On Oct. 13, 2021, Davenport Police Officer Dustin Mooty approached the home of Bobby Jo Klum with a plan to address an outstanding warrant for his arrest. When Klum spotted Mooty, however, Klum fled on foot, prompting a police pursuit and shooting that are now the subject of a petition for review.
As Mooty pursued Klum while waiting for back-up, he realized that Klum was carrying a gun and had it pointed at his own head. Mooty “commanded Klum to get on the ground,” but Klum continued to walk through the neighborhood “while continuing to hold the gun to his head.” He did not stop after several other officers reached the scene and ordered Klum to remain still and drop the weapon. He still did not stop after he was hit with rubber bullets. Several neighborhood residents watched from their yards and sidewalks, ignoring the officers’ instructions to go inside.
Over 10 minutes after Klum fled from Mooty, Officer Mason Roth shot him, and he fell to the ground. Klum later died from the gunshot wound.
In response to Klum’s death, his wife and mother sued Roth and the city. Among other things, they alleged that Roth’s use of deadly force violated Klum’s Fourth Amendment right against “unreasonable seizure.”
A federal court in Iowa and then the U.S. Court of Appeals for the 8th Circuit sided with Roth and the city. They held that Roth’s behavior was reasonable and that, as a result, he was entitled to qualified immunity and that the city was not liable for Klum’s death. One key factor weighing in Roth’s favor, according to the 8th Circuit, was that Klum, still holding a gun to his head, was moving in the general direction of bystanders when Roth shot him.
Before the Supreme Court, Klum’s wife (Nicole Klum) and mother (Wanda Albright) raise Second and Fourth Amendment questions. Specifically, in their petition for review, they contend that the lower courts ignored Klum’s right to openly carry a weapon in accordance with the Second Amendment, and that their Fourth Amendment analysis is out of step with the decisions of other courts of appeals. “[T]he Eighth Circuit now stands alone as the only circuit to hold that the mere possession of a firearm, without any menacing use or threat, may justify the use of deadly force,” the petition said.
In their brief in opposition, the City of Davenport and Roth contend that it is too late in the legal proceedings for Klum and Albright to raise their Second Amendment concerns. They “never argued at the district court level that the Second Amendment or Iowa law permitting the open carry of firearms prohibited Officer Roth’s use of deadly force,” Roth and the city wrote. They also disputed the petition’s description of the pursuit, contending that it downplays the significance of Klum’s failure to heed multiple orders to stop moving and the presence of bystanders. Klum and Albright “frame this case as one involving a law enforcement officer who shot and killed an individual merely for holding a gun to his own head. Nothing could be further from the truth,” the brief said.
In their reply, Klum and Albright contended that they remain free to advance Second Amendment arguments to support their Fourth Amendment claim. They emphasized that the case “raises significant questions regarding the constitutional protections afforded to gun owners and the limits on law enforcement’s use of deadly force.”
The justices are scheduled to consider Klum v. City of Davenport, Iowa, at their private conference on Friday.