California Police Chief- Fall 2013 - Page 10

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. 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