FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A. D., a Minor; J. E., a Minor;
SUE CASEY, Nos. 09-16460
Plaintiffs-Appellees, 09-17635
v. D.C. No.
STEPHEN MARKGRAF,
Defendant-Appellant, 3:07-cv-05483-SI
Northern District of
and California,
San Francisco
STATE OF CALIFORNIA HIGHWAY
PATROL, ORDER
Defendant.
Filed April 11, 2012
Before: Arthur L. Alarcón, Diarmuid F. O’Scannlain,* and
N. Randy Smith, Circuit Judges.
ORDER
The Opinion filed April 6, 2011, and appearing at 636 F.3d
555 (9th Cir. 2011), is withdrawn. Carver v. Lehman, 558
F.3d 869, 878-79 (9th Cir. 2009) (a panel may withdraw an
opinion sua sponte before the mandate issues). It may not be
cited as precedent by or to this court or any district court of
the Ninth Circuit. With the opinion withdrawn, the petition
for rehearing en banc is moot. The parties may file a petition
for rehearing and petition for rehearing en banc upon the fil-
ing of a new decision by the court.
*Due to the death of the Honorable Pamela Ann Rymer, the Honorable
Diarmuid F. O’Scannlain, United States Circuit Judge for the Ninth Cir-
cuit, was drawn to replace her.
3915
3916 A. D. v. CALIFORNIA HIGHWAY PATROL
The parties are ordered to submit supplemental briefs
addressing the following issues and how they affect this case.
The parties may, in their discretion, address other issues, but
the court is primarily concerned with the issues enumerated
below.
1. How should the qualified immunity framework
be applied based on the jury’s finding that
Defendant-Appellant violated Plaintiffs-Appellees’
Fourteenth Amendment right to a familial relation-
ship? In other words, what degree of deference, if
any, should this court give the jury’s implicit finding
that Defendant-Appellant 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? See Ryburn v. Huff, 132 S. Ct. 987
(2012) (per curiam); McKenna v. Edgell, 617 F.3d
432 (6th Cir. 2010); Jennings v. Jones, 499 F.3d 2
(1st Cir. 2007); Thompson v. Mahre, 110 F.3d 716
(9th Cir. 1997).
2. Does the subjective requirement in this case that
the Defendant-Appellant act with a purpose to harm
unrelated to a legitimate law enforcement objective
in order to violate the Plaintiffs-Appellees’ Four-
teenth Amendment right to familial association
affect the qualified immunity inquiry? See Johnson
v. Breeden, 280 F.3d 1308 (11th Cir. 2002).
Defendant-Appellant shall file a supplemental brief not to
exceed twenty pages within fourteen days from the date of
this order. Plaintiffs-Appellees shall file a responsive brief not
to exceed twenty pages within fourteen days from the date of
the filing of Defendant-Appellant’s supplemental brief.
Defendant-Appellant may also file an optional reply brief not
to exceed ten pages within fourteen days after the responsive
brief of Plaintiff-Appellee is filed. Extension of these time
A. D. v. CALIFORNIA HIGHWAY PATROL 3917
limits shall be granted only for good cause shown. All briefs
shall conform to the format requirements of Federal Rule of
Appellate Procedure 32(a)(4), (5) and (6). Parties who are
registered for ECF must file the supplemental brief electroni-
cally without submission of paper copies. Parties who are not
registered ECF filers must file the original supplemental brief
plus 15 paper copies.
After all briefs have been filed, the panel shall confer about
whether further oral argument will be helpful in reaching a
decision, and if so, the Clerk of Court will make appropriate
inquiries with counsel for the parties and with the panel, and
then schedule this matter for reargument.