the conduct was unlawful.
The City of Sierra Madre requested
amicus support from CPCA, which would
be submitted to an en banc panel (consisting of 11 members of the court) of the
Ninth Circuit, and the board of directors
approved the request. A primary part of
the argument by CPCA was that the ruling
necessarily meant that the three judge
panel was demanding that the police chief
have a firmer grasp of the nuances of federal constitutional law than that possessed
by a federal district judge who had ruled
in her favor. If Chief Diaz could be denied
qualified immunity on that basis, so could
any law enforcement officer in the state.
CPCA presented argument to the
court setting forth how such a decision
was contrary to law, and would negatively
impact police chiefs throughout the state.
The brief was submitted in May, 2013,
and we are awaiting the court’s decision
on the underlying issue.
Markgraf v. A.D.
The Markgraf case involved a California Highway Patrol Officer’s use of deadly
force, following a high speed chase across
the Golden Gate Bridge and through the
streets of San Francisco, ending in a culde-sac. After being blocked in by two CHP
vehicles, the driver crashed her car into
the police units three times in an effort to
flee. Officer Markgraf approached her on
foot, directed her to turn off the engine
and get out of her car, and she responded
with profanities and continued her efforts
to escape. At that time, believing two CHP
officers were standing behind her car, and
fearing that she would again attempt to
smash through the units, and possibly hit
the officers, he fired his weapon, striking
and killing her.
Following a trial before a federal jury,
the district court judge failed to consider
the issue of qualified immunity before
submitting the case to the jury, and the
jury concluded that there was “no legitimate law enforcement purpose” behind
Markgraf’s use of deadly force.
Following a request from the Office
10
California Police Chief | www.californiapolicechiefs.org
of the Attorney General, and the CHP,
the CPCA board of directors approved
the preparation of, and submission of, an
amicus brief to the United States Supreme
Court urging it to accept the case for
review. The focus of the brief was that “the
Ninth Circuit’s decision directly conflicts
with relevant decisions of [the Supreme]
Court relating to the objective standard
applicable to an officer’s exercise of discretion is the use of force in an apprehension
or arrest, and in the application of qualified immunity to such actions.”
We argued further that “fundamental ways in which the Ninth Circuit’s
published opinion goes awry is in its
application of a subjective standard and its
wholesale reliance on the jury’s verdict,
without giving proper regard to the objective standards applicable to the underlying due process constitutional claim that
is at issue.”
That finding was put into the hands of
the jury, but is a determination that should
have been made by the court. Additionally,
we argued, that a legitimate law enforcement objective was, obviously, present in
this case.
The brief was submitted to the U.S. Supreme Court in mid October, 2013 and we
are waiting for the Court to decide whether
or not to grant review.
Haskell v. Harris
Following a U.S. Supreme Court decision, Maryland v. King, that taking DNA
from those arrested for “serious crimes”
was constitutional, the Ninth Circuit U.S.
Court of Appeal upheld California’s law, regarding taking DNA from felony arrestees,
in the case of Haskell v. Harris. Following
the three judge panel’s decision, the ACLU
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