California Civil Jury Instructions (CACI)

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

Directions for Use

Coerced consent is frequently an issue in these cases.

Sources and Authority

  • California Penal Code section 835a states: “Any peace officer, who has reasonable cause to believe that the person to be arrested has committed a public offense, may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.”
  • California Penal Code section 834a states: “If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest.”
  • A plaintiff bringing a battery action against a police officer has the burden of proving 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.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 424

3 Levy 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 (Thomson West) § 12:22