OPINION
California Highway Patrol Officer Stephen Markgraf appeals the judgment following a jury trial in favor of A.D. and J.E. on their claim under 42 U.S.C. § 1983 that Markgraf violated their Fourteenth Amendment right to a familial relationship when he shot and killed their mother, Susan Eklund, at the end of a high-speed chase. The district court denied Markgrafs motions for summary judgment and judgment as a matter of law on the ground of qualified immunity. While we decline to review the ruling on summary judgment, we believe Markgraf is entitled to qualified immunity. Accordingly, we reverse on this issue. Markgraf separately appeals the award of attorneys’ fees, which we vacate in light of our disposition on the merits.
I
Around 2:00 a.m. on March 23, 2006, California Highway Patrol (CHP) officers *558 Markgraf and Johnson, stationed in the Oakland division, were notified by dispatch that a stolen vehicle was being pursued into their area. The vehicle, a white Ford, was being driven at high speeds using all lanes of the freeway and without its headlights on. The driver, later identified as Karen Eklund, was the only occupant.
Markgraf and Johnson intercepted the Ford as it came into Oakland. Another CHP car with two officers joined the pursuit, and once the stolen vehicle began to cross the Bay Bridge, Officer Wrathall and Sergeant Clare of the Golden Gate Division in San Francisco also became involved. Clare was in charge of the San Francisco area that night. The Ford was traveling across the bridge at over one hundred miles per hour, and continued on city streets in San Francisco at speeds up to fifty miles per hour.
Eventually the Ford turned onto a street that curves right at the end into a cul-de-sac and hit a chain link fence. Markgrafs vehicle stopped broadside of the Ford and some thirty feet behind it, followed by the other patrol cars. Markgraf got out of his vehicle and ran to the right of the Ford to take cover by a parked car; Johnson was still in the police unit, trying to remove his seatbelt.
Eklund then backed into the police car. When she drove forward and stopped, Markgraf looked inside the Ford, did not see any weapons, and tried unsuccessfully to open the door and window while yelling at the driver that the chase was over and to turn off the car. The driver yelled “F- — • you” at Markgraf. Eklund reversed again and rammed the police car two more times. Markgraf then opened fire. He fired twelve shots at the driver through the passenger-side window. Clare told him to stop. Although other officers had their guns drawn, no one else fired a shot. Twenty-five seconds elapsed from the first ramming to firing.
Before the shooting Clare yelled “crossfire” and “get on the sidewalk guys” to get all the officers on the same side of the street. Markgraf testified that he shot Eklund because he was afraid she would succeed in getting past the parked vehicles and run over the other officers at the scene. He thought he caught two tan uniforms behind the white Ford. Other officers testified they were all on the sidewalk, though Wrathall said she was standing behind the Ford. Some testified that the Ford was stopped or moving forward at the time of the shooting; others testified they couldn’t recall. None of the officers believed the Ford posed an immediate threat to their lives.
A.D. and J.E. (collectively, “A.D.”), who were twelve and ten years old, respectively, at the time of their mother’s death brought suit in state court alleging violations of their Fourth and Fourteenth Amendment rights under § 1983 and the state wrongful death law. The action was removed, and all claims but the Fourteenth Amendment were abandoned.
Markgraf moved for summary judgment on qualified immunity. The district court noted that for purposes of a substantive due process claim under the Fourteenth Amendment, when government actors must act quickly without the benefit of reflection, as here, plaintiffs must show that they acted with “purpose to cause harm unrelated to the legitimate object of arrest” in order to establish behavior that shocks the conscience.
County of Sacramento v. Lewis,
The jury returned a verdict in favor of A.D. and J.E., and in a bifurcated damages phase awarded $30,000 to each. In the meantime, Markgraf moved for judgment as a matter of law at the close of A.D.’s case, and renewed it after his case and after trial. Drawing inferences in favor of the verdict, the court found that the jury could reasonably conclude that Markgraf acted with a purpose to harm unrelated to a legitimate law enforcement objective based on evidence that Eklund’s car was contained in a dead-end street; Eklund refused to get out of her car and repeatedly said “F— you” to Markgraf; the officers were positioned such that they were not in the path of the Ford; other officers testified they did not feel threatened nor did they perceive an immediate threat at the time of the shooting; five other officers had their guns drawn but none fired other than Markgraf; Eklund’s car was either stopped or going forward at the time of the shooting; the location of the Ford was not consistent with Markgrafs testimony; and Markgraf shot Eklund twelve times and emptied his gun. The court denied the JMOL for the same reasons it denied his motion for summary judgment.
The district court granted A.D.’s motion for attorneys’ fees, awarding $489,631 in fees for work on the merits; $6,402.59 in costs on the merits; and $63,490 in fees together with $337.86 in costs for the fee petition. The court also granted post-judgment interest.
Markgraf timely appealed the denial of qualified immunity; the verdict, based on exclusion of evidence of Eklund’s amphetamine intoxication and criminal record, and failure to give his proposed instructions; and the award of attorneys’ fees.
II
To the extent Markgraf appeals the denial of his motion for summary judgment, we shall not review it because meanwhile, there has been an adverse jury verdict.
See Ortiz v. Jordan,
— U.S. —,
To determine whether an officer such as Markgraf is entitled to qualified immunity, we inquire whether a constitutional right would have been violated on the facts alleged and whether the right was clearly established.
See Pearson v. Callahan,
The Fourteenth Amendment violation at issue in this case was the right of Eklund’s children to familial association with their mother. As the Supreme Court in
Lewis
and we in
Porter v. Osborn,
The jury was properly instructed on this standard from
Lewis.
1
As the jury resolved the facts against Markgraf, we take it as true that he acted with a purpose to cause harm unrelated to a legitimate law enforcement objective.
2
See Harper v. City of Los Angeles,
The district court assumed under the clearly-established prong that it would always be objectively unreasonable for an officer to violate this particular constitutional right. It held that no reasonable officer would believe it was constitutional to harm without a legitimate law enforcement objective. This seems to us to conflate the general standard — purpose to harm unrelated to a legitimate law enforcement objective — with the objective standard by which the officer’s conduct is to be measured.
See Saucier v. Katz,
We conclude that Markgraf might have had “a mistaken understanding as to whether a particular amount of force is legal in those circumstances.”
Saucier,
We are unaware of case law prior to March 23, 2006 in which an officer was held to have violated the plaintiffs 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 A.D.’s constitutional rights. That said, it is not necessary for precisely the same action to have been held unlawful.
Anderson v. Creighton,
The Fourteenth Amendment cases involving car chases concern an officer or fleeing suspect striking an innocent bystander or driver.
See, e.g., Lewis,
*562
For these reasons we conclude that Markgraf is entitled to qualified immunity. In light of this disposition, we vacate the award of attorneys’ fees.
See Norwood v. Vance,
REVERSED IN PART; VACATED IN PART.
Notes
. Markgraf argues that the court should have contrasted the Lewis standard with "deliberate indifference,” but having correctly stated what the law was, the court was not obliged to state what the law was not. Nor did the court abuse its discretion in failing to instruct on the "contours” of the standard as Markgraf proposed, because his instructions covered points that were not in issue.
. Markgraf's challenge to the court's refusal to admit testimony about Eklund's criminal background and substance abuse also fails, as the nature of her conduct was never in dispute.
Cf. Boyd v. City and County of San Francisco,
. To the extent the parties rely on Fourth Amendment cases such as Brosseau, they involve a different standard and, in any case, do not alter the analysis here.