Metropolitan News-Enterprise


Thursday, April 4, 2013


Page 1


Ninth Circuit Panel Says CHP Officer Liable for Fatal Shooting




A California Highway Patrol officer who shot a Bay Area woman 12 times after a high-speed chase is liable in her death and not entitled to qualified immunity, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

CHP Officer Stephen Markgraf, the panel said, violated Karen Eklund’s clearly established due process right to be free from a physical assault that lacked a “legitimate law enforcement objective.”

The ruling represents a turnaround by the court, which held in 2011 that Markgraf was immune because he made a good-faith, “split-second decision in dealing with someone who had just led police on a dangerous high-speed chase.”

The panel changed its view, Judge N. Randy Smith explained yesterday, because it concluded that the original ruling gave insufficient deference to the factual findings of the jury in the suit by Eklund’s daughters.

Wanted for Identity Theft

The testimony was that Eklund, 31, 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.

Markgraf acknowledged that Eklund was unarmed and her car was not moving when she was shot. He said he fired at the woman, 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.

The jury in the U.S. District Court for the Northern District of California awarded Eklund’s daughters, who were 12 and 10 when their mother was killed, $30,000 each in damages. Markgraf then moved for judgment as a matter of law based on qualified immunity, but Judge Susan Illston denied the motion, subsequently awarding the plaintiffs more than $500,000 in costs and attorney fees.

Evidence Held Sufficient

In denying the post-judgment motion, Ilston reasoned that there was sufficient evidence for jurors to find that Markgraf used excessive force for reasons unrelated to a legitimate law enforcement objective. Among other things, she cited the fact that no other officers were in the path of Eklund’s vehicle or felt it necessary to shoot, while Markgraf emptied his gun at the unarmed and stopped suspect who had no place to go because she was “contained in a dead-end street.”

In its previous opinion, the Ninth Circuit panel rejected the district judge’s analysis.  Judge Pamela Rymer wrote that “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.”

Rymer died five months after the case was decided, and Judge Diarmuid O’Scannlain joined Smith and Senior Judge Arthur Alarcon on the panel as it considered the plaintiffs’ motion for rehearing. Last year, the judges withdrew the opinion and asked the lawyers to brief the impact of the jury’s findings on the qualified immunity determination.

No Hypothesizing

Writing for the unanimous panel yesterday, Smith noted that the defense did not contest the sufficiency of the plaintiffs’ evidence. He concluded that “the verdict precludes us from hypothesizing about whether Markgraf could have believed that a legitimate law enforcement objective existed.” 

The jury, he said, “reasonably found that Markgraf shot Eklund with a purpose to harm unrelated to the legitimate law enforcement objectives of arrest, self-defense, or defense of others.”

The court did, however, order reconsideration of the attorney fee award.

Smith explained that when she ruled, Ilston said she could not consider the reasonableness of the defendant’s settlement offers in determining how much to award in fees. Later case law in the circuit holds otherwise, the appellate jurist said.

The case is A.D. v. California Highway Patrol, 09-16460.


Copyright 2013, Metropolitan News Company