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No JMOL, Immunity for Cop Who Emptied a Clip in Unarmed Suspect

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By William Peacock, Esq. on April 05, 2013 4:13 PM

Karen Eklund crossed the Bay Bridge at over 100 miles per hour. She then took to the surface streets of San Francisco at speeds of up to 50 miles per hour, which is pretty impressive considering the poor condition and curviness of some of SF's roads. Eventually, with police officers in tow, she pulled into a cul-de-sac and was trapped.

Her response was neither rational nor polite: she rammed the police cars with her getaway vehicle. Officer Stephen Markgraf ran up to the passenger side of the vehicle and noticed that she was unarmed. Nonetheless she yelled, "F*** you" and reversed into the cop car two more times.

The supervising officer yelled "cross-fire" in order to get all of the officers on the same side of the street and out of harms way. Markgraf, however, stuck to his guns and then emptied his clip -- 12 rounds in all -- into Eklund. Her children sued for a violation of their Fourteenth Amendment due process rights and won a relatively minor jury verdict of $30,000 each - plus more than $500,000 in attorney's fees.

Markgraf moved for judgment as a matter of law (JMOL) but was denied. This appeal ensued. Last year, the Ninth Circuit ruled in Markgraf's favor. Shortly thereafter, however, they granted rehearing.

Qualified immunity, as a matter of law, is appropriate where the plaintiff has not shown facts that would make out a constitutional violation. Even they do make such a showing, the constitutional right must be clearly established at the time of the alleged misconduct.

Though there isn't a case completely on point, the court cites obviousness as a reason why the right is clearly established. In Lewis, the Supreme Court held that a police officer violates due process when he acts with a "purpose to cause harm unrelated to the legitimate object of arrest".

Those cased didn't involve 12 bullets into the body of an unarmed allegedly drugged-out woman behind the wheel of a car. However, it is obvious that shooting someone 12 times, when no officers were in danger at that point, doesn't exactly lead to arrest.

Plus, the Ninth Circuit is "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."

As for the other part of the qualified immunity test, the showing of facts sufficient for a constitutional violation, that part is obviously met here. QI is normally dealt with pre-trial, and the required showing is an even lesser burden than proving a case to a jury - which the plaintiffs did here.

On the bright side, though Markgraf may have lost the case, he may end up paying a much smaller judgment. Since the original case was decided, a change in Ninth Circuit law now allows the court to look at settlement negotiations to determine if an award is excessive. This means the case will be remanded in order for the district court to consider the proposed settlement amounts.

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