Tauke v. Stine

Decision Date01 August 1997
Docket NumberNo. 96-3975,96-3975
Citation120 F.3d 1363
PartiesWayne TAUKE, Assignee of the Estate of Dale R. Tauke, Appellant, v. 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.
CourtU.S. Court of Appeals — Eighth Circuit

Dave Hughes, cascade, IA, argued, for Appellant.

Jeffrey D. Farrell, Assistant Attorney General, Des Moines, IA, argued, for Appellees.

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 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 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, 105 S.Ct. 1694, 1697, 85 L.Ed.2d 1 (1985). In any particular case, "[w]e...

To continue reading

Request your trial
3 cases
  • Baldridge v. Cordes
    • United States
    • Supreme Court of Arkansas
    • September 26, 2002
    ...suit, and courts must take caution not to simply judge the officer's actions with the benefit of 20/20 hindsight. Tauke a. Stine, 120 F.3d 1363 (8th Cir.1997). Of course, the burden remains on the proponent of the immunity to establish the relevant predicate facts, and at the summary-judgme......
  • Parks v. Pomeroy
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 5, 2004
    ...use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness."); Tauke v. Stine, 120 F.3d 1363, 1365-66 (8th Cir.1997) (applying Fourth Amendment objectively reasonableness standard to use of deadly However, our inquiry does not end there. ......
  • Marth v. Herman
    • United States
    • U.S. District Court — District of Minnesota
    • July 30, 2012
    ...against an individual who was armed with two weapons, fired the first shot, fired at officers multiple times, and wounded one officer. 120 F.3d 1363, 1364-66 (8th Cir. 1997). Given these facts, the Eighth Circuit found that the officer "could reasonably have believed that this was a situati......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT