                            United States Court of Appeals
                                for the eighth circuit
                                     ___________

                                     No. 96-3975
                                     ___________

           Wayne Tauke, Assignee of the   *
           Estate of Dale R. Tauke,       *
                                          *
               Appellant,                 *   Appeal from the United
States
                                          *   District Court for the
Northern
               v.                           * District of Iowa.
                                            *
           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.                 *
                                       ___________
                                Submitted:   May 19, 1997

                                   Filed:   August 1, 1997
                                    ___________

          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
         (1)     The Honorable John A. Jarvey, Chief Magistrate Judge,
United
         States District Court for the Northern District of Iowa, acting
by
         consent of the parties.   See 28 U.S.C. § 636(c)(1); see also
Fed.
         R. Civ. P. 73(a).




                                          -2-
           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




                                        -3-
          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 (1985). In any particular case, "[w]e must balance ' "the
     nature and quality of the intrusion on ... Fourth Amendment
     interests" against the countervailing governmental interests.'
"




                                    -4-
           Gardner, 82 F.3d at 252, quoting Graham v. Connor, 490 U.S.
386,
           396 (1989), itself quoting United States v. Place, 462 U.S.
696,
           703 (1983).

                We applied these principles recently in Cole v. Bone, 993
F.2d
           1328 (8th Cir. 1993).   In Bone, 993 F.2d at 1331, a state
police
           officer shot and killed a truck driver who was fleeing the
police.
           The truck driver had eluded the police for more than fifty
miles,
           traveling at high speeds through congested areas, forcing
police
           and other cars off the road and showing no signs that he would
give
           in to a roadblock or other tactic. Id. A police officer,
           traveling ahead of the truck, shot through the police car's
rear
           window and struck the truck driver in the forehead. Id.
                The important question in the case, we said, was whether
the
           police officer   acted with objective reasonableness.   Id. at
1333.
           Noting that the officer "could reasonably have believed that
the
           truck would continue to threaten the lives of travellers as it
           continued speeding down the crowded interstate highway," we
found
           that the officer "had probable cause to believe that the truck
           posed an imminent threat of serious physical harm to innocent
           motorists as well as to the officers themselves." Id. On this
           basis, we reversed a denial of summary judgment below, and
remanded
           for the entry of summary judgment in the officer's favor.    Id.
at
           1334.   We conceded that the officer's decision "to use deadly
force
           might not have been the most prudent course of action; other
           courses of action, such as another stationary roadblock, might
           conceivably have been available." Id. But we concluded that
the
           Fourth Amendment "requires only that the seizure be objectively
           reasonable, not that the officer pursue the most prudent course
of
           conduct as judged by 20/20 hindsight vision." Id.
                In applying this principle to the fatal shooting of Mr.
Tauke,
         we note first that we are not blind to the tragic circumstances
of
         the case.   Mr. Tauke was gunned down by a high-powered rifle on
his
         own property. The invasion of his constitutional interests was
         extreme, since "[t]he intrusiveness of a seizure by means of
deadly
         force is unmatched."   Garner, 471 U.S. at 9.   But it is
undisputed
         that the state law




                                          -5-
          enforcement officers were confronted with a man who refused to
drop
          his weapon, despite repeated orders, and who instead fired the
          first shot, followed by several more. At the time that the
          authorization to shoot was given, moreover, all of the troopers
at
          the scene were aware that Trooper Shinker had been wounded, and
          that his assailant was still armed and unwilling to surrender.
It
          is clear to us that in these circumstances the officer giving
the
          authorization to shoot, and the trooper who shot Mr. Tauke,
could
          reasonably have believed that this was a situation in which
there
          was a significant threat of death or serious physical injury to
          those at the scene. As noted before, we do not ask whether the
          course of action chosen was the most prudent or the wisest one.
We
         ask only whether the decision to use deadly force was
objectively
         reasonable, and we hold that it was as a matter of law.

                                         III.
               The cause of action against Sheriff Kennedy based on his
          turning control of the relevant events over to the state law
          enforcement officers can be shortly dealt with. Whether it is
          construed as a respondeat superior claim, as the court below
          construed it, or as an independent claim for abandoning a duty
          imposed by state law, it fails because the other defendants did
not
          deprive Mr. Tauke of any constitutional right, and therefore no
          claim under § 1983 can lie against anyone for Mr. Tauke's
death.

                                         IV.
               We thus affirm the orders of the lower court for the
reasons
          indicated.

               A true copy.

                    Attest:

                         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-6-
