and secured the area. They were
positioned at a breezeway area at the top of the stairs to
the second floor. Officer Ofstead and Sergeant Christopher
Murray were the first arriving backup officers. Together, the
officers discussed the situation and decided to call a SWAT
finding an opportunity to escape, Mark opened the door to
Room 217 and ran down the hallway. Ballinger, the hostage
taker, fired a shot at Mark. The officers heard this gunshot,
but they did not see who fired it or where it
landed. Mark continued running down the hallway
toward the breezeway, in the direction of the officers. He
was not armed. According to the officers, they ordered Mark
to stop, relinquish the weapon they believed he possessed,
and get on the ground. As Mark neared them, Officers Ofstead
and Krech, who at this point were positioned closest to Mark,
fired at him but missed.
hearing the shots, Mark stopped and got facedown in the
hallway. Then, according to the officers, Mark "pushed
himself up with his left hand, and his right hand was
obscured beneath his torso." Id. at 727. The
officers contend that Mark raised up as they ordered him
multiple times to show his hands and stay down. They also
allege that he lifted his torso and moved his right arm,
which had been obscured. Interpreting this as threatening,
Officers Krech, Bauer, and Ofstead fired a combined 17
rounds, 12 of which struck Mark. He died shortly thereafter.
brought this § 1983 action against the City and Officers
Krech, Bauer, and Ofstead. The officers were sued in both
their individual and official capacities. The suit alleged
that the officers violated Mark's right under the Fourth
Amendment to be free of excessive force in the course of an
arrest and were liable for wrongful death under Minn. Stat.
§ 573.02. It also alleged vicarious liability against
the City under Minnesota state law.
discovery, the defendants moved for summary judgment. They
argued that the totality of the circumstances, especially
Mark's perceived non-compliance, created a reasonable
belief that Mark posed a serious threat, rendering their use
of deadly force objectively reasonable and entitling them to
qualified immunity. Tawana argued in opposition that there
were multiple genuine issues of material fact that, if
resolved in her favor, supported a finding that the officers
contended that the officers should have known that they were
dealing with a hostage situation, that the difference between
Mark's and Ballinger's shirt colors should have made
clear that Mark was not the hostage taker, and that the
officers shot Mark without giving him enough time to comply
with their potentially conflicting orders. Crucially, Tawana
also asserted that a statement that Officer Krech made to the
Minnesota Bureau of Crime Apprehension (BCA) shortly after
the incident suggested that the officers had shot Mark
despite his compliance.
had conducted interviews with the officers on the scene the
day of the shooting. Officer Krech stated the following