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Dooley v. Tharp

United States Court of Appeals, Eighth Circuit

May 15, 2017

Sharon C. Dooley, as the Administrator of the Estate of the Deceased R. Michael Dooley; Tristan Brooke Engler; Kara E. Krapfl; Nathaniel J. Dooley; Alex M. Dooley; Joseph D. Dooley Plaintiffs - Appellants
v.
Jon Tharp, in his Individual Capacity Defendant-Appellee

          Submitted: April 12, 2016

         Appeal from United States District Court for the Southern District of Iowa - Davenport

          Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.

          WOLLMAN, Circuit Judge.

         On October 16, 2012, R. Michael Dooley was shot and killed by Van Buren County, Iowa, Deputy Sheriff Jon Tharp. The administrator of Dooley's estate and Dooley's five children filed suit against Tharp, alleging an excessive-force claim under 42 U.S.C. § 1983 and related tort claims under Iowa law. The district court[1]granted Tharp's motion for summary judgment based on qualified immunity and Iowa law. We affirm.

         At approximately 11:00 on that clear October morning, a 911 dispatcher in Keosauqua, Iowa, received a call reporting that a man dressed in a military uniform and armed with a rifle was "flipping off" passing motorists as he walked west on Highway 2 toward Cantril, Iowa. A second caller reported the same information and noted that the man may have exited a car that was parked near the highway. According to the second caller, an upside down American flag hung from the parked car's open trunk.

         Deputy sheriffs Jon Tharp and Bradley Hudson were on duty in the Van Buren County Sheriff's Office when the calls came in. Hudson, who was chief deputy sheriff and acting sheriff that day, decided that he and Tharp would together respond to the calls, using Hudson's patrol vehicle, a 2011 Ford F150 SuperCrew pickup truck. The vehicle displayed law enforcement markings on its body, and the top of the cab was equipped with a light bar that flashed red, white, and blue lights when activated. The truck also had a microphone installed in the headliner above the passenger seat and a camera mounted in the center of the dashboard that pointed outward. The audio/video system automatically began recording whenever the truck's emergency lights were activated.

         Both Hudson and Tharp were wearing uniforms and bulletproof vests. They had been assigned AR-15 .223-caliber rifles and 12-gauge shotguns, which they carried in their separately assigned patrol vehicles. While entering his patrol vehicle, Hudson removed his rifle from its locked mount and placed it between his legs, where he could easily reach it while driving. After retrieving his rifle and shotgun, Tharp sat in the front passenger seat of Hudson's vehicle. Hudson activated the vehicle's siren and emergency lights as he drove away from the sheriff's office, causing the audio/video system to begin recording, and sped south on Highway 1 toward its intersection with Highway 2.

         As they proceeded on their journey, the officers began discussing what they would do upon encountering the now-afoot motorist, using what Hudson described as "gallows humor," an example of which was Tharp's statement, "F--- it. Shoot him," accompanying his remark with a laugh. When Hudson spoke about what might happen if the man had a gun and pointed it at the officers, Tharp interrupted, saying, "Blast his ass." Tharp also expressed concern that the parked car displayed an upside down American flag, later testifying that he thought it might indicate anti-government sentiment. Hudson recognized that the upside down flag might also signify distress. Both officers were concerned about whether the man had had military training, based on the reports that he was wearing a military uniform. Possessing only the information they had received from dispatch, Hudson and Tharp decided to pursue the following strategy: Tharp would roll down the passenger side window and "stick [his] gun out the window as [they] approach[ed]." Upon seeing the man, Tharp would "start telling him to drop the f---ing gun." The deputies discussed whether Tharp should remain in the cab or move to the cargo area of the truck, but they did not discuss any alternative ways of approaching the man, nor did they reconsider their plan after the man came into view.

         It was approximately twelve miles from the sheriff's office to where the solitary walker was finally spotted, with Hudson driving at speeds of 85 to 90 miles per hour. After they had driven some four miles, Hudson turned off his patrol vehicle's siren but kept the emergency lights activated, later explaining that he did not want to alert the man to the deputies' presence or otherwise give him an opportunity to take a defensive position. While en route, Hudson and Tharp received a report from dispatch that it had received another call regarding the man.

         The officers drove past a sedan with an open trunk that was parked on the shoulder of Highway 2. An American flag lay crumpled on the ground behind the car. Less than a minute later, Hudson spotted the man-later identified as Dooley-walking west along the north side of the highway. Hudson said to Tharp, "There he is, Jon. He's on your side." Hudson testified that he observed Dooley "flip off" a car that was driving east. The video recording shows that a red truck heading west drove unmolested past Dooley a few seconds before the officers reached him. Soon thereafter, Tharp said, "He's got the f---ing gun." Dooley seemed unaware of any law enforcement presence as the patrol vehicle approached him. Some six minutes had elapsed from the time the audio/video system began recording to the time the officers first saw Dooley.

         Because Dooley and the patrol vehicle were both heading west, the video recording shows Dooley from behind. He was dressed in a brown wide-brimmed hat, a tan-colored coat, and tan jodhupur-style pants that were tucked into his brown knee-high riding boots. He carried what appeared to be a rifle over his right shoulder. The rifle was tucked mostly between the right side of Dooley's body and his right arm, with the stock positioned behind Dooley and pointed toward the sky, the muzzle pointed toward the ground, and Dooley's right hand placed on or near the barrel. Hudson testified that "[the rifle] appeared to be slung over his right shoulder."

         As Hudson pulled over to the shoulder of the highway and slowed down, Tharp leaned out of the passenger side window yelling, "Drop the gun! Drop it!" The video shows Dooley turning clockwise to face east, where the patrol vehicle was coming to a stop. After completing the turn, Dooley's body was not quite square with the camera, with the muzzle of his rifle remaining pointed toward the ground. The video shows Dooley quickly taking hold of the barrel with his right hand and bringing his right hand toward his waist, whereupon Tharp again shouted, "Drop the gun! Drop it!" The video then shows Dooley using his right hand to move the rifle in a manner that the district court described as "arc-like," during the course of which Dooley moved his left hand. Tharp fired a single shot that struck Dooley's skull, killing him instantly. Some five seconds elapsed from the time Tharp yelled the first command to the time he fired the fatal shot.

         It was soon determined that what had appeared to the officers to be a real rifle was in reality a pellet gun that had been attached to a wire sling that had been buttoned under the right epaulet of Dooley's coat. That after-the-fact information served to explain Dooley's hand movements as his attempt to loosen the wire sling or ...


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