A.D. v. Markgraf

• Decision Date: 11 April 2012
• Docket Number: 09–17635.,Nos. 09–16460,s. 09–16460
• Citation: 2012 Daily Journal D.A.R. 4563,676 F.3d 868,12 Cal. Daily Op. Serv. 3922
• Parties: A.D., a Minor; J.E., a Minor; Sue Casey, Plaintiffs–Appellees, v. Stephen MARKGRAF, Defendant–Appellant,andState of California Highway Patrol, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 3922

2012 Daily Journal D.A.R. 4563

676 F.3d 868

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

v.Stephen MARKGRAF, Defendant–Appellant,andState of California Highway Patrol, Defendant.

Nos. 09–16460

09–17635.

United States Court of Appeals, Ninth Circuit.

April 11, 2012.

Thomas Patrick Greerty, I, Esquire, Law Offices of Thomas P. Greerty, Martinez, CA, John H. Scott, Scott Law Firm, San Francisco, CA, Moira Isabel Duvernay, Amitai Schwartz, Law Offices of Amitai Schwartz, Emeryville, CA, for Plaintiffs–Appellees.

Thomas A. Blake, Belmont, CA, John P. Devine, AGCA–Office of the California Attorney General, San Francisco, CA, for Defendant.

D.C. No. 3:07–cv–05483–SI, Northern District of California, San Francisco.Before: ARTHUR L. ALARCÓN, DIARMUID F. O'SCANNLAIN,^* and N. RANDY SMITH, Circuit Judges.

ORDER

The Opinion filed April 6, 2011, and appearing at 636 F.3d 555 (9th Cir.2011), is withdrawn. Carver v. Lehman, 558 F.3d 869, 878–79 (9th Cir.2009) (a panel may withdraw an opinion sua sponte before the mandate issues). It may not be cited as precedent by or to this court or any district court of the Ninth Circuit. With the opinion withdrawn, the petition for rehearing en banc is moot. The parties may file a petition for rehearing and petition for rehearing en banc upon the filing of a new decision by the court.

The parties are ordered to submit supplemental briefs addressing the following issues and how they affect this case. The parties may, in their discretion, address other issues, but the court is primarily concerned with the issues enumerated below.

1. How should the qualified immunity framework be applied based on the jury's finding that Defendant–Appellant violated Plaintiffs–Appellees' Fourteenth Amendment right to a familial relationship? In other words, what degree of deference, if any, should this court give the jury's implicit finding that Defendant–Appellant 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? See Ryburn v. Huff, ––– U.S. ––––, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (per curiam); McKenna v. Edgell, 617 F.3d 432 (6th Cir.2010); Jennings v. Jones, 499 F.3d 2 (1st Cir.2007); Thompson v. Mahre, 110 F.3d 716 (9th Cir.1997).

2. Does the subjective requirement in this case that the Defendant–Appellant act with a purpose to harm unrelated to a legitimate law enforcement objective in order to violate the Plaintiffs–Appellees' Fourteenth Amendment right to familial association affect the qualified immunity inquiry? See Johnson v. Breeden, 280 F.3d 1308 (11th Cir.2002).

Defendant–Appellant shall file a supplemental brief not to exceed twenty pages within fourteen days from the date of this order. Plaintiffs–Appellees shall file a responsive brief not to exceed twenty pages within fourteen days from the date of the filing of Defendant–Appellant's supplemental brief. Defendant–Appellant may also file an optional reply...