A federal judge has issued a summary judgment in favor of the city of Davenport and one of its police officers in a wrongful death lawsuit involving the shooting death of Bobby Jo Klum in October 2021.
The suit, initially filed Aug. 24, 2022, in Scott County District Court by Klum’s wife, Nicole Klum, and Klum’s mother, Wanda Albright, was moved to U.S. District Court, Davenport, on July 5, 2023.
Klum’s wife and mother claimed that he was killed by Davenport Police Officer Mason Roth on Oct. 13, 2021, because Roth was improperly trained by the Davenport Police Department and that Roth used excessive force in violation of the U.S. Constitution and the Iowa Constitution. They also made a negligence claim.
Attorneys for Roth and the city argued that Roth was justified in his use of force, as was determined by Scott County Attorney Mike Walton in clearing Roth and the department of any wrongdoing.
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Attorneys for Roth and the city asked for a summary judgment, while attorneys for Klum and Albright moved for a partial summary judgment holding Roth and the city liable for violations of the U.S. and Iowa constitutions and for negligence causing Klum’s death.
On May 30, U.S. District Court Judge Rebecca Goodgame Ebinger ruled in favor of Roth and the city.
According to Scott County District Court and Rock Island County Circuit Court electronic records, and records from the Iowa Department of Corrections and Iowa Sex Offender Registry, on Oct. 13, 2021, Klum, 37, of Davenport, was wanted on a warrant for probation violation.
At that time, Klum was on parole for a sex offender registration violation conviction from 2017 and would have remained on parole until Jan. 20, 2024. He was sentenced in that case as a repeat offender, with convictions from Scott and Rock Island counties. At sentencing, Scott County District Judge John Telleen gave Klum the maximum term in prison of 15 years, with at least three years to serve before parole could be granted. Telleen also ordered Klum to remain on the sex offender registry for another 10 years.
Klum was placed on work release on July 10, 2018, according to Iowa Department of Corrections electronic records and paroled on Jan. 18, 2019. He was placed back into the work release program on Nov. 4, 2020, and paroled again on March 23, 2021.
According to Ebinger’s judgment, at about 3:30 p.m. on Oct. 13, 2021, Davenport Police Officer Dustin Mooty parked his patrol car near a residence on Iowa Street as he tried to locate Klum. Mooty knew Klum had a warrant for his arrest.
Mooty saw Klum walking from the yard of a residence into an alley adjacent to the residence. When Klum saw Mooty, Klum began to flee. Mooty turned on his squad’s emergency lights and sounded his siren while pulling into the driveway of the residence. However, Klum continued to flee. Mooty then chased after Klum on foot, and reported over the radio that he was pursuing Klum. Mooty twice told Klum to stop and that there was a warrant for his arrest.
Approaching Klum from across a street, Mooty observed Klum turn toward him multiple times. He saw that Klum was pointing a gun to his own head. Klum continued to disobey Mooty’s commands to stop and continued to flee.
About 3:40 p.m., Mooty was joined by Officer Lucas Rusk, who began to pursue Klum, too. Other officers also began to arrive to assist in capturing Klum. Officers lost contact with Klum for a short time, but at 3:45 p.m. Rusk again encountered Klum.
According to Ebinger’s statement, Klum, who had been wearing a neon hoodie was then wearing a red sweatshirt. He continued to carry a gun. Rusk asked Klum multiple times to put the gun down and told Klum to “talk about this.” Klum continued to refuse to drop the gun.
Throughout the incident, police body cameras recorded what was happening.
Officers continued to pursue Klum, who held on to his weapon. Officers continued to yell at bystanders to go into their homes and to get off the street.
At 3:48 p.m., Officer Robert Welch deployed a 40mm “less-lethal” rubber bullet that struck Klum in the upper chest but had no effect. Within a few seconds of the first lethal round, Officer Angela Jarrin fired a second 40mm less-lethal round that either missed or grazed Klum.
Fifteen seconds after the second less-lethal round was fired, Roth fired a lethal round that struck and killed Klum.
It wasn’t until after Klum was down that officers discovered he was carrying a BB gun.
Ebinger ruled that Roth’s qualified immunity holds in the case and that he did not violate Klum’s Fourth Amendment right to unreasonable seizure as a matter of law. In her ruling, she said Roth’s use of deadly force to seize Klum was not objectively unreasonable. A “reasonableness inquiry,” she said, extends only to those facts known to the officer.
Those facts were:
- Roth knew Klum had been evading arrest for 10 minutes.
- He heard the report that Klum was carrying a gun and perceived Klum was carrying a gun when he encountered Klum.
- Klum had ignored commands to drop the gun, and he knew that rubber bullets had been fired at Klum.
- Klum continued to walk toward a residence toward which several bystanders had fled.
“The court finds as a matter of law, an objectively reasonable officer in Roth’s position would view Klum as posing an immediate threat to the bystanders at the time Klum was shot,” Ebinger said in her ruling. “Klum evaded arrest for 12 minutes, in possession of what Roth and officers on the scene reasonably perceived to be a deadly weapon.”
- That Klum held the gun to his head indicating mental distress or illness “did not reduce the immediacy or severity of the threat posed,” Ebinger said.
- The plaintiffs also did not provide evidence that showed the city of Davenport has a policy or custom “employing unconstitutional practices or whether the city has failed to train officers in a matter showing deliberate indifference to violations of federal constitutional rights.”
- The plaintiffs were trying to show that the city had a “policy” of training officers in an unconstitutional “shoot-first” strategy for managing armed suspects, Ebinger said. They argued that Roth violated Klum’s constitutional right against unreasonable seizure because Roth applied the unlawful training. But the plaintiffs did not provide any evidence to support those arguments.
- The plaintiffs tried to assert claims of assault and battery, but Ebinger dismissed the claims as they came well after discovery closed on Feb. 1, 2024, while the trial had been set for September 2024.
Klum was required to register on the sex offender registry because of a 2007 conviction in Rock Island County of aggravated criminal sexual abuse of a girl between the ages of 13 and 16.
Klum had two court cases pending in Scott County at the time of his death.
On Aug. 24, 2021, during a hearing in Scott County District Court, Klum pleaded guilty to a fifth charge of driving while barred. He was to be sentenced Dec. 8 of that year.
On Aug. 17, 2021, Klum was again charged with violating Iowa’s sex offender registry statutes. He faced three counts of violating the registration statutes, with the offense dates being May 14, June 16 and Aug. 17. Each is a Class D felony under Iowa law that carries a prison sentence of five years. He also faced an enhanced penalty for being a repeat offender. A pre-trial conference was to be held Jan 7, 2022.
An appeal of Ebinger's ruling has been filed in the U.S. Court of Appeals for the Eighth Circuit.
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