A. D. v. State of Calif. Highway Patrol

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

A. D., a Minor; J. E., a Minor; SUE No. 09-16460

CASEY,

Plaintiffs-Appellees, D.C. No.

3:07-cv-05483-SI

v.

STATE OF CALIFORNIA HIGHWAY

PATROL,

Defendant,

and

STEPHEN MARKGRAF,

Defendant-Appellant.

2 A.D. V. CALIFORNIA HIGHWAY PATROL

A. D., a Minor; J. E., a Minor; SUE No. 09-17635

CASEY,

Plaintiffs-Appellees, D.C. No.

3:07-cv-05483-SI

v.

STATE OF CALIFORNIA HIGHWAY OPINION

PATROL,

Defendant,

and

STEPHEN MARKGRAF,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted

September 18, 2012—San Francisco, California

Filed April 3, 2013

Before: Arthur L. Alarcón, Diarmuid F. O’Scannlain,

and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

A.D. V. CALIFORNIA HIGHWAY PATROL 3

SUMMARY*

Civil Rights

The panel affirmed the district court’s denial of

defendant’s motion for judgment as a matter of law in a 42

U.S.C. § 1983 action and reversed the district court’s award

of attorneys’ fees and remanded.

Plaintiffs alleged that police officer Stephen Markgraf

violated federal and state law when he shot and killed their

mother Karen Eklund at the end of a high-speed chase. The

panel held that it was clearly established that a police officer

violates the Fourteenth Amendment due process clause if he

kills a suspect when acting with the purpose to harm,

unrelated to a legitimate law enforcement objective.

Determining that the jury reasonably found that Markgraf

shot Eklund with a purpose to harm unrelated to a legitimate

law enforcement objective, the panel held that Markgraf

could not assert qualified immunity in a post-verdict motion

for judgment as a matter of law.

The panel also held that due to an intervening change in

the law, the district court’s conclusion that it could not

consider amounts discussed in settlement negotiations in

determining the amount of a reasonable attorneys’ fee award

was no longer in line with Ninth Circuit cases. The panel

reversed the fee award and remanded for a determination of

a reasonable fee in light of In re Kekauoha-Alisa, 674 F.3d

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 A.D. V. CALIFORNIA HIGHWAY PATROL

1083, 1093-94 (9th Cir. 2012), and Ingram v. Oroudjian, 647

F.3d 925, 927 (9th Cir. 2011).

COUNSEL

Edmund G. Brown, Jr., James M. Schiavenza, Paul T.

Hammerness, Tom Blake (briefed), and John P. Devine

(briefed and argued), Office of the Attorney General of

California, San Francisco, California, for Defendant-

Appellant.

Amitai Schwartz (briefed and argued), Moira Duvernay, Law

Offices of Amitai Schwartz, Emeryville, California; John H.

Scott (briefed), Lizabeth N. de Vries, Scott Law Firm, San

Francisco, California; Thomas P. Greerty, Martinez,

California, for Plaintiffs-Appellees.

OPINION

N.R. SMITH, Circuit Judge:

A police officer, who violates another’s constitutional

right, will receive qualified immunity from suit under

42 U.S.C. § 1983 if the right the officer violated was not

protected by clearly established law at the time he acted. See

Pearson v. Callahan, 555 U.S. 223, 232 (2009). Since 1998,

clear precedent has established that a police officer violates

the Fourteenth Amendment due process clause if he kills a

suspect when acting with the purpose to harm, unrelated to a

legitimate law enforcement objective. Therefore, 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

A.D. V. CALIFORNIA HIGHWAY PATROL 5

successfully assert qualified immunity in a post-verdict

motion for judgment as a matter of law.

District courts have broad discretion when awarding

attorneys’ fees. However, due to an intervening change in

our case law, the district court’s conclusion that it could not

consider amounts discussed in settlement negotiations in

determining the amount of a reasonable fee award is no

longer in line with Ninth Circuit cases.

We therefore affirm the district court in part, and we must

reverse and remand in part.

I. Facts

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, was the vehicle’s only occupant.

Markgraf and Johnson intercepted and began following

Eklund. When Eklund began to cross the Bay Bridge, Officer

Sarah Wrathall and Sergeant Laura Clare of the CHP’s

Golden Gate Division in San Francisco also joined the

pursuit. Eklund crossed 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, 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

6 A.D. V. CALIFORNIA HIGHWAY PATROL

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.

Twenty-five seconds elapsed from the first ramming to any

firing.

A.D. and J.E. (collectively, “Plaintiffs”) are Eklund’s

children; they 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.

A.D. V. CALIFORNIA HIGHWAY PATROL 7

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. Such conduct violated

the clearly established law set out in County of Sacramento v.

Lewis, 523 U.S. 833 (1998). Additionally, the court

concluded that Plaintiffs’ case was analogous to “obvious”

cases, where there does not need to be a materially similar

case for the right to be clearly established.

Just before trial, the court granted Plaintiffs’ motions to

exclude certain evidence during the liability phase of the trial.

First, the court agreed to exclude the expert testimony of a

medical doctor who would have testified as to her opinion

that Eklund was intoxicated with amphetamines during the

incident. Second, the court granted Plaintiffs’ motion in

limine to exclude evidence of Eklund’s arrest record and

criminal history.

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. He

also thought he saw two officers behind Eklund’s vehicle.

Other officers testified they were all on the sidewalk, though

Wrathall said she was standing behind the vehicle. Some

testified that the vehicle was stopped or moving forward at

the time of the shooting; others testified they couldn’t recall.

None of the officers believed Eklund’s vehicle posed an

immediate threat to their lives.

8 A.D. V. CALIFORNIA HIGHWAY PATROL

At the close of Plaintiffs’ case-in-chief, Markgraf moved

for judgment as a matter of law (JMOL), but the district court

denied the motion. After eleven days of trial, the jury

returned a verdict in favor of Plaintiffs, and awarded $30,000

to each of them in a bifurcated damages phase. Markgraf

then renewed his JMOL motion. The district court also

denied that motion.

Drawing all inferences in favor of the verdict, the district

court found that the jury could have reasonably concluded

that Markgraf acted with a purpose to harm unrelated to a

legitimate law enforcement objective based on evidence that

(1) Eklund’s car was contained in a dead-end street; (2)

Eklund refused to get out of her car and repeatedly said,

“Fuck you” to Markgraf; (3) the officers were positioned such

that they were not in the path of Eklund’s car; (4) other

officers testified they did not feel threatened nor did they

perceive an immediate threat at the time of the shooting; (5)

five other officers had their guns drawn but none fired other

than Markgraf; (6) Eklund’s car was either stopped or going

forward at the time of the shooting; (7) the location of

Eklund’s car was not consistent with Markgraf’s testimony;

and (8) Markgraf shot Eklund twelve times, emptying his

gun.

The district court also granted Plaintiffs’ motion for

attorneys’ fees, awarding $489,631 in fees and $6,402.59 in

costs for work on the merits; and $63,490 in fees and $337.86

in costs for work done on the fee petition. The court also

granted post-judgment interest.

Markgraf timely appealed (1) the denial of qualified

immunity; (2) the verdict, based on the exclusion of evidence

of Eklund’s amphetamine intoxication and criminal history,

A.D. V. CALIFORNIA HIGHWAY PATROL 9

and failure to give his proposed instructions; (3) the denial of

his motion for summary judgment;1 and (4) the award of

attorneys’ fees.

When we first heard Markgraf’s appeal, we reversed the

denial of qualified immunity in his renewed motion for

JMOL. A.D. v. Markgraf, 636 F.3d 555, 562 (9th Cir. 2011),

withdrawn by 676 F.3d 868 (9th Cir. 2012). Consistent with

our decision in favor of Markgraf, we vacated the district

court’s award of attorneys’ fees. Id. Plaintiffs filed a petition

for rehearing. After consideration of the petition, we

withdrew our original opinion and ordered the parties to

submit supplemental briefs addressing two issues. A.D.,

676 F.3d 868. First, we asked “what degree of deference, if

any, should th[e] court give the jury’s implicit finding that

[Markgraf] used deadly force with the purpose to cause harm

unrelated to a legitimate law enforcement objective, and if

deference is due, how does this affect the availability of

qualified immunity in this case?” Id. Second, we asked

“[d]oes the subjective requirement in this case that

[Markgraf] act with a purpose to harm unrelated to a

legitimate law enforcement objective in order to violate

[Plaintiffs’] Fourteenth Amendment right to familial

association affect the qualified immunity inquiry?” Id. We

held oral argument addressing these issues on September 18,

2012.

1

We do not need to address Markgraf’s appeal of the district court’s

denial of his summary judgment motion, because a jury has rendered a

verdict since Markgraf made the motion. See Ortiz v. Jordan, 131 S. Ct.

884, 888–89 (2011).

10 A.D. V. CALIFORNIA HIGHWAY PATROL

II. Analysis

A. The district court properly denied Markgraf’s

renewed motion for JMOL.2

We review the district court’s denial of Markgraf’s

assertion of qualified immunity as raised in a renewed motion

for JMOL de novo. Pavao v. Pagay, 307 F.3d 915, 918 (9th

Cir. 2002). “Such a judgment is proper if the evidence,

construed in the light most favorable to the nonmoving party,

permits only one reasonable conclusion, and that conclusion

is contrary to the jury’s verdict.” Id. Thus, although under de

novo review we do not defer to the district court’s decision to

deny Markgraf’s motion, we give significant deference to the

jury’s verdict and to the nonmoving parties (here, Plaintiffs)

when deciding whether that decision was correct. Under this

framework, we affirm the district court, because it properly

followed that standard of review when it denied Markgraf’s

renewed motion for JMOL.

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.

Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir.

2

Markgraf preserved his position on qualified immunity—renewed in

a Rule 50(b) motion after trial—by bringing a Rule 50(a) motion for

JMOL before the case was submitted to the jury. See Tortu v. Las Vegas

Metro. Police Dep’t, 556 F.3d 1075, 1083 (9th Cir. 2009) (noting that

when a qualified immunity claim cannot be resolved before trial due to a

factual conflict, a litigant must make a Rule 50(a) motion to preserve the

issue for review on a Rule 50(b) motion).

A.D. V. CALIFORNIA HIGHWAY PATROL 11

1991); see also Moreland v. Las Vegas Metro. Police Dep’t,

159 F.3d 365, 371 (9th Cir. 1998). Police conduct violates

due process if it “shocks the conscience.” Porter v. Osborn,

546 F.3d 1131, 1137 (9th Cir. 2008). Conscience-shocking

actions are those taken with (1) “deliberate indifference” or

(2) a “purpose to harm . . . unrelated to legitimate law

enforcement objectives.” Id. The lower “deliberate

indifference” standard applies to circumstances where “actual

deliberation is practical.” Wilkinson v. Torres, 610 F.3d 546,

554 (9th Cir. 2010). However, in circumstances where an

officer cannot practically deliberate, such as where “a law

enforcement officer makes a snap judgment because of an

escalating situation, his conduct may only be found to shock

the conscience if he acts with a purpose to harm unrelated to

legitimate law enforcement objectives.” Id. The parties do

not dispute that the heightened “purpose to harm” standard

applies to this case.

Illegitimate law enforcement objectives include

“bully[ing] a suspect or get[ting] even.” Id. (internal

quotation marks omitted). Moreover, even if the officer

“ultimately effectuat[es] an arrest,” he still violates the due

process clause if he used force with only an illegitimate

purpose in mind. See Porter, 546 F.3d at 1140. 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.

The jury thus rendered a verdict for Plaintiffs. In his renewed

motion for JMOL, Markgraf then again asserted qualified

immunity as a defense.

12 A.D. V. CALIFORNIA HIGHWAY PATROL

A defendant will receive qualified immunity if one of two

conditions are met. First, immunity will be applied if the

plaintiff has not “alleged” or “shown” facts that would make

out a constitutional violation. Pearson, 555 U.S. at 232.

Second, even if the Plaintiff has shown such a violation, the

defendant is entitled to qualified immunity if the

constitutional right allegedly violated was not “‘clearly

established’ at the time of defendant’s alleged misconduct.”

Id. Because we can proceed through these analytical steps in

any order, id. at 236, we first address whether the

constitutional law governing Margkraf’s conduct was clearly

established when he shot Eklund.

1. On March 23, 2006, it was clearly established

law that a state official, who acts with a

purpose to harm unrelated to a legitimate law

enforcement objective, violates the Fourteenth

Amendment due process clause.

By 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. In 1998, the

Supreme Court held that a police officer, who acts under

circumstances where “actual deliberation is [not] practical,”

violates due process if he acts with a “purpose to cause harm

unrelated to the legitimate object of arrest.” Lewis, 523 U.S.

at 836, 851; see also Moreland, 159 F.3d at 372; cf. Porter,

546 F.3d at 1137 (concluding that deliberation was not

practical in a “rapidly escalating . . . confrontation”). Since

Lewis, we also identified (in addition to arrest) self-protection

and the protection of the public as legitimate objectives that

could justify a police officer acting with the purpose to harm.

A.D. V. CALIFORNIA HIGHWAY PATROL 13

See Moreland, 159 F.3d at 373. Taken together, these cases

established that a police officer who acted with the purpose

to harm a civilian, unrelated to the legitimate law

enforcement objectives of arrest, self-defense, or the defense

of others, violated the Fourteenth Amendment due process

clause.3

To be clearly established, the foregoing law only must

have been “sufficiently clear that a reasonable official would

understand that what he [was] doing violate[d] [a

constitutional] right.” Hope v. Pelzer, 536 U.S. 730, 739

(2002). Reasonableness is not a demanding standard. The

“state of the law” was sufficiently clear if it gave “fair

warning” to an officer that his conduct was unconstitutional.

Id. at 741.

After Lewis and Moreland, no reasonable officer could

fairly have believed that it was constitutional to shoot a

civilian with the subjective purpose to harm unrelated to a

legitimate objective. Even if those cases are factually

distinguishable, that is irrelevant in this case, because the

constitutional rule they established “appl[ies] with obvious

clarity to [Markgraf’s conduct].” Id. (quoting United States

v. Lanier, 520 U.S. 259, 271 (1997)). Further, 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

3

Notably, in Porter, the parties agreed that this law was clearly

established by 2003—nearly three years before Markgraf shot Eklund.

See Porter, 546 F.3d at 1140. Additionally, we acknowledge that there

may be other “legitimate law enforcement objectives” in addition to those

listed. However, neither Markgraf nor the Plaintiffs has suggested any.

Markgraf only identifies one “legitimate purpose” on appeal: protecting

the safety of other officers.

14 A.D. V. CALIFORNIA HIGHWAY PATROL

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. See

Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam).

This is one of those rare cases in which the constitutional

right at issue is defined by a standard that is so “obvious” that

we must conclude—based on the jury’s finding—that

qualified immunity is inapplicable, even without a case

directly on point. See Hope, 536 U.S. at 740–41 (recognizing

that “a general constitutional rule already identified in the

decisional law may apply with obvious clarity to the specific

conduct in question”). Accordingly, we conclude that it was

clearly established law when Markgraf shot Eklund that

acting with the purpose to harm unrelated to a legitimate law

enforcement objective violated due process.

Markgraf argues that the “purpose to harm” standard

outlined in Lewis and Moreland cannot be “clearly

established,” because the standard is too general. He cautions

that the Supreme Court has “repeatedly told courts—and the

Ninth Circuit in particular—not to define clearly established

law at a high level of generality.” Ashcroft v. al-Kidd, 131

S. Ct. 2074, 2084 (2011) (internal citation omitted).

However, we do not anticipate that our analysis will add to

the Supreme Court’s tally of such cases.

The Supreme Court has rejected proposed definitions of

clearly established law as “too general” when they merely

restate the applicable constitutional standard. For example,

in al-Kidd the Supreme Court indicated that “[t]he general

proposition . . . that an unreasonable search or seizure violates

the Fourth Amendment is of little help in determining

whether the violative nature of particular conduct is clearly

established.” al-Kidd, 131 S. Ct. at 2084. Similarly, in

A.D. V. CALIFORNIA HIGHWAY PATROL 15

Anderson v. Creighton, 483 U.S. 635, 639 (1987), the Court

acknowledged that “the right to due process of law is quite

clearly established by the Due Process Clause, and thus there

is a sense in which any action that violates that Clause . . .

violates a clearly established right.” The Court then rejected

the notion that the law, defined at such a level of generality,

was “clearly established” for qualified immunity purposes.

Rather, to be clearly established, “in the light of pre-existing

law the unlawfulness must be apparent.” Id. at 640.

Applying the principles of al-Kidd and Anderson to this

case, we could not say that it is clearly established law (for

purposes of qualified immunity) that whatever “shocks the

conscience” violates due process. However, the Supreme

Court has defined the law of due process that governed

Markgraf’s conduct with more particularity. 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

16 A.D. V. CALIFORNIA HIGHWAY PATROL

established law and deny him qualified immunity.4 See

Anderson, 483 U.S. at 639–40.

2. The jury found that Markgraf violated

Plaintiffs’ constitutional rights.

Markgraf is not entitled to qualified immunity, because

Plaintiffs have shown that he violated the foregoing clearly

established law. The Supreme Court has formulated the

doctrine of qualified immunity to dispose of “insubstantial

claims” at the earliest stage of litigation possible. See Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982); Hunter v. Bryant,

502 U.S. 224, 227 (1991) (“[W]e repeatedly have stressed the

importance of resolving immunity questions at the earliest

possible stage in litigation.”). Thus, defendants typically

assert qualified immunity in a motion to dismiss or motion

for summary judgment. At those stages, a court may grant

4

In an Eighth Amendment case, the Ninth Circuit held that “the general

rule that prison officials cannot deliberately disregard a substantial risk of

serious harm to an inmate” was not sufficiently defined to be “clearly

established law.” Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043,

1050–51 (9th Cir. 2002). This was because, under the Eighth Amendment

standard, “it would not be clear to a reasonable prison official when the

risk of harm [from a decision] changes from being a risk of some harm to

a substantial risk of serious harm.” Id. Indeed the qualitative difference

between the degree of risk that will result in liability under the Eighth

Amendment’s standard, and that which will not, is a fact-bound inquiry.

However, we do not need to engage in the same sort of fact-bound inquiry

to analyze the Fourteenth Amendment due process clause violation in this

case. The standard for a due process violation—purpose to harm

unrelated to a legitimate law enforcement objective—does not contain

undefined qualitative elements (“substantial risk” and “serious harm”) like

the Eighth Amendment standard does. Although “legitimate” is such a

qualifier, we (and the district court) have adequately defined it for the

purposes of this case by naming specific “legitimate” objectives. See also

supra note 3.

A.D. V. CALIFORNIA HIGHWAY PATROL 17

qualified immunity if the plaintiffs have not made out a

constitutional violation, based on the facts alleged or

“shown.” See Pearson, 555 U.S. at 232. Here, Plaintiffs

have done more than “show” that Markgraf violated their due

process rights—they proved it to a jury. Therefore, the jury’s

verdict against Markgraf is sufficient to deny him qualified

immunity on this prong of the analysis.

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.”

Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 528

(1st Cir. 2009). According to the jury’s view of the facts,

Markgraf shot Eklund without a legitimate law enforcement

objective.5 We would not be deferring to that view if we now

5

Markgraf argues that we cannot determine, based on the jury’s verdict,

that he shot Eklund with the purpose to harm her unrelated to a legitimate

law enforcement objective. However, we can infer that the jury made this

finding by viewing the jury’s verdict in light of the jury instructions. See

Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to

follow its instructions.”). The jury instructions specified that the jury

should find that Markgraf violated Plaintiffs’ due process rights if he

“acted in a manner which shocks the conscience.” Consistent with the

clearly established law outlined above, supra Part II.A.1, the instructions

defined “shocks the conscience” as “act[ing] with a purpose to cause

[Eklund’s] death unrelated to the legitimate law enforcement purposes of

taking her into custody, self-defense, or the defense of others.” Having

received these instructions, the jury unanimously concluded that Markgraf

had violated Plaintiffs’ due process rights. Presuming that the jury

followed these instructions (Markgraf does not argue otherwise), we can

conclude that the jury found Markgraf shot Eklund for an illegitimate

18 A.D. V. CALIFORNIA HIGHWAY PATROL

held that Markgraf was entitled to qualified immunity,

because he could have believed a legitimate law enforcement

objective existed under the circumstances.6 Although such an

inquiry might be appropriate when a defendant asserts

qualified immunity in a motion for summary judgment or a

pre-verdict JMOL motion, the jury’s view of the facts must

govern our analysis once litigation has ended with a jury’s

verdict.7

purpose—a purpose other than taking her into custody, defending himself,

or defending other officers. Logically, the jury would have had to make

this finding in order to enter a verdict against Markgraf on Plaintiffs’ due

process claim. See infra note 6.

6

Our opinion in Sloman v. Tadlock supports this analysis. 21 F.3d 1462,

1465–66 (9th Cir. 1994). There, we discussed the effect a jury verdict

against a defendant on a First Amendment claim (which has a subjective

culpability standard) would have on the qualified immunity analysis. Id.

at 1468–69. At trial, the defendant’s subjective “motives for the actions

he took were at issue.” See id. at 1468. The jury found that the defendant

“intended to interfere with [Plaintiff]’s political activity and that it was a

substantial or motivating factor in his conduct.” Id. We held that, as a

result of the jury’s finding, “the district court could not have done other

than to conclude that a reasonable officer in [the defendant’s] place would

have known his conduct violated [the plaintiff’s] clearly established

constitutional rights.” Id. at 1469. Therefore, the defendant would not

have been entitled to qualified immunity, had the court faced this issue.

Likewise here, the jury’s verdict finding that Markgraf acted with a

subjective purpose that is prohibited by clearly established constitutional

law prohibits us from granting him qualified immunity. Consistent with

Sloman, this is so even if a reasonable officer could have shot Eklund with

the purpose to harm for some legitimate goal based on an objective view

of the facts.

7

In support of our analysis in our previous opinion, we cited Graham v.

Connor, 490 U.S. 386, 396–97 (1989) for the proposition that “we ignore

Markgraf’s subjective motives and consider his actions in light of the

totality of the circumstances.” A.D., 636 F.3d at 561. However, qualified

A.D. V. CALIFORNIA HIGHWAY PATROL 19

Markgraf also worries that “if the [court] looks to any

alleged [improper] motives [under the ‘purpose to harm’

prong],” as the jury’s verdict compels us to do here, “those

motives will necessarily preclude a subsequent determination

that anything could have been done with a legitimate law

enforcement objective.” To us, this is not a problem. In fact,

we approved of just such a result in Porter. There, we

acknowledged that an officer who used force against a

suspect to “teach him a lesson” or “get even” would violate

the Fourteenth Amendment due process clause under Lewis,

“even though [the officer was] ultimately effectuating an

arrest.” Porter, 546 F.3d at 1140–41 (quoting Davis v. Twp.

of Hillside, 190 F.3d 167, 172–73 (3d Cir. 1999) (McKee, J.,

concurring)). Thus, even if an officer’s use of force could be

justified after the fact by a legitimate objective (such as

effectuating arrest) he can still be held liable for a

constitutional violation if he used force for an illegitimate

purpose.8

immunity was not at issue in Graham. Rather, the Court was explaining

that, when determining whether a police officer used excessive force in

violation of the Fourth Amendment, the proper analysis of the

constitutional claim—not of qualified immunity—was objective.

Graham, 490 U.S. at 397. The passage we cited reads: “As in other

Fourth Amendment contexts, . . . the ‘reasonableness’ inquiry in an

excessive force case is an objective one: the question is whether the

officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them, without regard to their underlying intent

or motivation.” Id. Plainly, that statement only governs the analysis of

whether, in a Fourth Amendment excessive force case, the defendant used

a reasonable amount of force. Accordingly, this statement in Graham

does not affect our analysis of Markgraf’s qualified immunity defense.

8

In support of his argument, Markgraf cites two cases from other

circuits that do not apply to the issues raised in this appeal. In Steen v.

Myers, 486 F.3d 1017, 1023 (7th Cir. 2007), the Seventh Circuit reviewed

20 A.D. V. CALIFORNIA HIGHWAY PATROL

Markgraf is not without recourse just because the jury has

rendered a verdict against him. He could have directly

attacked the sufficiency of the evidence to support the jury’s

verdict on appeal, but he did not. However, even if he had

done so here, we agree with the district court that there was

sufficient evidence to support the jury’s verdict at trial. In

denying Markgraf’s renewed motion for JMOL, the district

court cited the following facts as supporting the verdict:

(1) Ms. Eklund’s car was contained in a dead-

end street; (2) Ms. Eklund refused to get out

of her car and repeatedly said “fuck you” to

Markgraf; (3) the officers were positioned

such that they were not in the path of Ms.

Eklund’s vehicle; (4) other officers at the

scene testified that they did not feel threatened

nor did they perceive an immediate threat at

the entry of summary judgment on a due process claim in favor of

defendants. After reviewing conflicting evidence about the defendant

officer’s alleged motive to harm the suspect against evidence of a

legitimate objective (pursuit after fleeing from a traffic stop), the court

concluded that there was not “sufficient evidence of some intent to harm

that goes beyond” the legitimate objective of pursuing a suspect who is

fleeing from a traffic stop. Id. at 1023–24. Rather than support

Markgraf’s argument, Steen undercuts it, by implying that evidence of an

intent to harm could override recognized legitimate law enforcement

objectives in establishing a due process violation. Similarly, Graves v.

Thomas, 450 F.3d 1215 (10th Cir. 2006) does not support Markgraf’s

argument. In Graves, the Tenth Circuit reviewed the district court’s grant

of summary judgment to the defendant police officer. Id. at 1220. The

panel affirmed, because the record supported, “in spades,” a “legitimate

object of arrest,” without “legitimately suggest[ing] an intent of [the

officer] to cause harm unrelated to the arrest.” Id. at 1223. Thus, Graves

does not address a case like the instant one where a jury has found that the

defendant acted with a purpose to harm, unrelated to a legitimate law

enforcement objective.

A.D. V. CALIFORNIA HIGHWAY PATROL 21

the time of the shooting; (5) five other officers

had guns drawn but no one other than Officer

Markgraf fired; (6) officers testified that Ms.

Eklund’s car was either stopped or going

forward at the time of the shooting; (7) the

location of the Eklund vehicle at the time of

the shooting was not consistent with

Markgraf’s testimony; and (8) Officer

Markgraf shot Ms. Eklund 12 times and

emptied his gun.

This evidence supports the reasonable inference that

Markgraf acted with the purpose to harm unrelated to a

legitimate law enforcement objective. That is sufficient to

sustain the verdict against Markgraf in the face of an attack

on the sufficiency of the evidence.

Therefore, we affirm the district court’s denial of

Markgraf’s renewed motion for JMOL. The jury 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. It was clearly

established before their encounter that such conduct violated

Plaintiffs’ substantive due process rights. Therefore,

Markgraf is not entitled to qualified immunity.

None of the qualified immunity cases Markgraf cites

control our decision, because none address the precise issue

in this case. Here, the nature of the constitutional claim

(containing a subjective element), and the case’s procedural

posture (raising qualified immunity in a post-verdict motion

for JMOL), requires deference to the jury’s findings that is

not present in cases with other constitutional liability theories

or where qualified immunity is asserted at a different stage of

22 A.D. V. CALIFORNIA HIGHWAY PATROL

litigation. See Branch v. Tunnell, 937 F.2d 1382, 1385–86

(9th Cir. 1991) (noting the tension that arises when applying

the qualified immunity framework to an underlying

constitutional violation with a subjective element), overruled

on other grounds by Gailbraith v. Cnty. of Santa Clara,

307 F.3d 1119, 1126 (9th Cir. 2002). For instance, unlike in

Fourth Amendment cases, Plaintiffs’ due process claim is

based on a subjective, rather than objective, standard of

culpability. Cf. Thompson v. Mahre, 110 F.3d 716, 721–23

(9th Cir. 1997). While in a Fourth Amendment case we could

choose not to accept the jury’s conclusion that the officer’s

conduct was unreasonable, here, we cannot disregard the

jury’s reasonable finding of fact that Markgraf acted with a

subjective bad intent.

Further, unlike a motion to dismiss or motion for

summary judgment, we must defer to the facts as they were

reasonably found by the jury—we do not draw our own

inferences from them. See Sloman, 21 F.3d at 1469

(confirming that the district court was correct to defer to the

jury’s finding that the defendant acted with unconstitutional

subjective intent when ruling on his qualified immunity

defense after a jury verdict); cf. Dunn v. Castro, 621 F.3d

1196, 1198–99 (9th Cir. 2010) (analyzing first prong of

qualified immunity analysis in motion to dismiss); Wilkinson,

610 F.3d at 554 (analyzing denial of qualified immunity in

motion for summary judgment).

Markgraf downplays the significance of the difference

between cases in which a jury has rendered a verdict and

those that are still at the motion to dismiss or summary

judgment stage. He argues that these cases are relevant,

because “[q]ualified immunity decisions on motion to dismiss

or summary judgment [both require] deference to the

A.D. V. CALIFORNIA HIGHWAY PATROL 23

plaintiff’s evidence or allegations.” These cases, he argues,

“demonstrate the proper use of underpinning facts when

reaching legal conclusions about the immunity issue.” His

analysis misses the point that courts must deal with the

underpinning facts differently once the jury has rendered a

verdict. See, e.g., Winarto v. Toshiba Am. Elecs.

Components, Inc., 274 F.3d 1276, 1283 (9th Cir. 2001).

In practice, our analysis might have the effect of

foreclosing qualified immunity defenses in similar cases

where a jury finds that a defendant has violated the

constitution by acting with a prohibited intent. However, we

do not hold that a court cannot conduct an objective qualified

immunity analysis after a jury verdict. McKenna v. Edgell,

617 F.3d 432, 438–46 (6th Cir. 2010) (reviewing qualified

immunity defense after jury verdict). Rather, post-verdict, a

court must apply the qualified immunity framework to the

facts that the jury found (including the defendant’s subjective

intent). McKenna, 617 F.3d at 437 (quoting Champion v.

Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004))

(“[W]here the legal question of qualified immunity turns

upon which version of the facts one accepts, the jury, not the

judge, must determine liability.”). Moreover, a defendant

who loses at trial has other options. He could directly

challenge the jury’s findings under the generally applicable

JMOL standards. The defendant could also attack the jury

instructions as inadequate statements of clearly established

law (e.g., the judge failed to identify a clearly established

legitimate law enforcement purpose that had some support in

the facts). See Medtronic, Inc. v. White, 526 F.3d 487, 493

(9th Cir. 2008). Thus, while our holding will narrow the

number of cases in which a defendant who loses at trial will

24 A.D. V. CALIFORNIA HIGHWAY PATROL

receive qualified immunity, it does not leave such a defendant

without recourse.9

In sum, we affirm the district court’s denial of Markgraf’s

renewed motion for JMOL. The district court correctly

concluded that, on the facts as the jury found them, Markgraf

violated clearly established law. Like the district court, we

also are bound by the jury’s findings.

B. We reverse and remand the fee award so that the

district court may consider the amounts of

Markgraf’s settlement offers in determining a

reasonable fee award.

The district court awarded Plaintiffs $553,120 in

attorneys’ fees under 42 U.S.C. § 1988(b) for hours expended

both on the merits and on the fee petition. We review that

award for abuse of discretion. McCown v. City of Fontana,

565 F.3d 1097, 1101 (9th Cir. 2009). “A district court by

definition abuses its discretion when it makes an error of

law.” Koon v. United States, 518 U.S. 81, 100 (1996). Due

to an intervening change in our case law, the district court

committed such an error here. Thus, we must reverse and

remand the fee award.

9

We also do not find it a “troubling issue” that, applying our holding,

different results might be obtained when qualified immunity is raised as

a post-verdict defense to both Fourth and Fourteenth Amendment claims

in the same case. This is simply a feature of the differing nature of the

constitutional claims—one with a subjective intent element and one

without. Cf. Crawford-El v. Britton, 523 U.S. 574, 584–94 (1998)

(rejecting a heightened pleading standard in cases alleging constitutional

violations with a subjective intent element even though this might increase

the number of subjective intent constitutional claims that would survive

to summary judgment in qualified immunity cases).

A.D. V. CALIFORNIA HIGHWAY PATROL 25

42 U.S.C. § 1988(b) authorizes courts to award a

reasonable attorneys’ fee to the prevailing party in an action

to enforce § 1983. We presume the “lodestar” amount (the

product of a reasonable number of hours worked multiplied

by a reasonable hourly rate) to be a reasonable fee. City of

Riverside v. Rivera, 477 U.S. 561, 568 (1986). Ultimately,

however, “[t]he reasonableness of the fee is determined

primarily by reference to the level of success achieved by the

plaintiff.” McCown, 565 F.3d at 1101–02 (9th Cir. 2008)

(citing Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)). In

evaluating the Plaintiffs’ level of success, district courts

should consider two questions: “First, did the plaintiff fail to

prevail on claims that were unrelated to the claims on which

he succeeded? Second, did the plaintiff achieve a level of

success that makes the hours reasonably expended a

satisfactory basis for making a fee award?” See id. at 1103

(quoting Hensley, 461 U.S. at 434) (internal quotation marks

omitted).

Markgraf argued both below and on appeal that Plaintiffs

achieved a low level of success by going to trial. He further

argues that the district court should have considered amounts

discussed in pre-trial settlement negotiations as evidence of

Plaintiffs’ limited success. The district court did not consider

these amounts, because it concluded that then-controlling

Ninth Circuit precedent interpreting Federal Rule of Evidence

408 precluded it from considering them.

By refusing to consider the amounts discussed in

settlement negotiations, the district court correctly applied

then-existing Ninth Circuit case law. See McCown, 565 F.3d

at 1104 n.4 (noting that courts “generally refrain from

referencing proposed settlement agreements in light of

Federal Rule of Evidence 408”). However, when reviewing

26 A.D. V. CALIFORNIA HIGHWAY PATROL

a district court’s decision for legal error, we must “apply the

law in effect at the time [we] render[] [our] decision.”

Henderson v. United States, 133 S. Ct. 1121, 1126 (2013).

Under the law now in effect, Federal Rule of Evidence 408

does not bar district courts in the Ninth Circuit from

considering amounts discussed in settlement negotiations as

evidence of the extent of the plaintiff’s success. See In re

Kekauoha-Alisa, 674 F.3d 1083, 1093–94 (9th Cir. 2012);

Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011).

Thus, the district court’s conclusion that it could not consider

those amounts, though appropriate at the time, has now

changed. We must then reverse the fee award and remand for

a determination of a reasonable fee in light of In re

Kekauoha-Alisa and Ingram.

On remand, the district court has the discretion (1) to

consider the amounts discussed in settlement negotiations, or

not; and (2) to give those amounts as much or as little weight

as it sees fit. See Lohman v. Duryea Borough, 574 F.3d 163,

169 (3d Cir. 2009) (acknowledging that settlement offers are

“clearly only one factor to be considered in the award of

fees,” and that the district court “is also free to reject such

evidence as not bearing on success”); cf. In re Kekauoha-

Alisa, 674 F.3d at 1093–94; Ingram, 647 F.3d 925 (adopting

Lohman’s holding that Federal Rule of Evidence 408 does not

bar consideration of settlement offers when making attorneys’

fee awards). It is not our place to opine as to how that

discretion should be exercised.

C. Consistent with our 2011 opinion, we reject

Markgraf’s other claims.

Previously, Markgraf made two other claims on appeal:

First, that the district court erred in excluding evidence of

A.D. V. CALIFORNIA HIGHWAY PATROL 27

Eklund’s drug usage and criminal history. Second, that the

district court erred by failing to include portions of

Markgraf’s jury instructions. Nothing has changed since we

denied both of these claims in our first opinion. A.D.,

636 F.3d at 560 nn.1–2. The evidence was properly excluded

because Eklund’s conduct was not in issue during the liability

phase of the trial. Further, the district court did not abuse its

discretion in formulating the jury instructions. “Having

correctly stated what the law was [under Lewis], the court

was not obliged to state what the law was not.” Id. at 560 n.1

(emphasis in original). 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.

III. Conclusion

The district court correctly denied Markgraf’s renewed

motion for JMOL, because the jury reasonably found that

Markgraf shot Eklund with a purpose to harm unrelated to a

legitimate law enforcement objective. However, we reverse

and remand the fee award to permit the district court to re-

determine the amount of a reasonable fee in light of an

intervening change in our case law.

AFFIRMED in part, REVERSED and REMANDED

in part. The parties shall bear their own costs on appeal. See

Fed. R. App. P. 39(a)(4).