CACI No. 1402. False Arrest Without Warrant - Affirmative Defense - Peace Officer - Probable Cause to Arrest
Judicial Council of California Civil Jury Instructions (2023 edition)
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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/
nonbinary pronoun] 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
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of a person whom he has reasonable grounds to believe is guilty of a crime.”
(Allen v. McCoy (1933) 135 Cal.App. 500, 507-508 [27 P.2d 423].)
• “[P]robable cause for arrest in a criminal proceeding is the same as probable
cause in a civil case for damages alleging false arrest.” (Carcamo v. Los Angeles
County Sheriff’s Dept. (2021) 68 Cal.App.5th 608, 620-621 [283 Cal.Rptr.3d
647].)
• “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.)
• “We look to whether facts known to the arresting officer ‘at the moment the
arrest was made’ ‘ “would persuade someone of ‘reasonable caution’ that the
person to be arrested has committed a crime.” ’ ” (Cornell v. City & County of
San Francisco (2017) 17 Cal.App.5th 766, 779 [225 Cal.Rptr.3d 356], 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.)
• “The legal standard we apply to assess probable cause is an objective one in
which the subjective motivations of the arresting officers have no role. But it is
an overstatement to say that what is in the mind of an arresting officer is wholly
irrelevant, for the objective test of reasonableness is simply a measure by which
we assess whether the circumstances as subjectively perceived by the officer
provide a reasonable basis for the seizure.” (Cornell,supra, 17 Cal.App.5th at p.
779, internal citations omitted.)
• “The arrests of plaintiffs were justified only if defendants can meet their burden
to show the arresting officer had probable cause, which is objectively reasonable
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cause to believe plaintiffs committed a crime. ‘California courts speak of
“reasonable cause” and “probable cause” interchangeably.’ Can a law
enforcement agency have objectively reasonable cause to believe plaintiffs
committed a crime if deputies arrest them for violating a statute our Supreme
Court declared void more than half a century ago? The answer is no.” (Carcamo,
supra, 68 Cal.App.5th at 618.)
• “ ‘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 (11th ed. 2017) Torts, §§ 509, 511
3 Levy 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)
California Civil Practice: Torts §§ 13:22-13:24 (Thomson Reuters)
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