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 plaintiff’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
W e do not need to address M arkgraf’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 M arkgraf 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. W e 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 M arkgraf 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
W e 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).