California Civil Jury Instructions (CACI)
3025. Bane Act (Civ. Code, § 52.1) - Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] intentionally interfered with [or attempted to interfere with] [his/her] civil rights by threatening or committing violent acts. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] interfered with [or attempted to interfere with] [name of plaintiff]'s right [insert alleged constitutional or statutory right] by threatening or committing violent acts;
2. [That [name of plaintiff] reasonably believed that if [he/she] exercised [his/her] right [insert right, e.g., "to vote"] [name of defendant] would commit violence against [him/her] or [his/her] property;]
[That [name of defendant] injured [name of plaintiff] or [his/ her] property to prevent [him/her] from exercising [his/ her] right [insert right] or retaliate against [name of plaintiff] for having exercised [his/her] right [insert right];] 3. That [name of plaintiff] was harmed; and 4. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.
Directions for Use
Unless plaintiff is claiming actual damages, omit elements 3 and 4.
Sources and Authority
Civil Code section 52.1 provides, in part: (a) If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, r any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured.
(b) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured.
Civil Code section 52(b) provides: Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following:
(1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages.
(2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right, or by the Attorney General, a district attorney, or a city attorney.
(3) Attorney's fees as may be determined by the court.
"The Legislature enacted section 52.1 to stem a tide of hate crimes." (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338 [70 Cal.Rptr.2d 844, 944 P.2d 941], internal citation omitted.)
"Civil Code section 52.1, the Bane Act civil counterpart of [Penal Code] section 422.6, recognizes a private right of action for damages and injunctive relief for interference with civil rights." (In re M.S. (1995) 10 Cal.4th 698, 715 [42 Cal.Rptr.2d 355, 896 P.2d 1365].)
"[S]ection 52.1 does require an attempted or completed act of interference with a legal right, accompanied by a form of coercion." (Jones, supra, 17 Cal.4th at p. 334.)
Section 52.1 is not a remedy to be used against private citizens for violations of rights that apply only to the state or its agents. (Jones, supra, 17 Cal.4th at p. 337 [right to be free from unreasonable search and seizure].)
"[I]t is clear that to state a cause of action under section 52.1 there must first be violence or intimidation by threat of violence." (Cabesuela v. Browning-Ferris Industries (1998) 68 Cal.App.4th 101, 111 [80 Cal.Rptr.2d 60].)
Assembly Bill 2719 (Stats. 2000, ch. 98) abrogated the holding of Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, which held that a plaintiff was required to be a member of a specified protected class in order to bring an action under section 52.1: "It is the intent of the Legislature in enacting this act to clarify that an action brought pursuant to Section 52.1 of the Civil Code does not require the individual whose rights are secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of California, to be a member of a protected class identified by its race, color, religion, or sex, among other things."
"Subdivision (j) of Civil Code section 52.1 provides that speech alone is insufficient to support such an action, except upon a showing that the speech itself threatens violence against a specific person or group of persons, the person or group of persons against whom the speech is directed 'reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence has the apparent ability to carry out the threat.' . . . The presence of the express 'reasonable fear' element, in addition to the 'apparent ability' element, in Civil Code section 52.1, governing civil actions for damages, most likely reflects the Legislature's determination [that] a defendant's civil liability should depend on the harm actually suffered by the victim." (In re M.S., supra, 10 Cal.4th at p. 715, internal citation omitted.)
8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, § 775
11 California Forms of Pleading and Practice, Ch. 117A, Civil Rights: Interference with Civil Rights by Threats, Intimidation, Coercion, or Violence, § 117A.11 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights (Matthew Bender)
(New September 2003)