California Civil Jury Instructions (CACI) (2017)

3020. Unruh Civil Rights Act (Civ. Code, §§ 51, 52) - Essential Factual Elements

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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
[detaining/arresting] [him/her]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] used force in [detaining/arresting] [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. 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
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
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.
Additional considerations and verdict form questions will be needed if there is a
question of fact as to whether the defendant law enforcement officer had time for
reflective decision-making before applying force. If the officers’ conduct required a
reaction to fast-paced circumstances presenting competing public safety obligations,
the plaintiff must prove intent to harm. (See Green v. County of Riverside (2015)
238 Cal.App.4th 1363, 1372 [190 Cal.Rptr.3d 693].)
No case has yet determined, and therefore it is unclear, whether the defense has
either the burden of proof or the burden of producing evidence on reaction to fast-
paced circumstances. (See Evid. Code, §§ 500 [party has burden of proof as to each
fact the existence or nonexistence of which is essential to the claim for relief or
defense asserted], 550 [burden of producing evidence as to particular fact is on
party against whom a finding on the fact would be required in absence of further
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 SeizureEssential Factual Elements. For an
instruction for use alleging excessive force as a battery, see CACI No. 1305,
Battery by Police Offıcer.
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.)
• “[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.)
• “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.)
• “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 Cnty. (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.)
• “In the absence of material factual disputes, the objective reasonableness of a
police officer’s conduct is ‘a pure question of law.’ ‘Where the objective
reasonableness of an officer’s conduct turns on disputed issues of material fact,’
however, ‘it is “a question of fact best resolved by a jury.” ’ ” (Lowry v. City of
San Diego (2016) (9th Cir. 2016) 818 F.3d 840, 846.)
• “A reasonable jury could find that any belief on the officers’ part that they faced
an immediate threat when they released [dog] was unjustified. Thus, viewing
the evidence in the light most favorable to [plaintiff], the City has failed to
show that there are no questions of fact precluding summary judgment in its
favor. [¶][¶] The district court found otherwise, reasoning that the ‘officers
reasonably and objectively feared for their own safety and any possible
hostage’s safety,’ because they were searching for a ‘burglary suspect . . . at
night,’ because they ‘did not know whether the suspect was armed,’ and
because the door . . . was “ ‘ajar, but no lights were on inside.’ [¶] A
reasonable jury could easily disagree with this portrayal. The district court’s
reasoning assumes that any person inside an office building where a security
alarm has been tripped at night necessarily poses an immediate threat to their
safety or that of others. We find this assumption unwarranted. These facts,
standing alone, do not provide an ‘articulable basis for believing that” the
occupant is ‘armed or that [she or] he posed an immediate threat to anyone’s
safety.’ ” (Lowry, supra, 818 F.3d at pp. 849−851, footnotes omitted.)
• “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 Fourth Amendment’s ‘reasonableness’ standard is not the same as the
standard of ‘reasonable care’ under tort law, and negligent acts do not incur
constitutional liability.” (Hayes, supra, 57 Cal.4th at p. 639.)
• “[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.)
• “[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.)
• “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.)
• “In any event, the court correctly instructed the jury on the mental state
required in a Fourteenth Amendment excessive use of force case under section
1983 because this case did not involve reflective decisionmaking by the officers,
but instead their reaction to fast-paced circumstances presenting competing
public safety obligations. Given these circumstances, [plaintiff] was required to
prove that the officers acted with a purpose to cause harm to her son.” (Green v.
County of Riverside (2015) 238 Cal.App.4th 1363, 1372 [190 Cal.Rptr.3d 693].)
• “[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].)
• “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.)
• “[W]e have stated that if the police were summoned to the scene to protect a
mentally ill offender from himself, the government has less interest in using
force. 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.)
• “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
• “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.)
• “[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 885, 899 [76 Cal.Rptr.3d 787, 183 P.3d 471],
original italics.)
• “[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.)
• “[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 (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
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)