California Civil Jury Instructions (CACI) (2017)

1305. Battery by Peace Officer

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1305.Battery by Peace Officer
[Name of plaintiff] claims that [name of defendant] harmed [him/her] by
using unreasonable force to [arrest [him/her]/prevent [his/her] escape/
overcome [his/her] resistance/[insert other applicable action]]. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] intentionally touched [name of plaintiff]
[or caused [name of plaintiff] to be touched];
2. That [name of defendant] used unreasonable force to
[arrest/prevent the escape of/overcome the resistance of/insert
other applicable action] [name of plaintiff];
3. That [name of plaintiff] did not consent to the use of that force;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s use of unreasonable force was a
substantial factor in causing [name of plaintiff]’s harm.
[A/An] [insert type of peace offıcer] may use reasonable force to arrest or
detain a person when he or she has reasonable cause to believe that that
person has committed a crime. Even if the [insert type of peace offıcer] is
mistaken, a person being arrested or detained has a duty not to use
force to resist the [insert type of peace offıcer] unless the [insert type of
peace offıcer] is using unreasonable force.
In deciding whether [name of defendant] used unreasonable force, you
must determine the amount of force that would have appeared
reasonable to [a/an] [insert type of peace offıcer] in [name of defendant]’s
position under the same or similar circumstances. You should consider,
among other factors, the following:
(a) The seriousness of the crime at issue;
(b) Whether [name of plaintiff] reasonably appeared to pose an
immediate threat to the safety of [name of defendant] or others;
and
(c) Whether [name of plaintiff] was actively resisting arrest or
attempting to evade arrest.
[[A/An] [insert type of peace offıcer] who makes or attempts to make an
arrest is not required to retreat or cease from his or her efforts because
of the resistance or threatened resistance of the person being arrested.]
New September 2003; Revised December 2012
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Directions for Use
For additional authorities on excessive force, see the Sources and Authority for
CACI No. 3020, Excessive Use of Force—Unreasonable Arrest or Other
Seizure—Essential Factual Elements.
Sources and Authority
• Use of Reasonable Force to Arrest. California Penal Code section 835a.
Duty to Submit to Arrest. California Penal Code section 834a.
• “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 police officer’s use of deadly force is reasonable if ‘ “ ‘the officer has
probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.’ . . .” . . .’ ” (Brown, supra,
171 Cal.App.4th at p. 528.)
• “[T]here is no right to use force, reasonable or otherwise, to resist an unlawful
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, internal citation omitted.)
• “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
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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 federal and state standards of reasonableness differ in that the
former involves a fact finder’s balancing of competing interests.” (Hernandez v.
City of Pomona (2009) 46 Cal.4th 501, 514 [94 Cal. Rptr. 3d 1, 207 P.3d 506],
internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 424
3Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.22,
58.61, 58.92 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq.
(Matthew Bender)
1 California Civil Practice: Torts § 12:22 (Thomson Reuters)
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