Weekly Law Resume - May 2, 2013: Torts – Public Entity – Qualified Immunity for Police Officers

by Low, Ball & Lynch

A.D., et al. v. California Highway Patrol, et al.
United States Court of Appeals, Ninth Circuit (April 3, 2013)

The concept of qualified immunity involves shielding a police officer from a lawsuit where the officer’s actions do not violate clearly established federal rights. This case explores the scope of qualified immunity, post-verdict.

At around 2:00 a.m. on March 23, 2006, the California Highway Patrol (“CHP”) engaged in a high-speed chase with Karen Elkund. The chase, which topped 100 miles per hour, began in the East Bay, crossed the Bay Bridge, and ended on a dead-end street in San Francisco. Upon reaching the dead-end, Ms. Elkund backed her vehicle into one of the CHP patrol cars. She then drove forward and stopped. CHP Officer Stephen Markgraf looked inside her vehicle and did not see any weapons. He then tried unsuccessfully to open a car door and break a window, yelling at Ms. Elkund that the chase was over, and to turn the car off. Ms. Elkund responded with an expletive before reversing her car again, and ramming the same patrol car two more times.

Approximately 10 seconds later, Officer Markgraf discharged his firearm at Ms. Elkund, utilizing 12 rounds. He continued firing, after his supervisor told him to stop. None of the other officers on-scene had fired their guns; and none were in the path of Ms. Elkund’s vehicle. Ms. Elkund died.

Ms. Elkund’s children filed a lawsuit, alleging various causes of action. They eventually abandoned all claims but one: due process under the Fourteenth Amendment. At trial, the jury found in favor of the plaintiff. Before, during and after trial, Officer Markgraff filed various motions with the trial court, all asserting qualified immunity. Each of these motions (summary judgment, judgment as a matter of law, and renewed judgment as a matter of law) were denied. Officer Markgraff appealed these denials and other issues.

With respect to qualified immunity, the Ninth Circuit addressed two questions raised by the issue of qualified immunity: (1) was there a violation of a constitutional right; and (2) was the right clearly established at the time of the incident?

Before delving into these questions, the appellate panel reiterated that, in order for police conduct to violate due process, it must “shock the conscience.” In other words, the officer’s actions must involve (1) acts of deliberate indifference; or (2) acts intended to do harm, unrelated to any legitimate law enforcement objective. The appellate panel noted that only the second possibility (intent to harm unrelated to any legitimate law enforcement objective) was at-issue here. The court also specified that the “intent to harm” standard is a subjective standard of culpability.

Turning to whether there was a “clearly established” right at the time of the incident, the panel noted that as of the date of this shooting in 2006, the U.S. Supreme Court (in 1998) had ruled that an officer who acts with a “purpose to cause harm unrelated to the legitimate object of arrest” has violated due process under the Fourteenth Amendment. Following that decision, the Ninth Circuit (also in 1998) had ruled that legitimate objectives (such as self-protection or protection of the public), could justify law enforcement acting with intent to harm. Taken together, the appellate panel held that these decisions made it clear by 2006 that “no reasonable officer could fairly have believed that it was constitutional to shoot a civilian with the subjective purpose to harm unrelated to a legitimate objective.”

In reaching this conclusion, the panel also felt bound by the jury’s factual finding. Because the jury found that Officer Markgraff acted with intent to harm, without any legitimate law enforcement objective, the court felt compelled to find that any reasonable officer would have known that such conduct violated the due process clause. The panel also relied on the jury’s factual finding that a violation of a constitutional right (the first question in the inquiry) had occurred.

The Ninth Circuit then went one step further, finding that even if Officer Markgraff had attacked the jury’s verdict on insufficient evidence grounds, it would still uphold the verdict. The court found the evidence reasonably supported the inference that Officer Markgraff acted with intent to harm unrelated to any legitimate law enforcement objective.


Pursuant to A.D. v. California Highway Patrol, it will now be difficult, if not impossible, to obtain qualified immunity for “subjective intent” constitutional violations, where the jury has factually found such a violation. The court acknowledged this reality. The court did not foreclose the possibility of post-verdict qualified immunity for objective-standard cases.

For a copy of the complete decision see: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/04/03/09-16460%20web%20-%20corrected.pdf

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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