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Appeals court: Jury should decide lawsuit against Woodbury police who killed man in 2012 hostage encounter

November 29, 2018

Jurors should decide the outcome of a federal lawsuit filed by the mother of an unarmed black 19-year-old man killed by Woodbury police in a 2012 hostage crisis, a federal appellate court ruled Tuesday.

A three-judge panel for the Eighth U.S. Circuit Court of Appeals overturned a Minnesota federal judges dismissal of Tawana Hendersons lawsuit against the city of Woodbury and three police officers who shot and killed Mark E. Henderson Jr., after he fled a motel room that had been taken hostage by another man.

Officers fired an initial round of shots that missed Henderson as he ran toward them. Henderson then dropped facedown on the ground but was soon struck by another 12 of the 17 shots fired by the officers, who later contended that Henderson failed to comply with orders to stay down.

Tawana Henderson sued the city and officers Stacey Krech, Natalie Bauer and Anthony Ofstead two years after a Washington County grand jury cleared the officers of criminal wrongdoing. She argued that the police should have known they were dealing with a hostage situation and that they should have noted the differences in clothing between her son and hostage-taker Demetrius Ballinger, who is serving a 36-year prison sentence for murder and rape charges in connection with the melee.

But Senior U.S. District Judge Richard Kyle dismissed the lawsuit last year after finding that the officers acted on limited information to perceive Henderson as a serious threat when they first fired at him, and that they fired the fatal volley of shots after believing Henderson was refusing to comply with their orders. Kyle acknowledged that the circumstances around the fatal shots were a closer call.

In overturning Kyles decision, Chief Circuit Judge Lavenski Smith wrote Wednesday that Kyle gave no weight to Krechs statements to investigators for the state Bureau of Criminal Apprehension that described Henderson surrendering to police and remaining still before being killed.

The resolution of the conflicting testimony between one officers more or less contemporaneous description and all the officers subsequent unified deposition testimony is best left to a jury, Smith wrote in the courts 11-page opinion.

What a jury can determine what Krech meant in her statement, Smith wrote, will then be material to determining whether the officers use of deadly force was reasonable.

Were grateful that a jury will finally be allowed to hear the evidence and decide this case, said J. Ashwin Madia, an attorney for Henderson, on Wednesday.

Joseph Flynn, an attorney for the officers, said Wednesday that the defense team believed Kyle had it right when he dismissed Hendersons suit last year and that they are now considering whether to request further judicial review in the case.

Stephen Montemayor 612-673-1755 Twitter: @smontemayor

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