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
Jon Tharp, in his Individual Capacity Defendant-Appellee
Submitted: April 12, 2016
from United States District Court for the Southern District
of Iowa - Davenport
WOLLMAN, BEAM, and MURPHY, Circuit Judges.
WOLLMAN, Circuit Judge.
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 courtgranted
Tharp's motion for summary judgment based on qualified
immunity and Iowa law. We affirm.
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.
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.
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.
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.
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.
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 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."
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.
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 ...