CACI No. 3027. Affirmative Defense - Emergency

Judicial Council of California Civil Jury Instructions (2023 edition)

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3027.Affirmative Defense - Emergency
[Name of defendant] claims that a search warrant was not required. To
succeed on this defense, [name of defendant] must prove that a peace
officer, under the circumstances, would have reasonably believed that
violence was imminent and that there was an immediate need to protect
[[himself/herself/nonbinary pronoun]/ [or] another person] from serious
New December 2013
Directions for Use
The emergency defense is similar to the exigent circumstances defense. (See CACI
No. 3026, Affırmative Defense - Exigent Circumstances.) Emergency requires
imminent violence and a need to protect from harm. In contrast, exigent
circumstances is broader, reaching such things as a need to prevent escape or the
destruction of evidence. (See Hopkins v. Bonvicino (9th Cir. 2009) 573 F.3d 752,
Sources and Authority
‘There are two general exceptions to the warrant requirement for home
searches: exigency and emergency.’ These exceptions are ‘narrow’ and their
boundaries are ‘rigorously guarded’ to prevent any expansion that would unduly
interfere with the sanctity of the home. In general, the difference between the
two exceptions is this: The ‘emergency’ exception stems from the police officers’
‘community caretaking function’ and allows them ‘to respond to emergency
situations’ that threaten life or limb; this exception does not [derive from] police
officers’ function as criminal investigators.’ By contrast, the ‘exigency’ exception
does derive from the police officers’ investigatory function; it allows them to
enter a home without a warrant if they have both probable cause to believe that
a crime has been or is being committed and a reasonable belief that their entry is
‘necessary to prevent . . . the destruction of relevant evidence, the escape of the
suspect, or some other consequence improperly frustrating legitimate law
enforcement efforts.’ (Hopkins, supra, 573 F.3d at p. 763, original italics, internal
citations omitted.)
“We previously have recognized that officers acting in their community
caretaking capacities and responding to a perceived emergency may conduct
certain searches without a warrant or probable cause. To determine whether the
emergency exception applies to a particular warrantless search, we examine
whether: ‘(1) considering the totality of the circumstances, law enforcement had
an objectively reasonable basis for concluding that there was an immediate need
to protect others or themselves from serious harm; and (2) the search’s scope
and manner were reasonable to meet the need.’ (Ames v. King County (9th Cir.
2017) 846 F.3d 340, 350.)
“The testimony that a reasonable officer would have perceived an immediate
threat to his safety is, at a minimum, contradicted by certain portions of the
record. The facts matter, and here, there are triable issues of fact as to whether
‘violence was imminent,’ and whether [defendant]’s warrantless entry was
justified under the emergency exception.” (Sandoval v. Las Vegas Metro. Police
Dept. (9th Cir. 2014) 756 F.3d 1154, 1165, internal citation omitted.)
“In sum, reasonable police officers in petitioners’ position could have come to
the conclusion that the Fourth Amendment permitted them to enter the . . .
residence if there was an objectively reasonable basis for fearing that violence
was imminent.” (Ryburn v. Huff (2012) 565 U.S. 469, 477 [132 S.Ct. 987, 181
L.Ed.2d 966].)
“[W]e have refused to hold that ‘domestic abuse cases create a per se’
emergency justifying warrantless entry. [¶] Indeed, all of our decisions involving
a police response to reports of domestic violence have required an objectively
reasonable basis for believing that an actual or imminent injury was unfolding in
the place to be entered.” (Bonivert v. City of Clarkston (9th Cir. 2018) 883 F.3d
865, 877, original italics, internal citations omitted.)
“[O]fficer safety may also fall under the emergency rubric.” (Sandoval, supra,
756 F.3d at p. 1163.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892, 893
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law - Law Enforcement and Prosecution, 10.04 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3028-3039. Reserved for Future Use

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