Metropolitan News-Enterprise


Thursday, April 7, 2011


Page 3


CHP Officer Held Not Liable for Fatal Shooting at End of Car Chase


By Kenneth Ofgang, Staff Writer


A California Highway Patrol officer has qualified immunity from liability for shooting a woman who led police on a high-speed chase across the Bay Bridge, then rammed their patrol vehicles, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court overturned a judgment for $60,000 in damages and more than $500,000 in costs and attorney fees in favor of the children of Karen Eklund, a 31-year-old fugitive who was facing a likely prison sentence when she was killed.

A jury awarded her now-teenage children—who had been in foster care for the previous six years, part of which Eklund spent in prison on drug and theft charges—$30,000 each as compensation for the loss of their mother. But Judge Pamela Ann Rymer, writing for the Ninth Circuit, said Officer Stephen Markgraf did not violate a clearly established legal right.

“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 high-speed chase and who was using her car as a weapon shocked the conscience.”

The testimony was that Eklund, of Antioch, was wanted for identity theft when the officers spotted her in a stolen car in the Contra Costa County town of Clayton in March 2006. She fled and they pursued her along several highways to the Bay Bridge, reaching speeds of 100 mph, before the chase ended in a cul-de-sac in San Francisco’s Mission Terrace neighborhood.

Officers said she slammed the car into patrol cruisers three times before Markgraf opened fire at the vehicle, hitting her about 12 times. 

Markgraf acknowledged that Eklund was unarmed and her car was not moving when she was shot. He said he fired at Eklund, who was repeatedly swearing, to protect the other officers who stood around her car because he feared she was about to run two of them down, even though five other officers had guns drawn and did not shoot.

U.S. District Judge Susan Ilston of the Northern District of California denied the defendants’ motion for summary judgment, and their motion for judgment at the close of the evidence. She reasoned that there was sufficient evidence for jurors to find that Markgraf used excessive force for reasons unrelated to a legitimate law enforcement objective.

Rymer, however, said that for purposes of the qualified immunity analysis, “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.”

She went on to say:

“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 [the plaintiffs’] constitutional rights.”

Prior cases involving wrongful death following high-speed chases all involved bystanders, not suspects, the judge noted.

Senior Judge Arthur Alarcon and Judge N. Randy Smith concurred in the opinion.

The case is A.D. v. Markgraf, 09-16460.


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