Now in federal court, family claims Davenport police had no cause to shoot Bobby Jo Klum

The family of a man killed by Davenport police two years ago says the officer who shot him was improperly trained and faced no immediate danger when he pulled the trigger.

Bobby Jo Klum was shot by Davenport officer Mason Roth on Oct. 13, 2021, as Klum walked down a street holding what was later found to be a pellet gun to his own head.

Police said at the time that Klum, who was wanted on an outstanding warrant, refused repeated directions to put down the gun and get off the street, and continued despite being hit by at least one rubber bullet before Roth shot him.

The Scott County Attorney later declined to bring charges against Roth, finding the shooting was justified.

In their lawsuit, which this month was moved to federal court, Klum's wife and mother disagree.

"Roth murdered a vulnerable, emotionally distraught man holding a BB gun to his own head while all other reasonable officers in the area took measures to de-escalate the situation," according to an amended complaint filed in June.

An attorney for the city told the Register the shooting was a "tragedy" but Davenport denies any legal liability for Klum's death.

Why did police shoot Bobby Jo Klum?

According to his family's court filings, Klum, 37, was in a suicidal state and did not want to go to jail when he encountered police on Oct. 13. As described in the complaint, Klum pulled a pellet gun out of his bag and pointed it at his head while walking through the neighborhood, leading police to call for backup.

Eventually, up to 40 officers were on the scene, establishing a perimeter around Klum as he walked.

According to the complaint, Roth later told investigators he shot Klum after several rubber bullets fired by other officers appeared to have no effect, and Klum was advancing toward a group of bystanders who he feared Klum might attack or take hostage.

Klum's family argues in court filings, citing video footage of the encounter, no bystanders were in Klum's path or in any danger when Roth fired. At no point did Roth verbally threaten anyone, or point his pellet gun at anyone but himself, according to the complaint.

Jason O'Rourke, an attorney representing Davenport, told the Register the city believes the suit has no merit.

"While this was a tragic incident and the city’s thoughts go out to Mr. Klum’s family, the city denies it or Officer Roth has any liability in this lawsuit," O'Rourke said in an email. "Mr. Klum had multiple opportunities to respond to various officers’ attempts to de-escalate the situation, but he chose not to do so. As a result, Officer Roth determined it was necessary to use force for the protection of others."

Was Davenport police training to blame?

The plaintiffs also allege that Roth and other Davenport police have been trained to believe they must shoot first because a suspect holding a gun can aim and fire before an officer can react. The complaint characterizes this belief as "pseudo-science" and argues the city is liable for improperly training officers to shoot in situations where deadly force is not justified.

Roth reportedly told investigators "we've done lots of training where a suspect can have a gun either in a pocket or even pointed at their head and the suspect can go from that position to pointing the gun at you and firing a round before you can react. Even if you have your weapon out and aimed at them, your reaction time is never going to be as fast as their action.”

The complaint attributes this belief in an "action versus reaction deficit" to the Force Science Institute, a controversial scientific organization whose research has been heavily criticized by the Department of Justice and other law enforcement groups. It is not clear if Davenport has offered training from or inspired by the Force Science Institute, and the city's attorneys have denied the plaintiff's claims about the department's training in court filings.

The plaintiffs argue it is plainly unconstitutional to shoot and kill someone holding a gun because of the fear they might aim it and shoot at someone else faster than a trained marksman aiming at them can stop them. They point to past court rulings finding that shooting someone aiming a gun at their own head, or even moving the gun after being ordered to drop it, is an unreasonable use of force.

"Common sense dictates that in situations where a law enforcement officer has a suspect in their rifle sight, the officer could pull the trigger before any suspect could move a gun toward the officer or another, aim and fire," according to the complaint.

The complaint also criticizes the findings of Scott County Attorney Michael Walton, who ruled the shooting justified because of “how quickly the direction of the gun could change.”

"If that was the actual legal standard to be applied, then anyone carrying a weapon in the right-to-carry state of Iowa could automatically be shot and killed at any time by law enforcement officers," according to the complaint.

Lawsuit rebooted after Iowa Supreme Court ruling

Klum's family originally sued the city in Iowa district court in August 2020, alleging the shooting violated Klum's rights under the Iowa Constitution.

In May, the Iowa Supreme Court ruled that the Iowa Constitution does not support such claims for damages, reversing a 2017 decision finding that it did. In response, Klum's family filed an amended complaint in June, now bringing claims for violations of the U.S. Constitution.

In response, the city filed in early July to move the case from state to federal court.

Attorney Dave O'Brien, who represents Klum's family, previously told the Register the recent Supreme Court decision would force many more plaintiffs into bringing federal claims in federal court.

"Lesson learned now. We’re just going to have to file these federal claims in every case," he said, speaking about another lawsuit. "… We chose not to file federal claims because we didn’t want to get removed to federal court. Now in retrospect, federal court is looking a lot better!"

William Morris covers courts for the Des Moines Register. He can be contacted at wrmorris2@registermedia.com, 715-573-8166 or on Twitter at @DMRMorris.

This article originally appeared on Des Moines Register: Davenport 2021 police shooting was unjustified, family claims in suit