CACI No. 3020. Excessive Use of Force - Unreasonable Arrest or Other Seizure - Essential Factual Elements (42 U.S.C. § 1983)

Judicial Council of California Civil Jury Instructions (2020 edition)

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3020.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/nonbinary pronoun]. 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/nonbinary pronoun] 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. In deciding whether force is reasonably necessary or
excessive, you should determine, based on all of the facts and
circumstances, what force a reasonable law enforcement officer on the
scene would have used under the same or similar circumstances. You
should consider the following:
(a) Whether [name of plaintiff] reasonably appeared to pose an
immediate threat to the safety of [name of defendant] or others;
(b) The seriousness of the crime at issue; [and]
(c) Whether [name of plaintiff] was actively [resisting
[arrest/detention]/ [or] attempting to avoid [arrest/detention] by
flight][./; and]
(d) [specify other factors particular to the case].
New September 2003; Revised June 2012; Renumbered from CACI No. 3001
December 2012; Revised June 2015, June 2016, May 2020
Directions for Use
The “official duties” referred to in element 3 must be duties created by a 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.
The three factors (a), (b), and (c) listed are often referred to as the “Graham
factors.” (See Graham v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104
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L.Ed.2d 443].) The Graham factors are not exclusive. (See Glenn v. Wash. County
(9th Cir. 2011) 661 F.3d 460, 467-468.) Additional factors may be added if
appropriate to the facts of the case.
Claims of excessive force against law enforcement officers in the course of making
an arrest, investigatory stop, or other seizure are analyzed under the Fourth
Amendment’s “objective reasonableness” standard. (Graham, supra, 490 U.S. at pp.
388, 395 fn.10.) Claims of excessive force brought by pretrial detainees are
governed by the Fourteenth Amendment’s Due Process Clause and are also analyzed
under an objective reasonableness standard. (Kingsley v. Hendrickson (2015) - U.S.
- , 135 S.Ct. 2466, 2473 [192 L.Ed.2d 416].) Modify the instruction for use in a
case brought by a pretrial detainee involving the use of excessive force after arrest,
but before conviction. For an instruction on an excessive force claim brought by a
convicted prisoner, see CACI No. 3042, Violation of Prisoner’s Federal Civil
Rights - Eighth Amendment - Excessive Force.
The legality or illegality of the use of deadly force under state law is not relevant to
the constitutional question. (Cf. People v. McKay (2002) 27 Cal.4th 601, 610 [117
Cal.Rptr.2d 236, 41 P.3d 59] [“[T]he [United States Supreme Court] has repeatedly
emphasized that the Fourth Amendment inquiry does not depend on whether the
challenged police conduct was authorized by state law”]; see also Pen. Code,
§ 835a.)
For an instruction for use in a negligence claim under California common law based
on the same event and facts, see CACI No. 440, Unreasonable Force by Law
Enforcement Offıcer in Arrest or Other Seizure - Essential Factual Elements. For an
instruction for use alleging excessive force as a battery, see CACI No. 1305, Battery
by Peace Offıcer - Essential Factual Allegations.
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, supra, 490 U.S. at p. 395, 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.)
• “In deciding whether the force deliberately used is, constitutionally speaking,
‘excessive,’ should courts use an objective standard only, or instead a subjective
standard that takes into account a defendant’s state of mind? It is with respect to
this question that we hold that courts must use an objective standard.” (Kingsley
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v. Hendrickson (2015) - U.S. - , 135 S.Ct. 2466, 2472-2473 [192 L.Ed.2d
416], original italics.)
• “[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 intrusiveness of a seizure by means of deadly force is unmatched.’ ‘The
use of deadly force implicates the highest level of Fourth Amendment interests
both because the suspect has a “fundamental interest in his own life” and
because such force “frustrates the interest of the individual, and of society, in
judicial determination of guilt and punishment.” ’ ” (Vos v. City of Newport
Beach (9th Cir. 2018) 892 F.3d 1024, 1031.)
• “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.)
• “The most important of these [factors from Graham, above] is whether the
suspect posed an immediate threat to the officers or others, as measured
objectively under the circumstances.” (Mendoza v. City of West Covina (2012)
206 Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)
• “[The Graham] factors, however, are not exclusive. We ‘examine the totality of
the circumstances and consider “whatever specific factors may be appropriate in
a particular case, whether or not listed in Graham.” ’ Other relevant factors
include the availability of less intrusive alternatives to the force employed,
whether proper warnings were given and whether it should have been apparent
to officers that the person they used force against was emotionally disturbed.”
(Glenn, supra, 661 F.3d at p. 467, internal citations omitted.)
• “With respect to the possibility of less intrusive force, officers need not employ
the least intrusive means available[,] so long as they act within a range of
reasonable conduct.” (Estate of Lopez v. Gelhaus (9th Cir. 2017) 871 F.3d 998,
1006.)
• “Although officers are not required to use the least intrusive degree of force
available, ‘the availability of alternative methods of capturing or subduing a
suspect may be a factor to consider[.]’ ” (Vos, supra, 892 F.3d at p. 1033,
internal citation omitted.)
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• “Courts ‘also consider, under the totality of the circumstances, the quantum of
force used to arrest the plaintiff, the availability of alternative methods of
capturing or detaining the suspect, and the plaintiff’s mental and emotional
state.’ ” (Brooks v. Clark County (9th Cir. 2016) 828 F.3d 910, 920.)
• “Because the reasonableness standard ‘nearly always requires a jury to sift
through disputed factual contentions, and to draw inferences therefrom, we have
held on many occasions that summary judgment or judgment as a matter of law
in excessive force cases should be granted sparingly.’ ” (Torres v. City of Madera
(9th Cir. 2011) 648 F.3d 1119, 1125.)
• “Justice Stevens incorrectly declares [the ‘objective reasonableness’ standard
under Graham] to be ‘a question of fact best reserved for a jury,’ and complains
we are ‘usurp[ing] the jury’s factfinding function.’ At the summary judgment
stage, however, once we have determined the relevant set of facts and drawn all
inferences in favor of the nonmoving party to the extent supportable by the
record, the reasonableness of [defendant]’s actions - or, in Justice Stevens’
parlance, ‘[w]hether [respondent’s] actions have risen to a level warranting
deadly force,’ is a pure question of law.” (Scott v. Harris (2007) 550 U.S. 372,
381, fn. 8 [127 S. Ct. 1769; 167 L. Ed. 2d 686], original italics, internal citations
omitted.)
• “Because there are no genuine issues of material fact and ‘the relevant set of
facts’ has been determined, the reasonableness of the use of force is ‘a pure
question of law.’ ” (Lowry v. City of San Diego (9th Cir. 2017) 858 F.3d 1248,
1256 (en banc).)
• “In assessing the objective reasonableness of a particular use of force, we
consider: (1) ‘the severity of the intrusion on the individual’s Fourth Amendment
rights by evaluating the type and amount of force inflicted,’ (2) ‘the
government’s interest in the use of force,’ and (3) the balance between ‘the
gravity of the intrusion on the individual’ and ‘the government’s need for that
intrusion.’ ” (Lowry, supra, 858 F.3d at p. 1256.)
• “To be sure, the reasonableness inquiry in the context of excessive force
balances ‘intrusion[s] on the individual’s Fourth Amendment interests’ against
the government’s interests. But in weighing the evidence in favor of the officers,
rather than the [plaintiffs], the district court unfairly tipped the reasonableness
inquiry in the officers’ favor.” (Sandoval v. Las Vegas Metro. Police Dep’t (9th
Cir. 2014) 756 F.3d 1154, 1167, internal citation omitted.)
• “The district court found that [plaintiff] stated a claim for excessive use of force,
but that governmental interests in officer safety, investigating a possible crime,
and controlling an interaction with a potential domestic abuser outweighed the
intrusion upon [plaintiff]’s rights. In reaching this conclusion, the court
improperly ‘weigh[ed] conflicting evidence with respect to . . . disputed material
fact[s].’ ” (Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d 865, 880.)
• “The Fourth Amendment’s ‘reasonableness’ standard is not the same as the
standard of ‘reasonable care’ under tort law, and negligent acts do not incur
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constitutional liability.” (Hayes v. County of San Diego 57 Cal.4th 622, 639 [160
Cal.Rptr.3d 684, 305 P.3d 252].)
• “[S]tate negligence law, which considers the totality of the circumstances
surrounding any use of deadly force, is broader than federal Fourth Amendment
law, which tends to focus more narrowly on the moment when deadly force is
used.” (Hayes, supra, 57 Cal.4th at p. 639, internal citations omitted.)
• “We are cognizant of the Supreme Court’s command to evaluate an officer’s
actions ‘from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.’ We also recognize the reality that ‘police
officers are often forced to make split-second judgments - in circumstances that
are tense, uncertain, and rapidly evolving - about the amount of force that is
necessary in a particular situation.’ This does not mean, however, that a Fourth
Amendment violation will be found only in those rare instances where an officer
and his attorney are unable to find a sufficient number of compelling adjectives
to describe the victim’s conduct. Nor does it mean that we can base our analysis
on what officers actually felt or believed during an incident. Rather, we must ask
if the officers’ conduct is ‘ “objectively reasonable” in light of the facts and
circumstances confronting them’ without regard for an officer’s subjective
intentions.” (Bryan v. MacPherson (9th Cir. 2010) 630 F.3d 805, 831, internal
citations omitted.)
• “Deadly force is permissible only ‘if the suspect threatens the officer with a
weapon or there is probable cause to believe that he has committed a crime
involving the infliction or threatened infliction of serious physical harm.’ ” (A. K.
H. v. City of Tustin (9th Cir. 2016) 837 F.3d 1005, 1011.)
• “[A]n officer may not use deadly force to apprehend a suspect where the suspect
poses no immediate threat to the officer or others. On the other hand, it is not
constitutionally unreasonable to prevent escape using deadly force ‘[w]here the
officer has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others.’ ” (Wilkinson v. Torres (9th Cir.
2010) 610 F.3d 546, 550, internal citations omitted.)
• “It is clearly established law that shooting a fleeing suspect in the back violates
the suspect’s Fourth Amendment rights. ‘Where the suspect poses no immediate
threat to the officer and no threat to others, the harm resulting from failing to
apprehend him does not justify the use of deadly force to do so. . . . A police
officer may not seize an unarmed, nondangerous suspect by shooting him
dead.’ ” (Foster v. City of Indio (9th Cir. 2018) 908 F.3d 1204, 1211.)
• “ ‘[I]f police officers are justified in firing at a suspect in order to end a severe
threat to public safety, the officers need not stop shooting until the threat has
ended.’ But terminating a threat doesn’t necessarily mean terminating the
suspect. If the suspect is on the ground and appears wounded, he may no longer
pose a threat; a reasonable officer would reassess the situation rather than
continue shooting.” (Zion v. County of Orange (9th Cir. 2017) 874 F.3d 1072,
1076, internal citation omitted.)
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• “Resistance, or the reasonable perception of resistance, does not entitle police
officers to use any amount of force to restrain a suspect. Rather, police officers
who confront actual (or perceived) resistance are only permitted to use an
amount of force that is reasonable to overcome that resistance.” (Barnard v.
Theobald (9th Cir. 2013) 721 F.3d 1069, 1076, internal citations omitted.)
• “[T]he fact that the ‘suspect was armed with a deadly weapon’ does not render
the officers’ response per se reasonable under the Fourth Amendment. [¶] This is
not to say that the Fourth Amendment always requires officers to delay their fire
until a suspect turns his weapon on them. If the person is armed - or reasonably
suspected of being armed - a furtive movement, harrowing gesture, or serious
verbal threat might create an immediate threat.” (George v. Morris (9th Cir.
2013) 724 F.3d 1191, 1200, original italics, internal citations omitted.)
• “ ‘[A] simple statement by an officer that he fears for his safety or the safety of
others is not enough; there must be objective factors to justify such a concern.’
Here, whether objective factors supported [defendant]’s supposed subjective fear
is not a question that can be answered as a matter of law based upon the limited
evidence in the record, especially given that on summary judgment that evidence
must be construed in the light most favorable to [plaintiff], the non-moving
party. Rather, whether [defendant]’s claim that he feared a broccoli-based assault
is credible and reasonable presents a genuine question of material fact that must
be resolved not by a court ruling on a motion for summary judgment but by a
jury in its capacity as the trier of fact.” (Young v. County of Los Angeles (9th
Cir. 2011) 655 F.3d 1156, 1163-1164.)
• “An officer’s evil intentions will not make a Fourth Amendment violation out of
an objectively reasonable use of force; nor will an officer’s good intentions make
an objectively unreasonable use of force constitutional.” (Fetters v. County of
Los Angeles (2016) 243 Cal.App.4th 825, 838 [196 Cal.Rptr.3d 848].)
• “Where . . . ‘an officer’s particular use of force is based on a mistake of fact,
we ask whether a reasonable officer would have or should have accurately
perceived that fact.’ ‘[W]hether the mistake was an honest one is not the
concern, only whether it was a reasonable one.’ ” (Nehad v. Browder (9th Cir.
2019) 929 F.3d 1125, 1133, original italics, internal citation and footnote
omitted.)
• “Although Graham does not specifically identify as a relevant factor whether the
suspect poses a threat to himself, we assume that the officers could have used
some reasonable level of force to try to prevent [decedent] from taking a suicidal
act. But we are aware of no published cases holding it reasonable to use a
significant amount of force to try to stop someone from attempting suicide.
Indeed, it would be odd to permit officers to use force capable of causing serious
injury or death in an effort to prevent the possibility that an individual might
attempt to harm only himself. We do not rule out that in some circumstances
some force might be warranted to prevent suicide, but in cases like this one the
‘solution’ could be worse than the problem.” (Glenn, supra, 661 F.3d at p. 468.)
• “This Court has ‘refused to create two tracks of excessive force analysis, one for
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the mentally ill and one for serious criminals.’ The Court has, however, ‘found
that even when an emotionally disturbed individual is acting out and inviting
officers to use deadly force to subdue him, the governmental interest in using
such force is diminished by the fact that the officers are confronted . . . with a
mentally ill individual.’ A reasonable jury could conclude, based upon the
information available to [defendant officer] at the time, that there were sufficient
indications of mental illness to diminish the governmental interest in using
deadly force.” (Hughes v. Kisela (9th Cir. 2016) 841 F.3d 1081, 1086.)
• “Whether an officer warned a suspect that failure to comply with the officer’s
commands would result in the use of force is another relevant factor in an
excessive force analysis.” (Nehad, supra, 929 F.3d at p. 1137.)
• “By contrast, if the officer warned the offender that he would employ force, but
the suspect refused to comply, the government has an increased interest in the
use of force.” (Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, 1175,
internal citation omitted.)
• “[P]reshooting conduct is included in the totality of circumstances surrounding
an officer’s use of deadly force, and therefore the officer’s duty to act reasonably
when using deadly force extends to preshooting conduct. But in a case like this
one, where the preshooting conduct did not cause the plaintiff any injury
independent of the injury resulting from the shooting, the reasonableness of the
officers’ preshooting conduct should not be considered in isolation. Rather, it
should be considered in relation to the question whether the officers’ ultimate use
of deadly force was reasonable.” (Hayes, supra, 57 Cal.4th at p. 632, internal
citation omitted.)
• “Sometimes, however, officers themselves may ‘unnecessarily creat[e] [their]
own sense of urgency.’ Reasonable triers of fact can, taking the totality of the
circumstances into account, conclude that an officer’s poor judgment or lack of
preparedness caused him or her to act unreasonably, ‘with undue haste.’ ”
(Nehad, supra, 929 F.3d at p. 1135, internal citation and footnote omitted.)
• “A person is seized by the police and thus entitled to challenge the government’s
action under the Fourth Amendment when the officer by means of physical force
or show of authority terminates or restrains his freedom of movement through
means intentionally applied.” (Nelson v. City of Davis (9th Cir. 2012) 685 F.3d
867, 875.)
• “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.)
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• “We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of
a writ of habeas corpus. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable under
§ 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated. But if the district court
determines that the plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some other bar to the suit.”
(Heck v. Humphrey (1994) 512 U.S. 477, 486-487 [114 S.Ct. 2364, 129 L.Ed.2d
383], footnotes and internal citation omitted.)
•“Heck requires the reviewing court to answer three questions: (1) Was there an
underlying conviction or sentence relating to the section 1983 claim? (2) Would
a ‘judgment in favor of the plaintiff [in the section 1983 action] “necessarily
imply” . . . the invalidity of the prior conviction or sentence?’ (3) ‘If so, was
the prior conviction or sentence already invalidated or otherwise favorably
terminated?’ ” (Fetters, supra, 243 Cal.App.4th at p. 834.)
• “The Heck inquiry does not require a court to consider whether the section 1983
claim would establish beyond all doubt the invalidity of the criminal outcome;
rather, a court need only ‘consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence.’ ” (Fetters,
supra, 243 Cal.App.4th at p. 841, original italics.)
• “[A] dismissal under section 1203.4 does not invalidate a conviction for
purposes of removing the Heck bar preventing a plaintiff from bringing a civil
action.” (Baranchik v. Fizulich (2017) 10 Cal.App.5th 1210, 1224 [217
Cal.Rptr.3d 423].)
• “[Plaintiff]’s section 1983 claim is barred to the extent it alleges that [the
arresting officer] lacked justification to arrest him or to respond with reasonable
force to his resistance. The use of deadly force in this situation, though, requires
a separate analysis. ‘For example, a defendant might resist a lawful arrest, to
which the arresting officers might respond with excessive force to subdue him.
The subsequent use of excessive force would not negate the lawfulness of the
initial arrest attempt, or negate the unlawfulness of the criminal defendant’s
attempt to resist it. Though occurring in one continuous chain of events, two
isolated factual contexts would exist, the first giving rise to criminal liability on
the part of the criminal defendant, and the second giving rise to civil liability on
the part of the arresting officer.’ ” (Yount v. City of Sacramento (2008) 43 Cal.4th
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885, 899 [76 Cal.Rptr.3d 787, 183 P.3d 471], original italics.)
• “Plaintiffs contend that the use of force is unlawful because the arrest itself is
unlawful. But that is not so. We have expressly held that claims for false arrest
and excessive force are analytically distinct.” (Sharp v. County of Orange (9th
Cir. 2017) 871 F.3d 901, 916.)
• “[T]he district court effectively required the jury to presume that the arrest was
constitutionally lawful, and so not to consider facts concerning the basis for the
arrest. Doing so removed critical factual questions that were within the jury’s
province to decide. For instance, by taking from the jury the question whether
[officer]’s arrest of [plaintiff] for resisting or obstructing a police officer was
lawful, the district judge implied simultaneously that [plaintiff] was in fact
resisting or failing to obey the police officer’s lawful instructions. Presuming
such resistance could certainly have influenced the jury’s assessment of ‘the need
for force,’ as well as its consideration of the other Graham factors, including
‘whether [the suspect] is actively resisting arrest or attempting to evade arrest by
flight. By erroneously granting judgment as a matter of law on [plaintiff]’s
unlawful arrest claim, the district court impermissibly truncated the jury’s
consideration of [plaintiff]’s excessive force claim.” (Velazquez v. City of Long
Beach (9th Cir. 2015) 793 F.3d 1010, 1027, original italics.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 981,
985
Chin et al., California Practice Guide: Employment Litigation, Ch.7-G, Unruh Civil
Rights Act, ¶ 7:1526 et seq. (The Rutter Group)
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law - Law Enforcement and Prosecution, ¶¶ 10.00-10.03 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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