California Civil Jury Instructions (CACI)

3001. Excessive Use of Force - Unreasonable Arrest or Other Seizure—Essential Factual Elements (42 U.S.C. § 1983)

[Name of plaintiff] claims that [name of defendant] used excessive force in [arresting/detaining] [him/her]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] used force in [arresting/detaining] [name of plaintiff];

2. That the force used by [name of defendant] was excessive;

3. That [name of defendant] was acting or purporting to act in the performance of [his/her] official duties;

4. That [name of plaintiff] was harmed; and

5. That [name of defendant]'s use of excessive force was a substantial factor in causing [name of plaintiff]'s harm.

Force is not excessive if it is reasonably necessary under the circumstances to [detain/make a lawful arrest]. In deciding whether force is reasonably necessary or excessive, you should determine what force a reasonable law enforcement officer would have used 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 [detention/arrest]] [attempting to avoid arrest].

Directions for Use

The "official duties" referred to in element 3 must be duties created pursuant to any state, county, or municipal law, ordinance, or regulation. This aspect of color of law most likely will not be an issue for the jury, so it has been omitted to shorten the wording of element 3.

Sources and Authority

"In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. In most instances, that will be either the Fourth Amendment's prohibition against unreasonable seizures of the person, or the Eighth Amendment's ban on cruel and unusual punishments, which are the two primary sources of constitutional protection against physically abusive governmental conduct." (Graham v. Connor (1989) 490 U.S. 386, 395 [109 S.Ct. 1865, 104 L.Ed.2d 443], internal citations and footnote omitted.)

"Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right 'to be secure in their persons . . . against unreasonable . . . seizures' of the person." (Graham, supra, 490 U.S. at p. 394.)

"[A]ll claims that law enforcement officers have used excessive force— deadly or not—in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach." (Graham, supra, 490 U.S. at p. 395.)

"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." (Graham, supra, 490 U.S. at p. 396.)

"Because '[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,' . . . its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." (Graham, supra, 490 U.S. at p. 396, internal citation omitted.)

"In Forrester v. City of San Diego, we noted that the three factors listed in Graham are not the sole considerations a fact finder should entertain in determining whether force is excessive under the Fourth Amendment. Instead, 'the [Graham] Court instructed that the jury should consider "whether the totality of the circumstance justifies a particular sort of seizure.' " In Chew v. Gates, we stated that the three actors listed in Graham should be taken into account in excessive force cases, but that they are not the exhaustive criteria for determining excessive force." (Fikes v. Cleghorn (9th Cir. 1995) 47 F.3d 1011, 1014, internal citations omitted.)

"The Supreme Court has interpreted the phrase 'under "color" of law' to mean 'under "pretense" of law.' A police officer's actions are under pretense of law only if they are 'in some way "related to the performance of his official duties.' " By contrast, an officer who is ' "pursuing his own goals and is not in any way subject to control by [his public employer],' " does not act under color of law, unless he 'purports or pretends' to do so. Officers who engage in confrontations for personal reasons unrelated to law enforcement, and do not 'purport[] or pretend[]' to be officers, do not act under color of law." (Huffman v. County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations omitted.)

"[P]rivate parties ordinarily are not subject to suit under section 1983, unless, sifting the circumstances of the particular case, the state has so significantly involved itself in the private conduct that the private parties may fairly be termed state actors. Among the factors considered are whether the state subsidized or heavily regulated the conduct, or compelled or encouraged the particular conduct, whether the private actor was performing a function which normally is performed exclusively by the state, and whether there was a symbiotic relationship rendering the conduct joint state action." (Robbins v. Hamburger Home for Girls (1995) 32 Cal.App.4th 671, 683 [38 Cal.Rptr.2d 534], internal citations omitted.)

"Private parties act under color of state law if they willfully participate in joint action with state officials to deprive others of constitutional rights. Private parties involved in such a conspiracy may be liable under section 1983." (United Steelworkers of America v. Phelps Dodge Corp. (9th Cir.1989) 865 F.2d 1539, 1540, internal citations omitted.)

Secondary Sources

8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, § 706 et seq.

3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State Law—Law Enforcement and Prosecution, ¶¶ 10.00-10.03 (Matthew Bender)

3 California Points and Authorities, Ch. 35, Civil Rights (Matthew Bender)

(New September 2003)