Nicole Klum, Individually and as Administrator of the Estate of Bobby Jo Klum, et al. v. City of Davenport, Iowa, et al.

The decision below contravenes the Second Amendment right to “keep and bear arms,” and the Fourth Amendment prohibition “against unreasonable searches and seizures.” U.S. Const. amen. II and IV. In Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 1701, 85 L.Ed.2d 1 (1985), the Court held that the use of deadly force “to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” The below decision also conflicts with all other Circuit Court precedent, and applicable Iowa law affirming the right to openly carry firearms. I.C.A. §§ 724.5 and 704.2(2) . Prior to the panel’s decision it was clearly established that deadly force may not be used on a person “in possession of a gun” unless the gun is “point[ed] at another or wield[ed] in an otherwise menacing fashion.” Cole ex rel. Est. of Richards v. Hutchins, 959 F.3d 1127, 1134 (8th Cir. 2020). The decision below violates that precedent by conceding the gun Klum held to his own head never moved, but authorizing deadly force because Klum allegedly turned to walk in the general direction of bystanders located a half a block away. The decision below also disregards the requirement to provide a warning before using deadly force. Whether the Second and Fourth Amendments to the United States Constitution forbid police from using deadly force against a suspect exclusively for holding a gun to his own head?