CACI No. 440. Negligent Use of Nondeadly Force by Law Enforcement Officer in Arrest or Other Seizure - Essential Factual Elements
Judicial Council of California Civil Jury Instructions (2023 edition)
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440.Negligent Use of Nondeadly Force by Law Enforcement
Officer in Arrest or Other Seizure - Essential Factual Elements
A law enforcement officer may use reasonable force to [arrest/detain/
[,/or] prevent escape of/ [,/or] overcome resistance by] a person when the
officer has reasonable cause to believe that that person has committed or
is committing a crime. However, the officer may use only that degree of
force necessary to [arrest/detain/ [,/or] prevent escape of/ [,/or] overcome
resistance by] the person. [Even if the officer is mistaken, a person being
arrested or detained has a duty not to use force to resist the officer
unless the officer is using unreasonable force.].
[Name of plaintiff] claims that [name of defendant] was negligent in using
unreasonable force to [arrest/detain/ [,/or] prevent escape of/ overcome
resistance by] [him/her/nonbinary pronoun]. To establish this claim, [name
of plaintiff] must prove all of the following:
1. That [name of defendant] used force to [arrest/detain/ [,/or]
prevent escape of/ [,/or] overcome resistance by] [name of
plaintiff];
2. That the amount of force used by [name of defendant] was
unreasonable;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s use of unreasonable force was a
substantial factor in causing [name of plaintiff]’s harm.
In deciding whether [name of defendant] used unreasonable force, you
must consider the totality of the circumstances to determine what
amount of force a reasonable [insert type of offıcer] in [name of
defendant]’s position would have used under the same or similar
circumstances. “Totality of the circumstances” means all facts known to
the officer at the time, including the conduct of [name of defendant] and
[name of plaintiff] leading up to the use of force. Among the factors to be
considered are the following:
(a) Whether [name of plaintiff] reasonably appeared to pose an
immediate threat to the safety of [name of defendant] or others;
(b) The seriousness of the crime at issue; [and]
(c) Whether [name of plaintiff] was actively resisting [arrest/detention]
or attempting to avoid [arrest/detention] by flight[; and/.]
[(d) [Name of defendant]’s tactical conduct and decisions before using
force on [name of plaintiff].]
[An officer who makes or attempts to make an arrest does not have to
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retreat or stop because the person being arrested is resisting or
threatening to resist. Tactical repositioning or other deescalation tactics
are not retreat. An officer does not lose the right to self-defense by using
objectively reasonable force to [arrest/detain/ [,/or] prevent escape of/
[,/or] overcome resistance by] the person.]
New June 2016; Revised May 2020, November 2020, May 2021
Directions for Use
Use this instruction if the plaintiff makes a negligence claim under state law arising
from the force used in effecting an arrest or detention. Such a claim is often
combined with a claimed civil rights violation under 42 United States Code section
1983. See CACI No. 3020, Excessive Use of Force - Unreasonable Arrest or Other
Seizure - Essential Factual Elements. It might also be combined with a claim for
battery. See CACI No. 1305, Battery by Peace Offıcer - Essential Factual Elements.
For additional authorities on excessive force by a law enforcement officer, see the
Sources and Authority to these two CACI instructions.
By its terms, Penal Code section 835a’s deadly force provisions apply to “peace
officers.” It would appear that a negligence claim involving nondeadly force does
not depend on whether the individual qualifies as a peace officer under the Penal
Code. (See Pen. Code, § 835a; see also Pen. Code, § 830 et seq. [defining “peace
officer”].) For cases involving the use of deadly force by a peace officer, use CACI
No. 441, Negligent Use of Deadly Force by Peace Offıcer - Essential Factual
Elements. (Pen. Code, § 835a.) This instruction and CACI No. 441 may require
modification if the jury must decide whether the force used by the defendant was
deadly or nondeadly.
Include the last bracketed sentence in the first paragraph only if there is evidence
the person being arrested or detained used force to resist the officer.
Factors (a), (b), and (c) are often referred to as the “Graham factors.” (See Graham
v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].) The
Graham factors are to be applied under California negligence law. (Hernandez v.
City of Pomona (2009) 46 Cal.4th 501, 514 [94 Cal.Rptr.3d 1, 207 P.3d 506].) They
are not exclusive (see Glenn v. Wash. County (9th Cir. 2011) 673 F.3d 864, 872);
additional factors may be added if appropriate to the facts of the case. If negligence,
civil rights, and battery claims are all involved, the instructions can be combined so
as to give the Graham factors only once. A sentence may be added to advise the
jury that the factors apply to multiple claims.
Factor (d) is bracketed because no reported California state court decision has held
that an officer’s tactical decisions before using nondeadly force can be actionable
negligence. It has been held that liability can arise if the officer’s earlier tactical
conduct and decisions show, as part of the totality of circumstances, that the
ultimate use of deadly force was unreasonable. (Hayes v. County of San Diego
(2013) 57 Cal.4th 622, 639 [160 Cal.Rptr.3d 684, 305 P.3d 252].) In this respect,
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California negligence law differs from the federal standard under the Fourth
Amendment. (Hayes, supra, 57 Cal.4th at p. 639 [“[T]he state and federal standards
are not the same, which we now confirm”]; cf. Vos v. City of Newport Beach (9th
Cir. 2018) 892 F.3d 1024, 1037 [“To determine police liability [under state law
negligence], a court applies tort law’s ‘reasonable care’ standard, which is distinct
from the Fourth Amendment’s ‘reasonableness’ standard. The Fourth Amendment is
narrower and ‘plac[es] less emphasis on preshooting conduct.’”)
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
Sources and Authority
• Legislative Findings re Use of Force by Law Enforcement. Penal Code section
835a(a).
• Use of Objectively Reasonable Force to Arrest. Penal Code section 835a(b).
• When Peace Officer Need Not Retreat. Penal Code section 835a(d).
• Definitions. Penal Code section 835a(e).
• “There is an abundance of authority permitting a plaintiff to go to the jury on
both intentional and negligent tort theories, even though they are inconsistent. It
has often been pointed out that there is no prohibition against pleading
inconsistent causes of action stated in as many ways as plaintiff believes his
evidence will show, and he is entitled to recover if one well pleaded count is
supported by the evidence.” (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575,
586 [86 Cal.Rptr. 465, 468 P.2d 825].)
• “The evidence relevant to negligence and intentional tort overlaps here and
presents a case similar to Grudt. . . . [¶] This court held it was reversible error
to exclude the negligence issue from the jury even though plaintiff also had pled
intentional tort. The court pointed to the rule that a party may proceed on
inconsistent causes of action unless a nonsuit is appropriate.” (Munoz v. Olin
(1979) 24 Cal.3d 629, 635 [156 Cal.Rptr. 727, 596 P.2d 1143].)
• “Consistent with these principles and the factors the high court has identified, the
federal court in this case did not instruct the jury to conduct some abstract or
nebulous balancing of competing interests. Instead, as noted above, it instructed
the jury to determine the reasonableness of the officers’ actions in light of ‘the
totality of the circumstances at the time,’ including ‘the severity of the crime at
issue, whether the plaintiff posed a reasonable threat to the safety of the officer
or others, and whether the plaintiff was actively resisting detention or attempting
to escape.’ The same consideration of the totality of the circumstances is
required in determining reasonableness under California negligence law.
Moreover, California’s civil jury instructions specifically direct the jury, in
determining whether police officers used unreasonable force for purposes of tort
liability, to consider the same factors that the high court has identified and that
the federal court’s instructions in this case set forth. (Judicial Council of Cal.
Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in arguing that the
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federal and state standards of reasonableness differ in that the former involves a
fact finder’s balancing of competing interests.” (Hernandez, supra, 46 Cal.4th at
p. 514, internal citation omitted.)
• “Determining whether the force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires a careful balancing of ‘ “the nature and
quality of the intrusion on the individual’s Fourth Amendment interests” ’ against
the countervailing governmental interests at stake. Our Fourth Amendment
jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it. Because ‘[t]he test of
reasonableness under the Fourth Amendment is not capable of precise definition
or mechanical application,’ however, its proper application requires careful
attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” (Graham, supra, 490 U.S. at p. 396,
internal citations omitted.)
• “The most important of these [Graham factors, above] is whether the suspect
posed an immediate threat to the officers or others, as measured objectively
under the circumstances.” (Mendoza v. City of West Covina (2012) 206
Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)
• “Plaintiff must prove unreasonable force as an element of the tort.” (Edson v.
City of Anaheim (1998) 63 Cal.App.4th 1269, 1272 [74 Cal.Rptr.2d 614].)
• “ ‘ “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight. . . . [T]he 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. . . .” ’ In calculating whether the
amount of force was excessive, a trier of fact must recognize that peace officers
are often forced to make split-second judgments, in tense circumstances,
concerning the amount of force required.” (Brown v. Ransweiler (2009) 171
Cal.App.4th 516, 527-528 [89 Cal.Rptr.3d 801], internal citations omitted.)
• “ ‘[A]s long as an officer’s conduct falls within the range of conduct that is
reasonable under the circumstances, there is no requirement that he or she
choose the “most reasonable” action or the conduct that is the least likely to
cause harm and at the same time the most likely to result in the successful
apprehension of a violent suspect, in order to avoid liability for negligence.’”
(Hayes,supra, 57 Cal.4th at p. 632.)
• “The California Supreme Court did not address whether decisions before non-
deadly force can be actionable negligence, but addressed this issue only in the
context of ‘deadly force.’” (Mulligan v. Nichols (9th Cir. 2016) 835 F.3d 983,
991, fn. 7.)
• “[T]here is no right to use force, reasonable or otherwise, to resist an unlawful
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detention . . . .” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 333
[27 Cal.Rptr.2d 406].)
• “[E]xecution of an unlawful arrest or detention does not give license to an
individual to strike or assault the officer unless excessive force is used or
threatened; excessive force in that event triggers the individual’s right of self-
defense.” (Evans, supra, 22 Cal.App.4th at p. 331, original italics, internal
citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 496
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 seq. (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.22
(Matthew Bender)
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