A.D. v. Markgraf, 636 F.3d 555

CHP officers Markgraf and Johnson pursued a stolen white Ford through Oakland after dispatch indicated high-speed pursuit; multiple CHP units joined the chase across the Bay Bridge into San Francisco.
The Ford, driven by Karen Eklund, rammed a patrol car multiple times; Markgraf exited his vehicle, positioned behind a parked car, and attempted to command the driver to stop.
Markgraf fired twelve shots through the passenger-side window at Eklund, after concluding she posed a danger to officers despite others not perceiving an imminent threat.
A.D. and J.E., ages 12 and 10 at the time, sued in state court (removed to federal court) asserting Fourteenth Amendment rights to familial association and related state death claims; most other claims were abandoned.
The district court denied summary judgment on qualified immunity; after trial, the jury found for plaintiffs on the § 1983 Fourteenth Amendment claim, awarded nominal damages in the damages phase, and Markgraf sought JMOL and later challenged attorneys’ fees.
The Ninth Circuit reversed in part, granting qualified immunity to Markgraf and vacating the attorneys’ fees award; the case focuses on whether the officer’s conduct violated the familial-association right and whether that right was clearly established.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Markgraf violated the Fourteenth Amendment familial association right	A.D. and J.E. contend Markgraf acted with a purpose to harm unrelated to law enforcement.	Markgraf argues the right was not clearly established and the totality of circumstances showed a mistaken but reasonable belief in lawful conduct.	Entitled to qualified immunity; no clearly established right under these facts.
Whether the right was clearly established for qualified immunity purposes	Plaintiffs assert prior cases gave notice that such use of deadly force in a high-speed chase violated familial rights.	Officer could have a reasonable, mistaken understanding under the circumstances; the right was not clearly established.	Right not clearly established; qualified immunity applies.
Whether the district court should have resolved the qualified-immunity issue at summary judgment	Qualified immunity should have barred the claim as a matter of law given the conduct.	Factual disputes precluded summary resolution; trial was required to resolve the standard.	Remanded/considered in light of subsequent ruling; but ultimately reversed on immunity count.
Whether attorneys’ fees should be awarded given the qualified-immunity ruling	Fees were proper post-trial; district court’s denial was in error.	Fees must be vacated when the underlying claim is barred by qualified immunity.	Vacated in light of the grant of qualified immunity.

County of Sacramento v. Lewis, 523 U.S. 833 (1998) (clear-conscience standard in rapid-police-action cases)
Porter v. Osborn, 546 F.3d 1131 (9th Cir. 2008) (applies heightened standard where deliberation is impractical)
Saucier v. Katz, 533 U.S. 194 (2001) (two-step qualified-immunity framework; later modified by Pearson)
Brosseau v. Haugen, 543 U.S. 194 (2004) (requires context-specific, not broad, evaluation of danger when assessing reasonableness)
Graham v. Connor, 490 U.S. 386 (1989) (objective reasonableness standard; totality of circumstances)
Harlow v. Fitzgerald, 457 U.S. 800 (1982) (official-capacity/qualified-immunity principles; immunity protects reasonable conduct)
Anderson v. Creighton, 483 U.S. 635 (1987) (objective reasonableness in obviously unlawful contexts; fair notice)
Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008) (case cited regarding notice and reasonable belief in legality)