CACI No. 1305B. Battery by Peace Officer (Deadly Force) - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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1305B.Battery by Peace Officer (Deadly Force) - Essential Factual
Elements
A peace officer may use deadly force only when necessary in defense of
human life. [Name of plaintiff] claims that [name of defendant]
unnecessarily used deadly force on [him/her/nonbinary pronoun/name of
decedent]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] intentionally touched [name of plaintiff/
decedent] [or caused [name of plaintiff/decedent] to be touched];
2. That [name of defendant] used deadly force on [name of plaintiff/
decedent];
3. That [name of defendant]’s use of deadly force was not necessary
to defend human life;
4. That [name of plaintiff/decedent] was [harmed/killed]; and
5. That [name of defendant]’s use of deadly force was a substantial
factor in causing [name of plaintiff/decedent]’s [harm/death].
[Name of defendant]’s use of deadly force was necessary to defend human
life only if a reasonable officer in the same situation would have believed,
based on the totality of the circumstances known to or perceived by
[name of defendant] at the time, that deadly force was necessary [insert
one or both of the following:]
5. [to defend against an imminent threat of death or serious bodily
harm to [name of defendant] [or] [to another person][; or/.]]
5. [to apprehend a fleeing person for a felony, when all of the
following conditions are present:
i. The felony threatened or resulted in death or serious bodily
injury to another;
ii. [Name of defendant] reasonably believed that the person fleeing
would cause death or serious bodily injury to another unless
immediately apprehended; and
iii. If practical under the circumstances, [name of defendant] made
reasonable efforts to identify [himself/herself/nonbinary
pronoun] as a peace officer and to warn that deadly force
would be used, unless the officer had objectively reasonable
grounds to believe the person is aware of those facts.]
[A peace officer must not use deadly force against persons based only on
the danger those persons pose to themselves, if an objectively reasonable
officer would believe the person does not pose an imminent threat of
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death or serious bodily injury to the peace officer or to another person.]
[A person being [arrested/detained] has a duty not to use force to resist
the peace officer unless the peace officer is using unreasonable force.]
“Deadly force” means any use of force that creates a substantial risk of
causing death or serious bodily injury, including, but not limited to, the
discharge of a firearm.
A threat of death or serious bodily injury is “imminent” when, based on
the totality of the circumstances, a reasonable officer in the same
situation would believe that a person has the present ability, opportunity,
and apparent intent to immediately cause death or serious bodily injury
to the peace officer or another person. An imminent harm is not merely
a fear of future harm, no matter how great the fear and no matter how
great the likelihood of the harm, but is one that, from appearances, must
be instantly confronted and addressed.
“Totality of the circumstances” means all facts known to the peace
officer at the time, including the conduct of [name of defendant] and
[name of plaintiff/decedent] leading up to the use of deadly force. In
determining whether [name of defendant]’s use of deadly force was
necessary in defense of human life, you must consider [name of
defendant]’s tactical conduct and decisions before using deadly force on
[name of plaintiff/decedent] and whether [name of defendant] used other
available resources and techniques as [an] alternative[s] to deadly force,
if it was reasonably safe and feasible to do so. [You must also consider
whether [name of defendant] knew or had reason to know that the person
against whom [he/she/nonbinary pronoun] used force was suffering from a
physical, mental health, developmental, or intellectual disability [that
may have affected the person’s ability to understand or comply with
commands from the officer[s]].]
[A peace officer who makes or attempts to make an arrest does not have
to retreat or stop because the person being arrested is resisting or
threatening to resist. Tactical repositioning or other deescalation tactics
are not retreat. A peace officer does not lose the right to self-defense by
use of objectively reasonable force to effect the arrest or to prevent
escape or to overcome resistance. A peace officer does, however, have a
duty to use reasonable tactical repositioning or other deescalation
tactics.]
New May 2021
Directions for Use
Use this instruction for a claim of battery using deadly force by a peace officer. If a
plaintiff alleges battery by both deadly and nondeadly force, or if the jury must
ASSAULT AND BATTERY CACI No. 1305B
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decide whether the amount of force used was deadly or nondeadly, this instruction
may be used along with the CACI No. 1305A, Battery by Law Enforcement Offıcer
(Nondeadly Force) - Essential Factual Elements.
By its terms, Penal Code section 835a’s deadly force provisions apply to “peace
officers,” a term defined by the Penal Code. (See Pen. Code, § 835a; see also Pen.
Code, § 830 et seq. [defining “peace officer”].) That the defendant is a peace officer
may be stipulated to or decided by the judge as a matter of law. In such a case, the
judge must instruct the jury that the defendant was a peace officer. If there are
contested issues of fact on this issue, include the specific factual findings necessary
for the jury to determine whether the defendant was acting as a peace officer.
In the paragraph after the essential factual elements, select either or both bracketed
options depending on the asserted justification(s) for the use of deadly force.
“Deadly force” means any use of force that creates a substantial risk of causing
death or serious bodily injury, including, but not limited to, the discharge of a
firearm. (Pen. Code, § 835a(e)(1).) Note that this definition does not require that the
encounter result in the death of the person against whom the force was used. If
there is no dispute about the use of deadly force, the court should instruct the jury
that deadly force was used.
In the “totality of the circumstances” paragraph, do not include the final optional
sentence or its optional clause unless there is evidence of a disability or evidence of
the person’s ability to comprehend or comply with the officers commands.
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
In a wrongful death or survival action, use the name of the decedent victim where
applicable and further modify the instruction as appropriate.
Sources and Authority
Legislative Findings re Use of Force by Law Enforcement. Penal Code section
835a(a).
When Use of Deadly Force is Justified. Penal Code section 835a(c).
When Peace Officer Need Not Retreat. Penal Code section 835a(d).
Definitions. Penal Code section 835a(e).
“Peace Officer” Defined. Penal Code section 830 et seq.
“[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, original italics, internal
citation omitted.)
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Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 427, 993
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)
California Civil Practice: Torts § 12:22 (Thomson Reuters)
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