A. D., et al v. State of California Highway Pa, et al

Filing

FILED OPINION (ARTHUR L. ALARCON, PAMELA ANN RYMER and N. RANDY SMITH) REVERSED IN PART; VACATED IN PART., Judge: PAR Authoring, FILED AND ENTERED JUDGMENT. [7706128] [09-16460, 09-17635]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A. D., a Minor; J. E., a Minor;
SUE CASEY,
Plaintiffs-Appellees,
v.
STEPHEN MARKGRAF,
Defendant-Appellant,
and
STATE OF CALIFORNIA HIGHWAY
PATROL.
Defendant,

A. D., a Minor; J. E., a Minor;
SUE CASEY,
Plaintiffs-Appellees,
v.
STATE OF CALIFORNIA HIGHWAY
PATROL,
Defendant,
and
STEPHEN MARKGRAF,
Defendant-Appellant.




No. 09-16460
D.C. No.
3:07-cv-05483-SI





No. 09-17635
D.C. No.
3:07-cv-05483-SI
OPINION



Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted
November 3, 2010—San Francisco, California
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A. D. v. STATE OF CALIFORNIA HIGHWAY PATROL

Filed April 6, 2011
Before: Arthur L. Alarcón, Pamela Ann Rymer, and
N. Randy Smith, Circuit Judges.*
Opinion by Judge Rymer

*Due to the death of the Honorable David G. Trager, the Honorable N.
Randy Smith, United States Circuit Judge for the Ninth Circuit, was drawn
to replace him. Judge Smith has read the briefs, reviewed the record, and
listened to the audio recording of oral argument held on November 3,
2010.

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COUNSEL
John P. Devine, Deputy Attorney General, San Francisco,
California; Thomas A. Blake, Deputy Attorney General, San
Francisco, California, for the defendant-appellant.
John H. Scott, Scott Law Firm, San Francisco, California;
Amitai Schwartz, Law Offices of Amitai Schwartz, Emeryville, California, for the plaintiffs-appellees.

OPINION
RYMER, Circuit Judge:
California Highway Patrol Officer Stephen Markgraf
appeals the judgment following a jury trial in favor of A.D.
and J.E. on their claim under 42 U.S.C. § 1983 that Markgraf
violated their Fourteenth Amendment right to a familial relationship when he shot and killed their mother, Susan Eklund,
at the end of a high-speed chase. The district court denied
Markgraf’s motions for summary judgment and judgment as
a matter of law on the ground of qualified immunity. While
we decline to review the ruling on summary judgment, we
believe Markgraf is entitled to qualified immunity. Accordingly, we reverse on this issue. Markgraf separately appeals

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the award of attorneys’ fees, which we vacate in light of our
disposition on the merits.
I
Around 2:00 a.m. on March 23, 2006, California Highway
Patrol (CHP) officers Markgraf and Johnson, stationed in the
Oakland division, were notified by dispatch that a stolen vehicle was being pursued into their area. The vehicle, a white
Ford, was being driven at high speeds using all lanes of the
freeway and without its headlights on. The driver, later identified as Karen Eklund, was the only occupant.
Markgraf and Johnson intercepted the Ford as it came into
Oakland. Another CHP car with two officers joined the pursuit, and once the stolen vehicle began to cross the Bay
Bridge, Officer Wrathall and Sergeant Clare of the Golden
Gate Division in San Francisco also became involved. Clare
was in charge of the San Francisco area that night. The Ford
was traveling across the bridge at over one hundred miles per
hour, and continued on city streets in San Francisco at speeds
up to fifty miles per hour.
Eventually the Ford turned onto a street that curves right at
the end into a cul-de-sac and hit a chain link fence. Markgraf’s vehicle stopped broadside of the Ford and some thirty
feet behind it, followed by the other patrol cars. Markgraf got
out of his vehicle and ran to the right of the Ford to take cover
by a parked car; Johnson was still in the police unit, trying to
remove his seatbelt.
Eklund then backed into the police car. When she drove
forward and stopped, Markgraf looked inside the Ford, did
not see any weapons, and tried unsuccessfully to open the
door and window while yelling at the driver that the chase
was over and to turn off the car. The driver yelled “F —- you”
at Markgraf. Eklund reversed again and rammed the police
car two more times. Markgraf then opened fire. He fired

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twelve shots at the driver through the passenger-side window.
Clare told him to stop. Although other officers had their guns
drawn, no one else fired a shot. Twenty-five seconds elapsed
from the first ramming to firing.
Before the shooting Clare yelled “cross-fire” and “get on
the sidewalk guys” to get all the officers on the same side of
the street. Markgraf testified that he shot Eklund because he
was afraid she would succeed in getting past the parked vehicles and run over the other officers at the scene. He thought
he caught two tan uniforms behind the white Ford. Other officers testified they were all on the sidewalk, though Wrathall
said she was standing behind the Ford. Some testified that the
Ford was stopped or moving forward at the time of the shooting; others testified they couldn’t recall. None of the officers
believed the Ford posed an immediate threat to their lives.
A.D. and J.E. (collectively, “A.D.”), who were twelve and
ten years old, respectively, at the time of their mother’s death
brought suit in state court alleging violations of their Fourth
and Fourteenth Amendment rights under § 1983 and the state
wrongful death law. The action was removed, and all claims
but the Fourteenth Amendment were abandoned.
Markgraf moved for summary judgment on qualified
immunity. The district court noted that for purposes of a substantive due process claim under the Fourteenth Amendment,
when government actors must act quickly without the benefit
of reflection, as here, plaintiffs must show that they acted with
“purpose to cause harm unrelated to the legitimate object of
arrest” in order to establish behavior that shocks the conscience. County of Sacramento v. Lewis, 523 U.S. 833, 836
(1998). The court decided that A.D. had put forth enough evidence to allow a reasonable jury to find that Markgraf used
deadly force with a purpose to harm Eklund unrelated to a
legitimate law enforcement objective. It thus followed that the
constitutional right was clearly established at the time of the
alleged violation because no reasonable officer would believe

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it was constitutional to harm without a legitimate law enforcement objective. This case was, the court believed, also analogous to “obvious” cases where there does not need to be a
materially similar case for the right to be clearly established.
Accordingly, it denied summary judgment and the matter
went to trial.
The jury returned a verdict in favor of A.D. and J.E., and
in a bifurcated damages phase awarded $30,000 to each. In
the meantime, Markgraf moved for judgment as a matter of
law at the close of A.D.’s case, and renewed it after his case
and after trial. Drawing inferences in favor of the verdict, the
court found that the jury could reasonably conclude that
Markgraf acted with a purpose to harm unrelated to a legitimate law enforcement objective based on evidence that
Eklund’s car was contained in a dead-end street; Eklund
refused to get out of her car and repeatedly said “F — you”
to Markgraf; the officers were positioned such that they were
not in the path of the Ford; other officers testified they did not
feel threatened nor did they perceive an immediate threat at
the time of the shooting; five other officers had their guns
drawn but none fired other than Markgraf; Eklund’s car was
either stopped or going forward at the time of the shooting;
the location of the Ford was not consistent with Markgraf’s
testimony; and Markgraf shot Eklund twelve times and emptied his gun. The court denied the JMOL for the same reasons
it denied his motion for summary judgment.
The district court granted A.D.’s motion for attorneys’ fees,
awarding $489,631 in fees for work on the merits; $6,402.59
in costs on the merits; and $63,490 in fees together with
$337.86 in costs for the fee petition. The court also granted
post-judgment interest.
Markgraf timely appealed the denial of qualified immunity;
the verdict, based on exclusion of evidence of Eklund’s
amphetamine intoxication and criminal record, and failure to

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give his proposed instructions; and the award of attorneys’
fees.
II
To the extent Markgraf appeals the denial of his motion for
summary judgment, we shall not review it because meanwhile, there has been an adverse jury verdict. See Ortiz v. Jordan, 131 S. Ct. 884, 888-89 (2011); Dixon v. Wallowa
County, 336 F.3d 1013, 1017 (9th Cir. 2003); see also Price
v. Kramer, 200 F.3d 1237, 1243-44 (9th Cir. 2000) (refusing
to review denial of motion for summary judgment on qualified immunity after adverse jury verdict). However, Markgraf
preserved his position on qualified immunity — renewed in
a Fed. R. Civ. P. 50(b) motion after trial — by bringing a
Rule 50(a) motion for judgment as a matter of law before the
case was submitted to the jury. See Ortiz, 131 S. Ct. at 893.
Cf. Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075,
1083 (9th Cir. 2009) (noting that when a qualified immunity
claim cannot be resolved before trial due to a factual conflict,
a litigant must make a Rule 50(a) motion to preserve the issue
for review on a Rule 50(b) motion).
[1] To determine whether an officer such as Markgraf is
entitled to qualified immunity, we inquire whether a constitutional right would have been violated on the facts alleged and
whether the right was clearly established. See Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009). We need not proceed
through the two-step inquiry sequentially. See id. at 818. In
deciding whether the law governing the officer’s conduct was
clearly established, we consider whether under that law a reasonable officer could believe the conduct was lawful. Ortega
v. O’Connor, 146 F.3d 1149, 1154 (9th Cir. 1998).
[2] The Fourteenth Amendment violation at issue in this
case was the right of Eklund’s children to familial association
with their mother. As the Supreme Court in Lewis and we in
Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008), made

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clear, only official conduct that “shocks the conscience” is a
cognizable due process violation. Whether this is shown, in
turn, depends upon which test applies: deliberate indifference,
or the more demanding showing that the officer acted with a
purpose to harm that is unrelated to legitimate law enforcement objectives. The more demanding standard governs when
actual deliberation is impractical. Id. As the district court concluded, the purpose to harm standard controls given how
quickly events occurred after Eklund’s vehicle came to a stop
at the chain link fence and she started to ram Markgraf’s vehicle. In these circumstances, he lacked “the opportunity for
actual deliberation.” Id. at 1138; see Bingue v. Prunchak, 512
F.3d 1169, 1170-71 (9th Cir. 2008) (holding that the Lewis
intent to harm standard applies to all police officers involved
in high-speed chases).
[3] The jury was properly instructed on this standard from
Lewis.1 As the jury resolved the facts against Markgraf, we
take it as true that he acted with a purpose to cause harm unrelated to a legitimate law enforcement objective.2 See Harper
v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008)
(in reviewing a JMOL the court must view all evidence in the
light most favorable to the nonmoving party); Pavao v.
Pagay, 307 F.3d 915, 918 (9th Cir. 2002) (same standards
govern a renewed motion for JMOL). Regardless, under Pearson, we need not focus on whether there was a constitutional
1

Markgraf argues that the court should have contrasted the Lewis standard with “deliberate indifference,” but having correctly stated what the
law was, the court was not obliged to state what the law was not. Nor did
the court abuse its discretion in failing to instruct on the “contours” of the
standard as Markgraf proposed, because his instructions covered points
that were not in issue.
2
Markgraf’s challenge to the court’s refusal to admit testimony about
Eklund’s criminal background and substance abuse also fails, as the nature
of her conduct was never in dispute. Cf. Boyd v. City and County of San
Francisco, 576 F.3d 938, 943-44 (9th Cir. 2009) (admission of evidence
not known to the officer at the time he shot and killed a suspect upheld
when the decedent’s actions and motives were at issue).

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violation because the case can be resolved under the second
prong. Markgraf argues that on the second prong of the qualified immunity analysis, the district court should have considered the totality of the circumstances, improperly focused on
his motives when the test is objective, and collapsed the
inquiry between the first and second prongs into a single
prong focused on the purpose to harm.
[4] The district court assumed under the clearly-established
prong that it would always be objectively unreasonable for an
officer to violate this particular constitutional right. It held
that no reasonable officer would believe it was constitutional
to harm without a legitimate law enforcement objective. This
seems to us to conflate the general standard — purpose to
harm unrelated to a legitimate law enforcement objective —
with the objective standard by which the officer’s conduct is
to be measured. See Saucier v. Katz, 533 U.S. 194, 200 (2001)
(holding that the questions of whether the right was clearly
established and the reasonableness of the force used cannot be
fused), overruled on other grounds by Pearson, 129 S. Ct.
808. The inquiry about what a reasonable officer would have
understood is more discrete, and “must be undertaken in light
of the specific context of the case, not as a broad general
proposition.” Brosseau v. Haugen, 543 U.S. 194, 198-99
(2004). Courts are to ask whether at the time of the officer’s
actions, it was clearly established “in this more particularized
sense” that he was violating a constitutional right. Id. at 199
(internal quotation marks omitted). Thus, the question is not
whether an objectively reasonable officer would believe it
was constitutional to harm without a legitimate law enforcement objective, but whether such an officer would believe, in
the circumstances with which Markgraf was confronted, a
legitimate law enforcement objective existed.
We conclude that Markgraf might have had “a mistaken
understanding as to whether a particular amount of force is
legal in those circumstances.” Saucier, 533 U.S. at 205. In
determining whether a reasonable officer would have believed

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Markgraf’s conduct was unlawful, we ignore Markgraf’s subjective motives and consider his actions in light of the totality
of the circumstances. See Graham v. Connor, 490 U.S. 386,
396-97 (1989); Harlow v. Fitzgerald, 457 U.S. 800, 817-18
(1982). This “reasonableness is judged against the backdrop
of the law at the time of the conduct.” Brosseau, 543 U.S. at
198.
[5] We are unaware of case law prior to March 23, 2006
in which an officer was held to have violated the plaintiff ’s
right to substantive due process under similar circumstances
involving a high-speed chase. This suggests that Markgraf did
not have fair notice about the contours of A.D.’s constitutional rights. That said, it is not necessary for precisely the
same action to have been held unlawful. Anderson v. Creighton, 483 U.S. 635, 640 (1987); Fogel v. Collins, 531 F.3d 824,
833 (9th Cir. 2008). So we must consider whether cases
where force was used by an officer involved in a high-speed
chase provided sufficient notice.
[6] The Fourteenth Amendment cases involving car chases
concern an officer or fleeing suspect striking an innocent
bystander or driver. See, e.g., Lewis, 523 U.S. 833 (motorcyclist killed when hit by police car in pursuit); Perez v. Unified
Gov’t of Wyandotte County, 432 F.3d 1163 (10th Cir. 2005)
(motorist struck by fire truck responding to emergency); Terrell v. Larson, 396 F.3d 975 (8th Cir. 2005) (en banc) (officer
responding to emergency struck motorist); Helseth v. Burch,
258 F.3d 867 (8th Cir. 2001) (motorist injured by fleeing suspect); Trigalet v. City of Tulsa, 239 F.3d 1150 (10th Cir.
2001) (motorist killed by fleeing suspect); Davis v. Twp. of
Hillside, 190 F.3d 167 (3d Cir. 1999) (pedestrian struck as a
result of high-speed chase); Evans v. Avery, 100 F.3d 1033
(1st Cir. 1996) (pedestrian injured by fleeing suspect’s vehicle). Nothing in the universe of cases prior to Markgraf’s conduct would have alerted him that his split-second decision in
dealing with someone who had just led police on a dangerous

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high-speed chase and who was using her car as a weapon
shocked the conscience.3
[7] For these reasons we conclude that Markgraf is entitled
to qualified immunity. In light of this disposition, we vacate
the award of attorneys’ fees. See Norwood v. Vance, 591 F.3d
1062, 1070 (9th Cir. 2010) (vacating award of attorneys’ fees
after holding the district court erred in denying qualified
immunity).
REVERSED IN PART; VACATED IN PART.

3

To the extent the parties rely on Fourth Amendment cases such as
Brosseau, they involve a different standard and, in any case, do not alter
the analysis here.