Wayne Tauke v. Mark Stine , 120 F.3d 1363 ( 1997 )

United States Court of Appeals
for the eighth circuit
___________
No. 96-3975
___________
Wayne Tauke, Assignee of the *
Estate of Dale R. Tauke, *
*
Appellant, * Appeal from the United
States
* District Court for the
Northern
v. * District of Iowa.
*
Mark Stine; Leo Kennedy, *
Sheriff, Individually and as *
Sheriff of Dubuque County, Iowa;*
Robert W. Elliott; Robert *
Fellin; and Jeff Ritzman, *
*
Appellees, *
*
and *
*
Paul Wiech, Individually and as *
Commissioner of the Iowa *
Department of Public Safety; *
Iowa Department of Public *
Safety; Earl Usher, Individually*
and as Commander of the Iowa *
Highway Safety Patrol; Iowa *
Highway Safety Patrol; and *
Dubuque County, Iowa, *
*
Defendants. *
___________
Submitted: May 19, 1997
Filed: August 1, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, and BOWMAN and MORRIS
SHEPPARD ARNOLD, Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
This is an appeal by Wayne Tauke, the brother of Dale
Tauke,
from orders dismissing his complaint against Sheriff Leo
Kennedy
and granting summary judgment in favor of the remaining
defendants,
four state law enforcement officers. We affirm the lower
court.(1)
I.
This case, brought under 42 U.S.C. § 1983, arises from an
incident at Dale Tauke's farm in Iowa in which various state
and
county law enforcement officers, who were seeking to arrest
Mr. Tauke, became involved in a standoff with him that
ultimately
ended in his being shot to death. Two sheriff's deputies first
arrived at Mr. Tauke's farm after his mother asked for
assistance
because she had become alarmed the previous day by Mr. Tauke's
violent actions, which included shooting at the tires of her
car.
She was concerned about his use of alcohol and feared for his
safety. When the deputies went to talk with him, Mr. Tauke,
armed
with two guns, met them on the porch. He demanded that they
leave
his property, and threatened them with statements such as "Come
in
closer and we'll have this out now." The deputies
(1) The Honorable John A. Jarvey, Chief Magistrate Judge,
United
States District Court for the Northern District of Iowa, acting
by
consent of the parties. See 28 U.S.C. § 636(c)(1); see also
Fed.
R. Civ. P. 73(a).
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thereupon retreated from the house and set up positions on the
perimeter of Mr. Tauke's property.
Although the Dubuque County Sheriff's Department initiated
the
siege on Mr. Tauke's property, after approximately twelve
hours,
Sheriff Leo Kennedy, deciding, he says, that he and his
deputies
needed rest, turned the operation over to the Iowa Highway
Safety
Patrol. At about the same time, an arrest warrant was issued
charging Mr. Tauke with, among other things, assault with a
deadly
weapon and terrorism. The state law enforcement officers set
up
three posts to observe the house and to make an arrest if the
opportunity arose. Repeated attempts to contact Mr. Tauke by
phone
and by loudspeaker were unavailing. He appeared outside his
house
from time to time, always well armed, and performed various
tasks
such as walking around the grounds to check on his livestock.
Approximately five hours after the state law enforcement
officers took control of the siege, Mr. Tauke walked outside
the
house and approached within approximately twenty feet of a
woodpile
behind which Trooper David Shinker had positioned himself.
Trooper
Shinker attempted to arrest Mr. Tauke by revealing his
presence,
identifying himself, and repeatedly ordering Mr. Tauke to drop
his
weapons. Mr. Tauke refused, and instead demanded that Trooper
Shinker leave his property. Mr. Tauke then fired his gun in
the
trooper's direction. A gunfight ensued in which Trooper
Shinker
fired his pistol three times, Mr. Tauke fired his rifle three
more
times, and Trooper McGlaughlin, who was Trooper Shinker's
partner
and was in a backup position, fired his pistol three times.
One of
Mr. Tauke's shots hit Trooper Shinker in the hand, forcing him
to
drop his gun and retreat. (That it was Mr. Tauke's shot, and
not
Trooper McGlaughlin's, that hit Trooper Shinker is not
undisputed,
but we find that it is the only reasonable inference from the
evidence before us, including the affidavits of the troopers
involved and the criminalists' reports.) Trooper Shinker
yelled
back to Trooper McGlaughlin that he had been hit, and the
latter
communicated by radio to the
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other officers at the scene that Trooper Shinker was wounded
and
needed medical attention.
Troopers Stine and Ritzman were positioned with a sniper
rifle
several hundred yards from the gunfight between Mr. Tauke and
Trooper Shinker. Having heard the gunshots and the radio
transmission, and having Mr. Tauke in the sight of his rifle,
Trooper Stine asked Trooper Ritzman to request authorization
from
the command post to shoot Mr. Tauke. Lieutenant Richard Fellin
gave the authorization to shoot, with the approval of Captain
Robert Elliott. Trooper Stine fired approximately five shots
at
Mr. Tauke, who responded by ducking down. Trooper Stine then
saw
Mr. Tauke looking over a woodpile in Trooper Shinker's
direction,
and Trooper Stine fired two or three more shots. Mr. Tauke
dropped
to the ground. Trooper Stine next observed Mr. Tauke crawling
toward some weeds and fired two more shots. Mr. Tauke stood
and
ran toward the cover of a pole barn. Soon thereafter, Trooper
Stine observed Mr. Tauke walking, and still carrying two guns,
and
fired three more times. Mr. Tauke dropped from view. It was
not
until a helicopter was brought in to observe the scene that the
troopers confirmed that Mr. Tauke had been hit. He was dead
when
they found him.
II.
The primary question raised in this case is whether
summary
judgment for the state law enforcement officers was proper,
that
is, whether the force used on Mr. Tauke was objectively
reasonable
under the principles of the Fourth Amendment. As we have
noted,
"[a] seizure-by-shooting is objectively reasonable when 'the
officer [using the force] has probable cause to believe that
the
suspect poses a significant threat of death or serious physical
injury to the officer or others.' " Gardner v. Buerger, 82
F.3d
248, 252 (8th Cir. 1996), quoting Tennessee v. Garner, 471 U.S.
1,
3 (1985). In any particular case, "[w]e must balance ' "the
nature and quality of the intrusion on ... Fourth Amendment
interests" against the countervailing governmental interests.'
"
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Gardner, 82 F.3d at 252, quoting Graham v. Connor, 490 U.S.
386,
396 (1989), itself quoting United States v. Place, 462 U.S.
696,
703 (1983).
We applied these principles recently in Cole v. Bone, 993
F.2d
1328 (8th Cir. 1993). In Bone, 993 F.2d at 1331, a state
police
officer shot and killed a truck driver who was fleeing the
police.
The truck driver had eluded the police for more than fifty
miles,
traveling at high speeds through congested areas, forcing
police
and other cars off the road and showing no signs that he would
give
in to a roadblock or other tactic. Id. A police officer,
traveling ahead of the truck, shot through the police car's
rear
window and struck the truck driver in the forehead. Id.
The important question in the case, we said, was whether
the
police officer acted with objective reasonableness. Id. at
1333.
Noting that the officer "could reasonably have believed that
the
truck would continue to threaten the lives of travellers as it
continued speeding down the crowded interstate highway," we
found
that the officer "had probable cause to believe that the truck
posed an imminent threat of serious physical harm to innocent
motorists as well as to the officers themselves." Id. On this
basis, we reversed a denial of summary judgment below, and
remanded
for the entry of summary judgment in the officer's favor. Id.
at
1334. We conceded that the officer's decision "to use deadly
force
might not have been the most prudent course of action; other
courses of action, such as another stationary roadblock, might
conceivably have been available." Id. But we concluded that
the
Fourth Amendment "requires only that the seizure be objectively
reasonable, not that the officer pursue the most prudent course
of
conduct as judged by 20/20 hindsight vision." Id.
In applying this principle to the fatal shooting of Mr.
Tauke,
we note first that we are not blind to the tragic circumstances
of
the case. Mr. Tauke was gunned down by a high-powered rifle on
his
own property. The invasion of his constitutional interests was
extreme, since "[t]he intrusiveness of a seizure by means of
deadly
force is unmatched." Garner, 471 U.S. at 9. But it is
undisputed
that the state law
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enforcement officers were confronted with a man who refused to
drop
his weapon, despite repeated orders, and who instead fired the
first shot, followed by several more. At the time that the
authorization to shoot was given, moreover, all of the troopers
at
the scene were aware that Trooper Shinker had been wounded, and
that his assailant was still armed and unwilling to surrender.
It
is clear to us that in these circumstances the officer giving
the
authorization to shoot, and the trooper who shot Mr. Tauke,
could
reasonably have believed that this was a situation in which
there
was a significant threat of death or serious physical injury to
those at the scene. As noted before, we do not ask whether the
course of action chosen was the most prudent or the wisest one.
We
ask only whether the decision to use deadly force was
objectively
reasonable, and we hold that it was as a matter of law.
III.
The cause of action against Sheriff Kennedy based on his
turning control of the relevant events over to the state law
enforcement officers can be shortly dealt with. Whether it is
construed as a respondeat superior claim, as the court below
construed it, or as an independent claim for abandoning a duty
imposed by state law, it fails because the other defendants did
not
deprive Mr. Tauke of any constitutional right, and therefore no
claim under § 1983 can lie against anyone for Mr. Tauke's
death.
IV.
We thus affirm the orders of the lower court for the
reasons
indicated.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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