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).

 

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 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

 

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 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.'

"

 

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 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

 

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 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.
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