A.D. v. Cal. Highway Patrol

• Citation: 712 F.3d 446
• Decision Date: 03 April 2013
• Docket Number: 09–17635.,Nos. 09–16460,s. 09–16460
• Parties: A.D., a Minor; J.E., a Minor; Sue Casey, Plaintiffs–Appellees, v. State of CALIFORNIA HIGHWAY PATROL, Defendant, and Stephen Markgraf, Defendant–Appellant. A.D., a Minor; J.E., a Minor; Sue Casey, Plaintiffs–Appellees, v. State of California Highway Patrol, Defendant, and Stephen Markgraf, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

712 F.3d 446

A.D., a Minor; J.E., a Minor; Sue Casey, Plaintiffs–Appellees,

v.State of CALIFORNIA HIGHWAY PATROL, Defendant,andStephen Markgraf, Defendant–Appellant.

A.D., a Minor; J.E., a Minor; Sue Casey, Plaintiffs–Appellees,

v.State of California Highway Patrol, Defendant,andStephen Markgraf, Defendant–Appellant.

Nos. 09–16460, 09–17635.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 18, 2012.

Filed April 3, 2013.

Edmund G. Brown, Jr., James M. Schiavenza, Paul T. Hammerness, Tom Blake (briefed), and John P. Devine (briefed and argued), Office of the Attorney General of California, San Francisco, CA, for Defendant–Appellant.

Amitai Schwartz (briefed and argued), Moira Duvernay, Law Offices of Amitai Schwartz, Emeryville, CA; John H. Scott (briefed), Lizabeth N. de Vries, Scott Law Firm, San Francisco, CA; Thomas P. Greerty, Martinez, CA, for Plaintiffs–Appellees.

Appeal from the United States District Court for the Northern District of California, Susan Illston, District Judge, Presiding. D.C. No. 3:07–cv–05483–SI.

Before: ARTHUR L. ALARCÓN, DIARMUID F. O'SCANNLAIN, and N. RANDY SMITH, Circuit Judges.

OPINION

N.R. SMITH, Circuit Judge:

A police officer, who violates another's constitutional right, will receive qualified immunity from suit under 42 U.S.C. § 1983 if the right the officer violated was not protected by clearly established law at the time he acted. See Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Since 1998, clear precedent has established that a police officer violates the Fourteenth Amendment due process clause if he kills a suspect when acting with the purpose to harm, unrelated to a legitimate law enforcement objective. Therefore, once a jury has found (with reasonable support in the evidence) such a due process violation on the part of the officer, he may not successfully assert qualified immunity in a post-verdict motion for judgment as a matter of law.

District courts have broad discretion when awarding attorneys' fees. However, due to an intervening change in our case law, the district court's conclusion that it could not consider amounts discussed in settlement negotiations in determining the amount of a reasonable fee award is no longer in line with Ninth Circuit cases.

We therefore affirm the district court in part, and we must reverse and remand in part.

I. Facts

Around 2:00 a.m. on March 23, 2006, dispatch notified California Highway Patrol (CHP) officers Stephen Markgraf and Nathan Johnson that police were pursuing a stolen vehicle into their Oakland division area. The driver of the stolen vehicle was traveling without headlights at high speeds, using all lanes of the freeway. The driver, later identified as Karen Eklund, was the vehicle's only occupant. Markgraf and Johnson intercepted and began following Eklund. When Eklund began to cross the Bay Bridge, Officer Sarah Wrathall and Sergeant Laura Clare of the CHP's Golden Gate Division in San Francisco also joined the pursuit. Eklund crossed 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, Eklund turned onto a street that dead ended into a cul-de-sac and hit a chain link fence. Markgraf stopped his vehicle broadside of Eklund's and some thirty feet behind it, followed by Wrathall, Clare, and other patrol cars. Markgraf got out of his vehicle and drew his weapon, leaving Johnson (who was trying to remove his seatbelt) still in the police unit. Markgraf then ran to the right of Eklund's vehicle to take cover by a parked car.

At that point, Eklund backed into Markgraf and Johnson's police car. She then drove forward and stopped. While Eklund's car was stopped, Markgraf looked inside and did not see any weapons. He then tried unsuccessfully to open the door and break a window while yelling at Eklund to turn off the car, because the chase was over. In response, Eklund yelled “Fuck you,” reversed again, and rammed the police car two more times. As the confrontation between Eklund and Markgraf escalated, Clare—who was the supervisor in charge of the San Francisco area that night—yelled “cross-fire” and “get on the sidewalk guys” to get all the officers on the same side of the street. Approximately ten seconds later, Markgraf opened fire on Eklund. After the shooting started, Clare told Markgraf to “stop.” Nevertheless, Markgraf continued, firing twelve rounds at Eklund through the passenger-side window and emptying the magazine of his gun. When he stopped to reload, Clare told Markgraf, “Enough.” Although other officers had their guns drawn, no one else fired a shot. Twenty-five seconds elapsed from the first ramming to any firing.

A.D. and J.E. (collectively, “Plaintiffs”) are Eklund's children; they were twelve and ten years old, respectively, at the time of their mother's death. They brought suit in state court alleging violations of their Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983 and raising one state law cause of action for wrongful death. The action was removed to federal court. Plaintiffs then abandoned all claims except their Fourteenth Amendment due process claim.

Markgraf moved for summary judgment, asserting that he was entitled to qualified immunity. The district court denied the motion. The court reasoned that, based on the Plaintiffs' showing, a reasonable jury could find that Markgraf used deadly force with a purpose to harm Eklund unrelated to a legitimate law enforcement objective. Such conduct violated the clearly established law set out in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Additionally, the court concluded that Plaintiffs' case was analogous to “obvious” cases, where there does not need to be a materially similar case for the right to be clearly established.

Just before trial, the court granted Plaintiffs' motions to exclude certain evidence during the liability phase of the trial. First, the court agreed to exclude the expert testimony of a medical doctor who would have testified as to her opinion that Eklund was intoxicated with amphetamines during the incident. Second, the court granted Plaintiffs' motion in limine to exclude evidence of Eklund's arrest record and criminal history.

At trial, Markgraf's intent in shooting Eklund was at issue. Markgraf testified that he shot Eklund, because he was afraid she would succeed in getting past the parked vehicles and thereafter run over the other officers at the scene. He also thought he saw two officers behind Eklund's vehicle. Other officers testified they were all on the sidewalk, though Wrathall said she was standing behind the vehicle. Some testified that the vehicle was stopped or moving forward at the time of the shooting; others testified they couldn't recall. None of the officers believed Eklund's vehicle posed an immediate threat to their lives.

At the close of Plaintiffs' case-in-chief, Markgraf moved for judgment as a matter of law (JMOL), but the district court denied the motion. After eleven days of trial, the jury returned a verdict in favor of Plaintiffs, and awarded $30,000 to each of them in a bifurcated damages phase. Markgraf then renewed his JMOL motion. The district court also denied that motion.

Drawing all inferences in favor of the verdict, the district court found that the jury could have reasonably concluded that Markgraf acted with a purpose to harm unrelated to a legitimate law enforcement objective based on evidence that (1) Eklund's car was contained in a dead-end street; (2) Eklund refused to get out of her car and repeatedly said, “Fuck you” to Markgraf; (3) the officers were positioned such that they were not in the path of Eklund's car; (4) other officers testified they did not feel threatened nor did they perceive an immediate threat at the time of the shooting; (5) five other officers had their guns drawn but none fired other than Markgraf; (6) Eklund's car was either stopped or going forward at the time of the shooting; (7) the location of Eklund's car was not consistent with Markgraf's testimony; and (8) Markgraf shot Eklund twelve times, emptying his gun.

The district court also granted Plaintiffs' motion for attorneys' fees, awarding $489,631 in fees and $6,402.59 in costs for work on the merits; and $63,490 in fees and $337.86 in costs for work done on the fee petition. The court also granted post judgment interest.

Markgraf timely appealed (1) the denial of qualified immunity; (2) the verdict, based on the exclusion of evidence of Eklund's amphetamine intoxication and criminal history, and failure to give his proposed instructions; (3) the denial of his motion for summary judgment; ¹ and (4) the award of attorneys' fees.

When we first heard Markgraf's appeal, we reversed the denial of qualified immunity in his renewed motion for JMOL. A.D. v. Markgraf, 636 F.3d 555, 562 (9th Cir.2011), withdrawn by676 F.3d 868 (9th Cir.2012). Consistent with our decision in favor of Markgraf, we vacated the district court's award of attorneys' fees. Id. Plaintiffs filed a petition for rehearing. After consideration of the petition, we withdrew our original opinion and ordered the parties to submit supplemental briefs addressing two issues. A.D., 676 F.3d 868. First, we asked “what degree of deference, if any, should th[e] court give the jury's implicit finding that [Markgraf] used deadly force with the purpose to cause harm unrelated to a legitimate law enforcement objective, and if deference is due, how does this affect the availability of qualified immunity in this case?” Id. Second, we asked “[d]oes the subjective requirement in this case that [Markgraf] act with a purpose to harm unrelated to a legitimate law enforcement objective in order to violate [Plaintiffs'] Fourteenth Amendment right to familial association affect the qualified immunity inquiry?” Id. We held oral argument addressing these issues...