TWO FATAL OIS’s INVOLVING VEHICLES – ONE IS GOOD; ONE IS NOT
By: Martin J. Mayer, General Counsel
California State Sheriffs’ Association
Within one month, the Ninth Circuit U.S. Court of Appeals, issued rulings in two cases which involved officers killing drivers of vehicles, based on their belief that there was an immediate threat to the officer or others. In one case, the Ninth Circuit agreed; in the other, the Court disagreed and, in addition, denied the officer qualified immunity from civil liability.
Gonzalez v. City of Anaheim – the “good” OIS
On May 13, 2013, in a 2-1 decision, the Ninth Circuit held, in the case of Gonzalez v. City of Anaheim, that the granting of summary judgment to the officer and the City was appropriate. While responding to a routine call, Anaheim Officers Daron Wyatt and Matthew Ellis, were cut off by a van driven by Adolf Anthony Sanchez Gonzalez. Gonzalez made an illegal left turn in front of them and pulled into a gas station. After clearing the call to which they were responding, they saw the van still at the gas station and, because of the “near collision, the officers ran the van’s plates through the mobile data terminal in their patrol car and discovered that the van had been involved in a prior narcotics stop.”
“[T]he officers decided to follow the van for a short way to see if any law enforcement action was necessary. A few blocks later, they noticed that the van was weaving within its lane and decided to pull it over.” The officers pulled in behind the van and after it stopped, they approached the vehicle from both sides. “Ellis approached on the driver’s side and Wyatt on the passenger’s side. As Wyatt approached, he saw Gonzalez reach back with his right hand toward the area between the driver and the passenger seats. Wyatt drew his gun and yelled at Gonzalez, warning that if Gonzalez reached back again, he would shoot him.” Ellis told Gonzalez, twice, to turn off the car, but Gonzalez failed to comply.
“Ellis noticed that Gonzalez appeared to be concealing a plastic baggy in his right hand, which he believed could contain drugs. Both officers told Gonzalez to open his hands. Gonzalez continued to ignore the officers’ orders.” The officers both reached into the vehicle and opened both doors. As Ellis struggled with Gonzalez, Wyatt radioed for assistance. Gonzalez moved his right hand toward his mouth, and his left hand toward the area between the seat and the door. Ellis believed Gonzalez was trying to swallow whatever was in his hand. Wyatt entered the van from the passenger side and, with both of his knees on the seat, began punching Gonzalez in the head and face.
“Still struggling with the officers, Gonzalez tried to shift the van into gear by slapping the gearshift with his right hand. Ellis, in an attempt to stop Gonzalez from shifting the van into gear, hit him on the back of the head three times with his flashlight. Gonzalez nonetheless managed to put the car into drive and pulled away with Wyatt still in the passenger seat. According to Wyatt, Gonzalez ‘floor[ed] the accelerator.’ Wyatt moved from his knees to a sitting position and yelled at Gonzalez to stop. Wyatt then attempted to knock the vehicle’s gearshift out of gear, but Gonzalez slapped his hand away. Without giving another warning, Wyatt pulled out his gun and shot Gonzalez in the head.”
Gonzalez’ family sued the City and both officers in federal court claiming excessive force was used in violation of the Fourteenth Amendment. The trial court granted the City’s motion for summary judgment, finding the force used was reasonable, and Gonzalez’ family appealed. On appeal, the Court analyzed the entire encounter to determine if the force used was “objectively reasonable in light of the facts and circumstances,” based on (1) the severity of the crime, (2) whether the suspect posed an immediate threat to the officers or others, and (3) whether the suspect was actively resisting arrest. Graham v. Connor, 490 U.S. 386 (1989).
Applying these factors to the circumstances facing Officers Ellis and Wyatt, the Court held that all three factors weighed in favor of a finding of reasonable force. First, the officers suspected Gonzalez of committing a felony grade drug offense, a serious crime. Second, Gonzalez put Officer Wyatt’s life at risk by accelerating the vehicle with him inside unsecured by a seatbelt. Third, Gonzalez was actively resisting arrest by refusing to obey the officers’ orders, by struggling against them, and in driving away from the scene.
The Court came to this conclusion after acknowledging the difficulty of evaluating excessive force cases resulting in death, at summary judgment, because typically the only testimony is that of the surviving officers. Accordingly, the officers’ testimony in these types of cases is heavily scrutinized for internal consistency. Here, the officers’ testimony was internally consistent, and any disputed facts (the distance the car travelled and its speed) were not material, because the threat to Officer Wyatt was present regardless of how fast or far the vehicle travelled.
A.D., a minor, v. State of California Highway Patrol – the “not good” OIS
One month earlier, on April 3, 2013, in a unanimous decision, the Ninth Circuit U.S. Court of Appeals held, in the case of A.D., a minor, et al v. CHP, that the officer violated the Fourteenth Amendment due process clause when acting with the purpose to harm, unrelated to a legitimate law enforcement objective, when he killed a suspect. Additionally, “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.”
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, crossed the Bay Bridge at over one hundred miles per hour and continued on city streets in San Francisco at speeds up to fifty miles per hour. Officer Sarah Wrathall and Sergeant Laura Clare of the CHP’s Golden Gate Division in San Francisco also joined the pursuit.
“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.”
Eklund’s children 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.”
“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.” However, “(n)one of the officers believed Eklund’s vehicle posed an immediate threat to their lives.” After eleven days of trial, the jury returned a verdict in favor of Plaintiffs. Markgraf timely appealed.
“Before discussing the qualified immunity defense, we must review the nature of Plaintiffs’ claim against Markgraf. Plaintiffs argue that, when Markgraf shot and killed Eklund, he violated their Fourteenth Amendment due process rights by interfering with the liberty interest they (like all children) have in the “companionship and society” of their mother. Police conduct violates due process if it ‘shocks the conscience.’ Conscience-shocking actions are those taken with (1) ‘deliberate indifference’ or (2) a ‘purpose to harm, unrelated to legitimate law enforcement objectives.’”
“The purpose to harm standard is a subjective standard of culpability. Consistent with this law, the district court instructed the jury that the “purpose to harm” standard governed Markgraf’s conduct. After being given that instruction, the jury found that Markgraf had acted with a purpose to harm unrelated to a legitimate law enforcement objective when he shot Eklund.”
As to the issue of qualified immunity for the officer, the Court held that qualified immunity applies when the officer violates a constitutional right, but “the constitutional right allegedly violated was not ‘clearly established’ at the time of defendant’s alleged misconduct.”
In this case, however, “(b)y March 23, 2006—the day that Markgraf shot Eklund—it was clearly established that a police officer, who acts with the purpose to harm unrelated to a legitimate law enforcement objective, violates the rights protected by the Fourteenth Amendment due process clause.” And, “because we are confined to the jury’s factual finding that Markgraf acted with a purpose to cause Eklund’s death unrelated to any legitimate law enforcement objective, we are essentially compelled to deny Markgraf qualified immunity—it would be ‘clear to a reasonable officer’ that killing a person with no legitimate law enforcement purpose violates the Constitution.”
“Markgraf argues that the “purpose to harm” standard . . . cannot be ‘clearly established,’ because the standard is too general.” In the past, “the Supreme Court has rejected proposed definitions of clearly established law as ‘too general’ when they merely restate the applicable constitutional standard.”
However, “a reasonable police officer in Markgraf’s position would have known that acting with a purpose to harm unrelated to a legitimate law enforcement objective (such as arrest, self-defense, or the defense of others) violates due process. Where, as here, a jury has determined that the officer acted with such a purpose, we must conclude that he violated clearly established law and deny him qualified immunity.”
“Markgraf argues that we should disregard the jury’s finding and analyze, objectively, whether he could have acted with a legitimate objective. However, the verdict precludes us from hypothesizing about whether Markgraf could have believed that a legitimate law enforcement objective existed. ‘[D]eference to the jury’s view of the facts persists throughout each prong of the qualified immunity inquiry.’”
The Court did state that “(a)lthough such an inquiry might be appropriate when a defendant asserts qualified immunity in a motion for summary judgment . . . , the jury’s view of the facts must govern our analysis once litigation has ended with a jury’s verdict.”
Conclusion
The determination of whether an officer’s use of force was justified, will always be analyzed using the criteria set forth by the U.S. Supreme Court in Graham v. Connor, cited above. The Court acknowledged that the use of force may be necessary depending on circumstances. It stated that “our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.”
Furthermore, “(b)ecause ‘[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,’ . . . its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” (Emphasis added.)
As such, all situations where officers use force will need to be justified; the greater the level of force used, the greater need be the justification. As reflected in the two cases set forth above, this is no easy task, but it is essential to be able to justify the force used. In theGonzalez case, the Court found all of the elements set forth in Graham v. Connor to be present: (1) a possible felony violation; (2) an immediate threat to the officer; and (3) Gonzalez actively resisting arrest and attempting to flee.
However, after a trial, the jury in A.D. v. CHP, concluded that, not only were the elements not present, but the officer’s use of deadly force was not to effect a legitimate law enforcement objective. Obviously, the testimony of the other officers present, regarding their belief that Ecklund did not pose a threat to them, was crucial in the jury’s findings.
One other factor must be considered and that is the timing of the motion for qualified immunity from civil liability. As the Court noted, it should be brought early in the litigation and it cannot be successfully brought after a jury’s verdict. These cases, once again, emphasize the point that securing proper legal advice and guidance, in a timely fashion, is of utmost importance to law enforcement. All actions of law enforcement will be “second guessed” and it is imperative that the actions of the officers can be justified under the circumstances confronting them at the time.
Martin J. Mayer is a name partner with the public sector law firm of Jones & Mayer, located in Fullerton, CA, and has served as General Counsel to CSSA for over 30 years.
[Original publication: CSSA Magazine, Vol. 28 No. 3, July 2013]