Jim Porter


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May 9, 2013
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Jim Porter: Officer immunity for shooting?

Police officers are generally immune from being sued while they are acting in the line of duty — even if they make a mistake. But there is a gray line which if crossed opens the door to a lawsuit.

Bay Bridge Car Chase

Around 2 a.m. on March 23, 2006, CHP Officers Markgraf and Johnson were pursuing a stolen vehicle in Oakland.

The driver of the vehicle, later identified as Karen Eklund, was driving upwards of 100 miles an hour without headlights.

She crossed the Bay Bridge into the City and ultimately turned into a dead-end cul-de-sac and hit a chain link fence.

12 Rounds

Markgraf blocked Eklund’s vehicle with his cruiser, then ran up and looked into her car. He did not see any weapons. He yelled at Eklund, who responded with the classic “f-u” (how creative), then put her car in reverse and rammed the police car.

The confrontation between Eklund and Markgraf escalated. A police supervisor yelled, “Get on the sidewalk guys.” All officers did, and about 10 seconds later, Markgraf started shooting.

The supervisor told him to “stop,” he kept firing at Eklund — a total of 12 rounds — through the passenger side window emptying the magazine of his gun.

When he stopped to reload, the supervisor told Markgraf, “Enough!” The other officers had their guns drawn, but no one else fired. Not surprisingly, Eklund was killed.

Kids Sue

As you might guess, Eklund’s two children sued the CHP and Markgraf for a violation of their Mom’s Constitutional rights of due process.

The trial court allowed the case to proceed to the jury, but only after excluding evidence that would have shown that Eklund was intoxicated with amphetamines during the incident and had a prior arrest record and criminal history. At this point, you get a feeling where this case is heading.

Jury Ruling

The jury ruled for the two children, against Markgraf, awarding each $30,000. Not much, considering. The trial court then awarded the children reimbursement of attorney’s fees and court costs of just over $500,000. Markgraf appealed.

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. Unfortunately for Markgraf, none of the officers believed Eklund’s vehicle posed an immediate threat to their lives.

The legal standard in 2006 was 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.”

The jury concluded, based upon the facts, that Markgraf violated Eklund’s due process, and based on that finding, the trial court upheld the jury verdict.

Analysis

The federal Court of Appeals also concluded that because the jury had determined that Markgraf acted with a purpose to harm unrelated to a legitimate law enforcement objective (such as arrest, self-defense, or the defense of others), he was not entitled to immunity.

Eklund’s children win, Markgraf loses.

I don’t know. It seems pretty clear that Markgraf “lost it,” but it’s easy to second guess when you’re not in the heat of the situation. This just re-enforces why I’ve never wanted to be a cop.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at porter@portersimon.com or at the firm’s web site www.portersimon.com.


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Tahoe Daily Tribune Updated May 9, 2013 04:12PM Published May 13, 2013 03:41PM Copyright 2013 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.