California Civil Jury Instructions (CACI) (2017)

1402. False Arrest Without Warrant—Affirmative Defense—Peace Officer—Probable Cause to Arrest

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1402.False Arrest Without Warrant—Affirmative Defense—Peace
Officer—Probable Cause to Arrest
[Name of defendant] claims the arrest was not wrongful because [he/she]
had the authority to arrest [name of plaintiff] without a warrant.
[If [name of defendant] proves that [insert facts that, if proved, would
constitute reasonable cause to believe that plaintiff had committed a crime
in defendant’s presence], then [name of defendant] had the authority to
arrest [name of plaintiff] without a warrant.]
[or]
[If [name of defendant] proves that [insert facts that, if proved, would
establish that defendant had reasonable cause to believe that plaintiff had
committed a felony, whether or not a felony had actually been committed],
then [name of defendant] had the authority to arrest [name of plaintiff]
without a warrant.]
New September 2003
Directions for Use
In the brackets, the judge must insert the fact or facts that are actually controverted
and that may be necessary to arrive at the probable cause determination. There may
be one or more facts or combinations of facts that are necessary to make this
determination, in which case they can be phrased in the alternative.
If a criminal act is alleged as justification, it may be necessary to instruct whether
the crime is a felony, misdemeanor, or public offense.
Penal Code section 836 provides, in part, that a warrantless arrest may be made if a
person has committed a felony, although not in the officer’s presence. While the
requirement of probable cause is not explicitly stated, it would seem that the officer
must always have probable cause at the time of the arrest and that subsequent
conviction of a felony does not sanitize an improper arrest.
If the first bracketed paragraph is used, the judge should include “in the officer’s
presence” as part of the facts that the jury needs to find if there is a factual dispute
on this point.
Sources and Authority
• Arrest Without a Warrant. Penal Code section 836(a).
Felonies and Misdemeanors. Penal Code section 17(a).
• “Peace Officers” Defined. Penal Code section 830 et seq.
• “An officer is not liable for false imprisonment for the arrest without a warrant
of a person whom he has reasonable grounds to believe is guilty of a crime.
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The question of the existence of probable cause to believe that one is guilty of
a crime must be determined as a matter of law from the facts and circumstances
of the case.” (Allen v. McCoy (1933) 135 Cal.App. 500, 507–508 [27 P.2d
423].)
• “It has long been the law that a cause of action for false imprisonment is stated
where it is alleged that there was an arrest without process, followed by
imprisonment and damages. Upon proof of those facts the burden is on the
defendant to prove justification for the arrest. Considerations of both a practical
and policy nature underlie this rule. The existence of justification is a matter
which ordinarily lies peculiarly within the knowledge of the defendant. The
plaintiff would encounter almost insurmountable practical problems in
attempting to prove the negative proposition of the nonexistence of any
justification. This rule also serves to assure that official intermeddling is
justified, for it is a serious matter to accuse someone of committing a crime and
to arrest him without the protection of the warrant process.” (Cervantez v. J. C.
Penney Co. (1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975],
footnote and internal citations omitted.)
• “The existence of probable cause depends upon facts known by the arresting
officer at the time of the arrest.” (Hamilton v. City of San Diego (1990) 217
Cal.App.3d 838, 844 [266 Cal.Rptr. 215], internal citations omitted.)
• “If the facts that gave rise to the arrest are undisputed, the issue of probable
cause is a question of law for the trial court. When, however, the facts that gave
rise to the arrest are controverted, the trial court must instruct the jury as to
what facts, if established, would constitute probable cause. ‘The trier of fact’s
function in false arrest cases is to resolve conflicts in the evidence. Accordingly,
where the evidence is conflicting with respect to probable cause, “ ‘it [is] the
duty of the court to instruct the jury as to what facts, if established, would
constitute probable cause.’ ” . . . The jury then decides whether the evidence
supports the necessary factual findings.’ ” (Levin v. United Air Lines, Inc.
(2008) 158 Cal.App.4th 1002, 1018–1019 [70 Cal.Rptr.3d 535], internal
citations omitted.)
• “ ‘Presence’ is not mere physical proximity but is determined by whether the
offense is apparent to the officer’s senses.” (People v. Sjosten (1968) 262
Cal.App.2d 539, 543–544 [68 Cal.Rptr. 832], internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 436, 438
3Levy et al., California Torts, Ch. 42, False Imprisonment and False Arrest,
§ 42.23 (Matthew Bender)
22 California Forms of Pleading and Practice, Ch. 257, False Imprisonment,
§ 257.20 (Matthew Bender)
10 California Points and Authorities, Ch. 103, False Imprisonment, § 103.65 et seq.
(Matthew Bender)
1 California Civil Practice: Torts §§ 13:22–13:24 (Thomson Reuters)
CACI No. 1402 FALSE IMPRISONMENT
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