Grant Rodgers

The Des Moines Register

A fatal shooting by a southeast Iowa sheriff's deputy ended in a "needless loss of life" that might have been prevented had the two deputies involved approached the tense situation differently, according to a federal judge.

Van Buren County deputy Jon Tharp shot Robert Michael Dooley in the head with an AR-15 rifle, even though Dooley was doing nothing illegal at the time and appeared to be following the deputy's orders to drop a BB gun slung over his shoulder, Judge Roger Wollman noted in a ruling for the U.S. Court of Appeals for the Eighth Circuit released Monday in a lawsuit brought by Dooley's wife and five children.

However, Tharp is ultimately immune from being sued for causing the death because his actions were reasonable based on all the facts of the Oct. 16, 2012, encounter, which was caught on video from the camera inside another deputy's patrol truck, Wollman wrote in his ruling for the three-judge panel that reviewed the case. That conclusion fits with past rulings that give immunity to police officers if a use of force, from the viewpoint of a "reasonable officer," was necessary to protect themselves from violence, the judge wrote.

But Sharon Dooley said that it's hard to reconcile the dismissal of the lawsuit with Wollman's own description of her husband's killing as a "tragic" case of "mistaken perception" by the deputy. Dooley said her late husband was diagnosed with bipolar disorder in 1992 and was in a manic state on the day of his death, despite managing the condition off-and-on for several years.

"This could happen to your brother, your father, your uncle, your friend," Dooley said in a phone interview Monday. "This could happen to anybody, and that’s the scary part. "

Van Buren County Sheriff Dan Tedrow declined to comment about the ruling when reached Monday, but described both deputies involved in the shooting — Tharp and Chief Deputy Brad Hudson — as "good deputies." Both are still working for him in the southeast Iowa county of approximately 7,500 residents, Tedrow said.

Tharp and Hudson were both on duty the day of the shooting when a dispatcher in Keosauqua received a phone call about a man walking along Highway 2 dressed in military garb, carrying a rifle and "flipping off" drivers who passed him. A second person called with a similar report, but told the dispatcher that the man may have been walking from a car parked near the highway with an upside-down American flag hanging from the open trunk.

Video from inside Hudson's Ford F-150 patrol truck showed that the pair spoke about what would happen when they found the man, with Tharp at one point saying, "(Expletive) it. Shoot him," before laughing, according to the ruling. When Hudson asked what would happen if the man pointed a gun at the officers, Tharp responded by saying, "Blast his a--," the ruling said.

The deputies spotted Dooley, 59, walking west on the highway "with what appeared to be a rifle over his right shoulder" with the muzzle pointing toward the ground, according to the ruling. Hudson had turned off the vehicle's sirens to mask their approach in case the man took a "defensive position" against them. Dooley and the deputies were both traveling west, so the pair approached him from behind with Tharp leaning out of the truck's window with his rifle.

As Hudson pulled the truck over to the side of the highway, Tharp shouted, "Drop the gun," according to the ruling. As the deputy shouted, Dooley turned around and pulled the gun barrel so the muzzle was facing upward toward the sky.

Both Wollman and a federal district court judge who first reviewed the lawsuit wrote that slow-motion viewing of the video appears to show Dooley attempting to put down the weapon, but that he first needed to undo an epaulet on his right shoulder holding the sling. Dooley did not put his hands near the trigger of the gun and both of his arms were across his chest when Tharp fired the single, fatal shot, Wollman wrote.

Five seconds passed between Tharp shouting his first command to Dooley and pulling the trigger, Wollman wrote. The deputy also did not identify himself as a law enforcement officer. The deputies realized after the shooting that the rifle was actually a pellet gun replica of a Winchester Model 1894 lever action rifle, according to the ruling.

In the ruling, Wollman cited a 2016 New York Times article about the growing trend in law enforcement toward de-escalating tense situations, seemingly lamenting that no such techniques were used in approaching Dooley. The article specifically cites "coaxing rather than commanding" as techniques that have grown in the last two decades.

"A less confrontational approach to the situation facing them — one that might have given them time to recognize that Dooley was in fact attempting to comply with Tharp’s twice-shouted commands to drop the gun rather than preparing to fire upon him — might have prevented this needless loss of life," Wollman wrote.

However, other circumstances made the decision to fire reasonable, Wollman wrote. For instance, the deputies feared that the upside-down flag Dooley planted on his car was a symbol of anti-government views, he wrote, though it is also considered distress signal. Sharon Dooley said Monday that her husband's car had broken down before he took off on foot. Additionally, even though Dooley appeared to be putting the gun down, "law enforcement officers are not afforded the opportunity of viewing in slow motion what appears to them to constitute life-threatening action," Woolman wrote.

"Viewing the dash-cam video at regular speed and considering the facts of this case in light of the forgoing decisions, we conclude that Tharp’s mistaken perception that Dooley posed a threat of serious physical harm to Tharp was objectively reasonable," he wrote.

The appeals court ruling affirms a 2015 ruling from U.S. Magistrate Judge Helen Adams, who also ruled the shooting was reasonable. In her ruling, Adams wrote that Tharp's comments on the way to the scene were crude, but not evidence of "malicious intent." The shooting was investigated by the Iowa Division of Criminal Investigation, but the then-Van Buren County Attorney cleared Tharp of any criminal charges.

Dooley said her husband, who went by Mike, was an avid civil war re-enactor and history buff who had once considered a run for Johnson County supervisor. But he was also troubled and became involved in a high-speed chase with deputies in Washington County four days before his death, Register archives show. An attempt by Dooley's children to have him civilly committed had failed, Sharon Dooley said.

"My husband was sick," she said. "I know that and he made some bad decisions, but my children tried to get him help.”