CACI No. 3050. Retaliation - Essential Factual Elements (42 U.S.C. § 1983)

Judicial Council of California Civil Jury Instructions (2022 edition)

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3050.Retaliation - Essential Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [name of defendant] retaliated against [him/
her/nonbinary pronoun] for exercising a constitutional right. To establish
retaliation, [name of plaintiff] must prove all of the following:
1. That [he/she/nonbinary pronoun] was engaged in a constitutionally
protected activity[, which I will determine after you, the jury,
decide certain facts];
[2. That [name of defendant] did not have probable cause for the
[arrest/prosecution][, which I will determine after you, the jury,
decide certain facts];]
3. That [name of defendant] [specify alleged retaliatory conduct];
4. That [name of plaintiff]’s constitutionally protected activity was a
substantial or motivating factor for [name of defendant]’s acts;
5. That [name of defendant]’s acts would likely have deterred a
reasonable person from [specify protected activity, e.g., filing a
lawsuit]; and
6. That [name of plaintiff] was harmed as a result of [name of
defendant]’s conduct.
The law requires that the trial judge, rather than the jury, decide if
[name of plaintiff] has proven element 1 [and element 2] above.
[But before I can do so, you must decide whether [name of plaintiff] has
proven the following: [list all factual disputes that must be resolved by the
jury.].]
[or]
[The court has determined that by [specify conduct], [name of plaintiff]
was exercising [his/her/nonbinary pronoun] constitutionally protected right
of [insert right, e.g., privacy].]
[or]
[The court has determined that [name of defendant] did not have
probable cause for the [arrest/prosecution].]
New June 2010; Revised December 2010; Renumbered from CACI No. 3016 and
Revised December 2012; Revised June 2013, May 2020, May 2021, November 2021
Directions for Use
Give this instruction along with CACI No. 3000, Violation of Federal Civil
Rights - In General - Essential Factual Elements, if the claimed civil rights violation
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is retaliation for exercising constitutionally protected rights, including exercise of
free speech rights as a private citizen. For a claim by a public employee who alleges
that they suffered an adverse employment action in retaliation for their speech on an
issue of public concern, see CACI No. 3053, Retaliation for Exercise of Free
Speech Rights - Public Employee - Essential Factual Elements.
The retaliation should be alleged generally in element 1 of CACI No. 3000. The
constitutionally protected activity refers back to the right alleged to have been
violated in element 3 of CACI No. 3000.
Element 2 applies only in retaliatory arrest and prosecution cases. Omit element 2 if
the retaliation alleged is not based on an arrest or prosecution.
Whether plaintiff was engaged in a constitutionally protected activity and, if
applicable, whether probable cause for arrest or prosecution was absent (or whether
the no-probable-cause requirement does not apply because of an exception) will
usually have been resolved by the court as a matter of law before trial. (See Nieves
v. Bartlett (2019) ___ U.S. ___ [139 S.Ct. 1715, 1724, 1727, 204 L.Ed.2d 1]
[requiring a plaintiff to plead and prove the absence of probable cause for arrest but
stating an exception to the no-probable-cause requirement “when a plaintiff presents
objective evidence that he was arrested when otherwise similarly situated individuals
not engaged in the same sort of protected speech had not been”].) If there is a
question of fact that the jury must resolve, include the optional bracketed language
with element 1 and/or element 2, and give the first bracketed option of the final
paragraph, identifying with specificity all disputed factual issues the jury must
resolve for the court to determine the contested element or elements. If the court has
determined element 1 or element 2, omit the optional bracketed language of the
element and instruct the jury that the element has been determined as a matter of
law by giving the second and/or third optional sentence(s) in the final paragraph.
If there are contested issues of fact regarding the exception to the no-probable-cause
requirement, this instruction may be augmented to include the specific factual
findings necessary for the court to determine whether the exception applies.
The plaintiff must show that the defendant acted with a retaliatory motive and that
the motive was a “but for” cause of the plaintiff’s injury, i.e., that the retaliatory
action would not have been taken absent the retaliatory motive. (See Nieves, supra,
139 S.Ct. at p. 1722.) A plaintiff may prove causal connection with circumstantial
evidence but establishing a causal connection between a defendant’s animus and a
plaintiff’s injury will depend on the type of retaliation case. (Id. at pp. 1722-1723
[distinguishing straightforward cases from more complex cases].)
If the defendant claims that the response to the plaintiff’s constitutionally protected
activity was prompted by a legitimate reason, the defendant may attempt to persuade
the jury that the defendant would have taken the same action even in the absence of
the alleged impermissible, retaliatory reason. See CACI No. 3055, Rebuttal of
Retaliatory Motive. (Id. at p. 1727.)
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Sources and Authority
“Where, as here, the plaintiff claims retaliation for exercising a constitutional
right, the majority of federal courts require the plaintiff to prove that (1) he or
she was engaged in constitutionally protected activity, (2) the defendant’s
retaliatory action caused the plaintiff to suffer an injury that would likely deter a
person of ordinary firmness from engaging in that protected activity, and (3) the
retaliatory action was motivated, at least in part, by the plaintiff’s protected
activity.” (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049,
1062-1063 [99 Cal.Rptr.3d 661].)
“[A]ctions that are otherwise proper and lawful may nevertheless be actionable if
they are taken in retaliation against a person for exercising his or her
constitutional rights.” (Tichinin, supra, 177 Cal.App.4th at p. 1084.)
“The plaintiff must show that the retaliation was a substantial or motivating
factor behind the [arrest], and, if that showing is made, the defendant can prevail
only by showing that the [arrest] would have been initiated without respect to
retaliation.” (Nieves, supra, 139 S.Ct. at p. 1725, internal citation omitted.)
“To state a First Amendment retaliation claim, a plaintiff must plausibly allege
‘that (1) he was engaged in a constitutionally protected activity, (2) the
defendant’s actions would chill a person of ordinary firmness from continuing to
engage in the protected activity and (3) the protected activity was a substantial
or motivating factor in the defendant’s conduct.’ To ultimately ‘prevail on such a
claim, a plaintiff must establish a “causal connection” between the government
defendant’s “retaliatory animus” and the plaintiff’s “subsequent injury.”
Specifically, a plaintiff must show that the defendant’s retaliatory animus was ‘a
“but-for” cause, meaning that the adverse action against the plaintiff would not
have been taken absent the retaliatory motive.’ (Capp v. County of San Diego
(9th Cir. 2019) 940 F.3d 1046, 1053, internal citations omitted.)
“For a number of retaliation claims, establishing the causal connection between a
defendant’s animus and a plaintiff’s injury is straightforward. Indeed, some of
our cases in the public employment context ‘have simply taken the evidence of
the motive and the discharge as sufficient for a circumstantial demonstration that
the one caused the other,’ shifting the burden to the defendant to show he would
have taken the challenged action even without the impermissible motive. But the
consideration of causation is not so straightforward in other types of retaliation
cases.” Nieves, supra, 139 S.Ct. at pp. 1722-1723.)
“To demonstrate retaliation in violation of the First Amendment, [the plaintiff]
must ultimately prove first that [defendant] took action that ‘would chill or
silence a person of ordinary firmness from future First Amendment activities.’
(Skoog v. County of Clackamas (9th Cir. 2006) 469 F.3d 1221, 1231-1232,
footnote and citation omitted.)
“The plaintiff pressing a retaliatory arrest claim must plead and prove the
absence of probable cause for the arrest.” (Nieves v. Bartlett (2019) ___ U.S. ___
[139 S.Ct. 1715, 1724, 204 L.Ed.2d 1].)
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“[W]e conclude that the no-probable-cause requirement should not apply when a
plaintiff presents objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort of protected speech
had not been.” (Nieves, supra, 139 S.Ct. at p. 1727.)
“[T]he evidence of [plaintiff]’s alleged injuries, if believed, is sufficient to
support a finding that the retaliatory action against him would deter a person of
ordinary firmness from exercising his or her First Amendment rights. [¶]
[Defendant] argues that plaintiff did not suffer any injury - i.e., [defendant]’s
action did not chill [plaintiff]’s exercise of his rights - because he continued to
litigate against [defendant]. However, that [plaintiff] persevered despite
[defendant]’s action is not determinative. To reiterate, in the context of a claim
of retaliation, the question is not whether the plaintiff was actually deterred but
whether the defendant’s actions would have deterred a person of ordinary
firmness.” (Tichinin, supra, 177 Cal.App.4th at p. 1082.)
“Intent to inhibit speech, which ‘is an element of the [retaliation] claim,’ can be
demonstrated either through direct or circumstantial evidence.” (Mendocino
Envtl. Ctr. v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1300-1301,
internal citation omitted.)
“[Defendant] may avoid liability if he shows that a ‘final decision makers
independent investigation and termination decision, responding to a biased
subordinate’s initial report of misconduct, . . . negate[s] any causal link’
between his retaliatory motive and the adverse employment action. This is
because a final decision makers wholly independent investigation and decision
establish that ‘the employee’s protected speech was not a but-for cause of the
adverse employment action.’ (Karl v. City of Mountlake Terrace (9th Cir. 2012)
678 F.3d 1062, 1072-1073, internal citation omitted.)
“While the scope, severity and consequences of [their] actions are belittled by
defendants, we have cautioned that ‘a government act of retaliation need not be
severe . . . [nor] be of a certain kind’ to qualify as an adverse action.” (Marez v.
Bassett (9th Cir. 2010) 595 F.3d 1068, 1075.)
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 894,
895, 978
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Opportunity
Laws, § 40.26 (Matthew Bender)
3 Civil Rights Actions, Ch. 17, Discrimination in Federally Assisted Programs,
17.24B (Matthew Bender)
4 Civil Rights Actions, Ch. 21A, Employment Discrimination Based on Race, Color,
Religion, Sex, or National Origin, 21.22(f) (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.37 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.42 (Matthew Bender)
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