Henderson v. City of Woodbury et al
ORDER granting 72 Motion for Summary Judgment; dismissing with prejudice 1 Plaintiff's Complaint. (Written Opinion). Signed by Judge Richard H. Kyle on 2/9/17. (KLL)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civ. No. 15-3332 (RHK/FLN)
City of Woodbury, et al.,
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.
Bauer was formerly known (and has been sued) as Natalie Martin.
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.
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
The Inn is a two-story rectangular building. The first-floor rooms exit directly outdoors, and
the second-floor rooms exit onto a narrow balcony that borders the building. A hallway with a
staircase, referred to by the parties as a breezeway, runs through the middle of the building.
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
Room 217 is on the second floor and is the third room west of the breezeway.
The officers were unable to recall the timing of these events. (See e.g., Ofsted Dep. 17 (“no
clue” how long he was on the scene before Murray arrived); id. 20 (unable to recall how long he
had been on the scene prior to decision to call SWAT); Bauer Dep. 18 (“I can’t tell you” how
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
long after seeing the gun Ofsted or Murray arrived); id. 20 (unable to recall how long she was in
the breezeway prior to gunshot).)
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 (“The
whole thing happened so fast.”).)
Only after the officers stopped firing did Bauer realize that Mark was not the man
who had aimed a gun at her from inside Room 217. (Id. 62.) Ofsted called an ambulance
(Ofsted Dep. 44), which took Mark to Regions Hospital in St. Paul, Minnesota, but he
died from his injuries (Hruby Aff. Ex. U). An autopsy revealed that he had suffered
thirteen gunshot wounds prior to his death. (Id.)
The officers testified they believed Mark shot at them as he ran from the room.
(Krech Dep. 56, 64; Bauer Dep. 22; Ofsted Dep. 75.) Krech was worried Mark held a
gun in his right hand (Krech Dep. 66), and Bauer believed he was armed, but did not see
a gun (Bauer Dep. 32–33). Ofsted initially testified he saw Mark with a gun, but later
testified he did not. (Ofsted Dep. 28, 75.) Either way, it is undisputed that Mark was, in
fact, unarmed. An investigation by the Minnesota Bureau of Criminal Apprehension
revealed that Ballinger—not Mark—had fired the shot officers heard as Mark fled from
Room 217. 5 (Hruby Aff. Ex. N.)
On August 15, 2015, Tawana commenced this action under 42 U.S.C. § 1983
against the City of Woodbury, and against Krech, Ofsted, and Bauer in their individual
capacities, 6 alleging that the officers’ use of deadly force was excessive. She also alleged
state-law claims for wrongful death and vicarious liability. Defendants have now moved
for summary judgment. The Motion has been fully briefed and the Court heard argument
on December 22, 2016. The Motion is ripe for disposition.
STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Id. at 322; Whisenhunt v. Sw. Bell Tel., 573
F.3d 565, 568 (8th Cir. 2009). The Court must view the evidence, and the inferences that
Unfortunately, the events in Room 217 did not end with Mark’s attempted escape. Ballinger
was eventually found guilty of attempted second-degree murder and four counts of first-degree
criminal sexual conduct. He is currently serving a thirty-six year prison sentence. E.g., Avery
Crop, Ballinger sentenced in Red Roof Inn shooting, rapes, Stillwater Gazette (Oct. 9, 2013),
The Complaint’s caption named the officers in their individual and official capacities, but
Tawana alleged only that the “defendant officers, in their individual capacity [sic], violated
decedent [Mark]’s Fourth Amendment rights by using excessive force.” (Compl. ¶ 14 (emphasis
added).) As Tawana has not alleged the officers are liable in their official capacities, the Court’s
analysis is limited to her individual-capacity claims.
may be reasonably drawn from it, in the light most favorable to the nonmoving party.
Weitz Co., LLC v. Lloyd’s of London, 574 F.3d 885, 892 (8th Cir. 2009); Carraher v.
Target Corp., 503 F.3d 714, 716 (8th Cir. 2007). The nonmoving party may not rest on
mere allegations or denials, but must show through the presentation of admissible
evidence that specific facts exist creating a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986); Wingate v. Gage Cnty. Sch. Dist., No. 34, 528
F.3d 1074, 1078–79 (8th Cir. 2008).
Tawana alleges the officers violated Mark’s rights under the Fourth Amendment
by employing deadly force. In response, the officers invoke qualified immunity.
“Qualified immunity shields [a] government official from liability . . . unless the
official’s conduct violates a clearly established constitutional . . . right of which a
reasonable person would have known.” LaCross v. City of Duluth, 713 F.3d 1155, 1157
(8th Cir. 2013). In this context, the doctrine “protects officers from the sometimes ‘hazy
border between excessive and acceptable force.’” Saucier v. Katz, 533 U.S. 194, 206
(2001) (internal citations omitted). Indeed, “[o]fficers are not liable for bad guesses in
gray areas; they are liable for transgressing bright lines.” Luckert v. Dodge Cty., 684
F.3d 808, 817 (8th Cir. 2012) (citation omitted). The qualified-immunity analysis
requires the Court to answer two questions: Does the evidence, viewed in the light most
favorable to Tawana, show the officers violated Mark’s constitutional rights? Keil v.
Triveline, 661 F.3d 981, 985 (8th Cir. 2011) (citing Pearson v. Callahan, 555 U.S. 223,
232 (2009)). If so, were those rights clearly established on the date in question? Id.
To determine whether the officers’ use of force violated Mark’s Fourth
Amendment rights, the Court asks whether it was reasonable under the totality of
circumstances known to the officers. Copeland v. Locke, 613 F.3d 875, 881 (8th Cir.
2010) (citations omitted). Factors bearing on this question include “the severity of the
crime at issue, whether [Mark] pose[d] an immediate threat to the safety of the officers or
others, and whether he [wa]s actively resisting arrest or attempting to evade arrest by
flight.” Wertish v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2006) (quoting Graham v.
Connor, 490 U.S. 386, 396 (1989)). The use of deadly force is reasonable if the officers
had probable cause to believe Mark posed a threat of serious physical harm or death.
Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012) (citing Tennessee v. Garner,
471 U.S. 1, 11 (1985)). The incident must be viewed from the “perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” and allow
for the fact that police officers must often make split-second decisions in tense and
rapidly-evolving situations. Id. The inquiry is objective, “without regard to [the
officer’s] underlying intent or motivation.” Graham, 490 U.S. at 397. Each distinct
application of force must be analyzed separately. E.g., Blazek v. City of Iowa City, 761
F.3d 920, 923 (8th Cir. 2014).
Here, the officers used deadly force twice: Krech and Ofsted first fired at Mark
when he burst from Room 217, and they fired again, joined by Bauer, when Mark was
lying on the balcony. In the Court’s view, taking the record in a light most favorable to
Tawana, no jury could conclude either application of force was objectively unreasonable.
The first shooting
Prior to their initial use of force, the officers had limited information. They knew
two males had argued over a knife in the area, which prompted an emergency call. They
also knew a black male in Room 217 possessed a gun, had threatened a uniformed officer
with it, and, even though they had verbally identified themselves as police officers, had
ignored their commands to surrender. Shortly thereafter, Krech and Ofsted stood huddled
together not far from Room 217, 7 in the middle of the night, when the door flew open and
a gunshot rang out. They simultaneously encountered Mark, who ran at them from the
room despite their immediate commands to “get on the ground” and “get down.” (Krech
Dep. 53–54; Ofsted Dep. 27.) Krech and Ofsted testified they believed he possessed a
gun and had shot at them. (Krech Dep. 56, 64; Ofsted Dep. 75.) With him rapidly
closing in and ignoring their commands to halt, the officers opened fire only “seconds”
after he exited the room. In the Court’s view, under these tense and rapidly-evolving
circumstances, it was reasonable for the officers to perceive Mark as a serious threat. 8
Accordingly, their use of deadly force in response was justified, and they are entitled to
qualified immunity. Loch, 689 F.3d at 965; see also Malone v. Hinman, No. 15-3465,
slip op. at 7–8 (8th Cir. Feb. 7, 2017) (affirming grant of qualified immunity to officer
who shot armed suspect without warning after suspect ignored commands and ran toward
The Court has been unable to locate testimony in the record regarding the distance between the
breezeway and Room 217. From photographs, the distance appears to be 20–30 feet. (See
Madia Decl. Ex. 23 at DEF 2066–67.)
Both officers facing these circumstances independently reached the same conclusion, lending
reasonableness to it. See Ngo v. Storlie, Civ. No. 03-3376, 2006 WL 1579873, at *5 (D. Minn.
June 2, 2006) (Kyle, J.), aff’d, 495 F.3d 597 (8th Cir. 2007).
other officers). That the officers’ perceptions turned out to be wrong does not undermine
the reasonableness of their split-second response. Loch, 689 F.3d at 966 (“An act taken
based on a mistaken perception or belief, if objectively reasonable, does not violate the
Fourth Amendment.”); Billingsley v. City of Omaha, 277 F.3d 990, 994–95 (8th Cir.
2002) (even where a suspect is ultimately found unarmed, “a police officer can still
employ deadly force if objectively reasonable”). Were it otherwise, every erroneous
application of deadly force, even if reasonable under the circumstances, would give lie to
a claim under § 1983. That is clearly not the law. See, e.g., Partlow v. Stadler, 774 F.3d
497, 502–03 (8th Cir. 2014).
McLenagan v. Karnes, 27 F.3d 1002 (4th Cir. 1994), is instructive. There, a
police officer sat in a waiting room with two drunk-driving arrestees. One of the
arrestees surreptitiously obtained a gun, causing the officer and the other arrestee,
William McLenagan, to flee the room. The first officer ran past a second officer, John
Karnes, to whom she yelled, “This man has got a gun!” Id. at 1005. Karnes turned, drew
his firearm, and immediately encountered McLenagan, whom he believed to be the armed
arrestee. Id. Karnes shot McLenagan without warning even though McLenagan was
unarmed with his hands cuffed in front of his body. The Fourth Circuit, reversing the
district court, held Karnes was entitled to qualified immunity. Id. at 1006–08.
Here, as in McLenagan, the officers had “a credible warning . . . that an imminent
danger exist[ed].” Id. at 1007. If anything, the threat from inside Room 217, together
with Ballinger’s gunshot, signaled a danger more imminent than in McLenagan.
Additionally, Mark exited Room 217 “in full flight[,] virtually upon [the officers]. For
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all [they] knew, [any] hesitation involved in giving a warning could readily cause such a
warning to be [their] last.” Id. at 1007. And though they saw no weapon prior to firing,
the Constitution does not “require a police officer, in all instances, to actually detect the
presence of an object in a suspect’s hands before firing on him.” Id.; accord, e.g.,
Thompson v. Hubbard, 257 F.3d 896, 901 (8th Cir. 2001). Instead, courts defer to “the
split-second judgment of a trained police officer [even when] that judgment turns out to
be mistaken, particularly where inaction could have resulted in death or serious injury to
the officer and others.” Id. at 1007–08. Thus, like Karnes, the officers here are entitled
to qualified immunity.
Tawana argues that a reasonable officer would have recognized the possibility of a
hostage situation in Room 217, as well as the possibility that a hostage might attempt to
escape. Yet, the record contains no facts from which a reasonable officer should have
intuited that individuals in Room 217 were being held hostage. No one advised
emergency dispatch of a hostage situation, and neither Krech nor Bauer testified they
heard or saw anyone other than a black male in Room 217. (See Krech Dep. 32.)
Moreover, even if this knowledge could be imputed to the officers, they had no reason to
identify Mark as a non-threatening, escaped hostage as opposed to a hostage taker
attempting to escape capture. This type of “Monday morning quarterback[ing]” has no
place in the Fourth Amendment’s objective-reasonableness analysis. Schulz v. Long, 44
F.3d 643, 649 (8th Cir. 1995). The Fourth Amendment “requires only that the seizure be
objectively reasonable,” as judged by the circumstances confronting the officers, and “not
that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight
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vision.” Id. (quoting Cole v. Bone, 993 F.2d 1328, 1334 (8th Cir. 1993)). The law does
not require police officers to be perfect, only reasonable. The subsequent revelation that
Mark was an escaped hostage, without more, does not erode the reasonableness of the
officers’ split-second assessment.
Tawana emphasizes that Mark wore a white shirt while Ballinger wore a dark,
forest green one, arguing this should have alerted the officers that Mark was not a threat.
At best, though, Mark’s white shirt indicated only that he was not Ballinger. The officers
had been advised that two men were fighting over a knife, and, more importantly, they
knew a gun was present in Room 217. The Court perceives no reason why, under these
circumstances, Mark’s shirt color should have intimated to the officers that he posed no
serious threat, particularly when a gunshot accompanied his rapid exit from Room 217.
Contrary to Tawana’s suggestion, the law does not demand omniscience from police
officers. E.g., Sallis v. Pavlak, Civ. No. 09-3614, 2010 WL 3384912, at *5 (D. Minn.
Aug. 25, 2010) (Rosenbaum, J.).
Finally, Tawana asserts that the officers acted unreasonably by failing to afford
Mark an opportunity to comply with their commands and by failing to warn him prior to
using deadly force. Yet, the officers testified they did give him an opportunity to comply.
(Krech Dep. 55; Ofsted Dep. 25.) Regardless, even if they had not, the Court is aware of
no authority requiring officers, reasonably believing they are in imminent danger, to
delay their response pending a suspect’s potential compliance. See Mettler v. Whitledge,
165 F.3d 1197, 1203 (8th Cir. 1999) (“No federal court has held that the Constitution
forbids police officers, after being fired upon by a suspect, from returning fire.”); see also
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McLenagan, 27 F.3d at 1007. Indeed, the Fourth Amendment requires a warning only
where feasible, Garner, 471 U.S. at 11–12, and nothing about Mark’s flight from Room
217 (to the sound of gunfire and not far from officers) suggests a warning was feasible
here. See Loch, 689 F.3d at 967; Estate of Morgan v. Cook, 686 F.3d 494, 497–98 (8th
Cir. 2012) (no specific warning feasible where knife-wielding suspect approached officer
from six to twelve feet away and officer’s other commands put the suspect “on notice . . .
that escalation of the situation would result in the use of a firearm”); see also White v.
Pauly, __U.S.__, 137 S. Ct. 548 (2017) (reversing denial of qualified immunity to officer
who, without warning, shot and killed armed suspect from fifty feet away). Instead, this
“split-second judgment,” made in “tense, uncertain, and rapidly evolving” circumstances,
fits comfortably within the scope of qualified immunity. Graham, 490 U.S. at 397.
The second shooting
To be sure, the officers’ second use of force presents a closer call. The
circumstances indicate that, when the officers opened fire a second time, Mark posed less
of a threat—he had been fired upon, he appeared to comply with officers’ commands to
get on the ground, and he faced an additional, armed officer (Bauer). There is no
indication, however, that the officers had reason to believe their first volley of gunfire
had hit Mark. There is no evidence he showed signs of injury or called out as having
been struck. (See Krech Dep. 140 (“I don’t recall seeing anything that is clearly him
being shot.”).) In addition, the officers testified that he did not fall to the ground but went
down deliberately, indicating he retained control of his body and movements. (Ofsted
Dep. 32.) The officers ordered him to “show me your hands,” “put your arms straight
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up,” and “stop or I’m going to shoot.” (Ofsted Dep. 33, 37–38; Bauer Dep. 37; Krech
Dep. 59, 63.) It is undisputed that he failed to comply with these commands. 9 Instead,
he pushed his chest off of the floor with his left hand and appeared to try to roll onto his
right side with his right hand obscured beneath his torso. Krech testified that she could
not see his right hand, and she was worried it held a gun. (Krech Dep. 66, 92 (“I’m
fearful he’s going to shoot me from underneath his torso.”).) Bauer “remember[ed]
thinking he made it this far, he’s going to kill us.” (Bauer Dep. 33.) After Mark failed to
comply, Krech, Ofsted, and Bauer fired additional rounds until his right hand became
visible. (Id. 39–40; Krech Dep. 61.)
In the Court’s view, this second use of force was reasonable. As discussed above,
the officers reasonably believed that Mark posed a threat when he exited Room 217. He
then failed to comply with additional commands and moved to the intersection of the
balcony and the breezeway, where he was closer to the officers and had eliminated the
cover the officers previously enjoyed around the corner from Room 217. The officers’
testimony that they could not see Mark’s right hand beneath his torso stands unrebutted
and, as such, the Court perceives no intervening facts from which the officers should
have concluded the threat had subsided.
Tawana argues that a bystander’s photograph taken immediately after the shooting contradicts
the officers’ version of events. (Mem. in Opp’n 4, 24–26 (citing Madia Decl. Ex. 101).) The
photo depicts Mark lying face down with his right hand straight out above his head. Tawana
asserts that “[n]one of the officers was [sic] able to explain . . . how [Mark]’s right arm ended up
straight and above his head.” (Id. 26.) She is simply incorrect—all of the officers explained that
they saw Mark eventually bring his right hand out and, once he did so, they stopped firing.
(Bauer Dep. 39–40; Ofsted Dep. 39; Krech Dep. 93.)
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While hindsight reveals that [Mark] was [not] a threat when he was shot,
officers should not be denied qualified immunity in situations where they
are faced with a threat of severe injury or death and must make split-second
decisions, albeit ultimately mistaken decisions, about the amount of force
necessary to subdue such a threat.
Rush v. City of Lansing, 644 F. App’x 415, 423 (6th Cir. 2016); Gardner v. Buerger, 82
F.3d 248, 251 (8th Cir. 1996) (Though “[i]t may appear, in the calm aftermath, that an
officer could have taken a different course, we do not hold the police to such a
demanding standard.”). The Eighth Circuit has consistently “declined to second-guess
whether alternative actions by police officers ‘might conceivably have been available.’”
Estate of Morgan, 686 F.3d at 498 (quoting Cole, 993 F.2d at 1334). Since the officers
had probable cause to believe Mark continued to pose a threat, their second use of deadly
force was reasonable, and qualified immunity bars Tawana’s claim.
Wrongful death and vicarious liability
Tawana has also alleged state-law claims for wrongful death and vicarious
liability. The officers argue that official immunity bars these claims. In Minnesota,
“[t]he official immunity doctrine provides that a public official charged by law with
duties which call for the exercise of his judgment or discretion is not personally liable to
an individual for damages unless he is guilty of a willful or malicious wrong.” Hayek v.
City of St. Paul, 488 F.3d 1049, 1056 (8th Cir. 2007) (citing Elwood v. Cty. of Rice, 423
N.W.2d 671, 677 (Minn. 1988)). The use of deadly force by a police officer is a
discretionary act for which the officers are entitled to official immunity absent a showing
of willfulness or malice. Id. (citing Maras v. City of Brainerd, 502 N.W.2d 69, 77 (Minn.
Ct. App. 1993)). Courts regularly determine that, where the use of force was not
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objectively unreasonable, it was also not willful or malicious. Loch, 689 F.3d at 968;
Hayek, 488 F.3d at 1056 (“Because the officers’ use of deadly force was reasonable, a
reasonable fact-finder could not conclude the officers’ conduct was willful or
malicious.”); Ivory v. City of Minneapolis, Civ. No. 02-4364, 2004 WL 1765460, at *8
(D. Minn. Aug. 4, 2004) (Tunheim, J.). In the Court’s view, the same result obtains here,
as Tawana relies exclusively on the arguments rejected above to support her contention
that the officers acted willfully or maliciously. (See Mem. in Opp’n 52.) The officers are
entitled to official immunity and, accordingly, the City of Woodbury enjoys vicarious
official immunity. Hayek, 488 F.3d at 1057 (citing Dokman v. Cty. of Hennepin, 637
N.W.2d 286, 297 (Minn. Ct. App. 2001)).
The facts of this case are undeniably tragic, and the Court is sympathetic to the
loss Tawana and all of Mark’s family have sustained. But the narrow question before the
Court is whether the officers acted reasonably. In the Court’s view, the evidence points
to only one answer: Yes. Accordingly, and based on all the files, records, and
proceedings herein, IT IS ORDERED that Defendants’ Motion for Summary Judgment
(Doc. No. 72) is GRANTED and Plaintiff’s Complaint (Doc. No. 1) is DISMISSED
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: February 9, 2017
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
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