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

Judicial Council of California Civil Jury Instructions (2020 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. [By [specify
conduct], [name of plaintiff] was exercising [his/her/nonbinary pronoun]
constitutionally protected right of [insert right, e.g., privacy].] 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;]
2. That [name of defendant][specify alleged retaliatory conduct];
3. That [name of defendant]’s acts were motivated, at least in part,
by [name of plaintiff]’s protected activity;
4. That [name of defendant]’s acts would likely have deterred a
person of ordinary firmness from engaging in that protected
activity; and
5. 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 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.]]
New June 2010; Revised December 2010, Revised and renumbered from CACI No.
3016 December 2012; Revised June 2013, May 2020
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
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. Whether plaintiff was engaged in a
constitutionally protected activity will usually have been resolved by the court as a
matter of law. If so, include the optional statement in the opening paragraph and
omit element 1. If there is a question of fact that the jury must resolve with regard
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to the constitutionally protected activity, include element 1 and give the last part of
the instruction.
There is perhaps some uncertainty with regard to the requirement in element 3 that
the retaliatory act may be motivated, in part, by the protected activity. While the
element is so stated in Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049,
1062-1063 [99 Cal.Rptr.3d 661], the court also was of the view that the defendant
may avoid liability by proving that, notwithstanding a retaliatory motive, it also had
legitimate reasons for its actions and would have taken the same steps for those
reasons alone. (Id. at pp. 1086-1087, finding persuasive Greenwich Citizens Comm.
v. Counties of Warren & Washington Indus. Dev. Agency (2d Cir. 1996) 77 F.3d 26,
30.) Therefore, the fact that retaliation may have motivated the defendant only in
part may not always be sufficient for liability. In the Ninth Circuit, there is authority
for both a “but for” and a “substantial or motivating factor” standard. (Compare
Karl v. City of Mountlake Terrace (9th Cir. 2012) 678 F.3d 1062, 1072 [defendant
may show that: (1) the adverse employment action was based on protected and
unprotected activities; and (2) defendant would have taken the adverse action if the
proper reason alone had existed] with Blair v. Bethel Sch. Dist. (9th Cir. 2010) 608
F.3d 540, 543 [third element expressed as “there was a substantial causal
relationship between the constitutionally protected activity and the adverse action”].)
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, supra, 177 Cal.App.4th at pp. 1062-1063.)
• “[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.)
• “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].)
• “[A]n individual has a right ‘to be free from police action motivated by
retaliatory animus but for which there was probable cause.’ ” (Ford v. City of
Yakima (9th Cir. 2013) 706 F.3d 1188, 1193.)
• “Probable cause is not irrelevant to an individual’s claim that he was booked and
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jailed in retaliation for his speech. Probable cause for the initial arrest can be
evidence of a police officer’s lack of retaliatory animus for subsequently booking
and jailing an individual. However, that determination should be left to the trier
of fact once a plaintiff has produced evidence that the officer’s conduct was
motivated by retaliatory animus.” (Ford,supra, 706 F.3d at p. 1194 fn.2, internal
citation omitted.)
• “[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.)
• “To satisfy the [causation] requirement, the evidence must be sufficient to
establish that the officers’ desire to chill [plaintiff]’s speech was a but-for cause
of their conduct. In other words, would [plaintiff] have been booked and jailed,
rather than cited and arrested, but for the officers’ desire to punish [him] for his
speech?” (Ford,supra, 706 F.3d at p. 1194.)
• “[Defendant] may avoid liability if he shows that a ‘final decision maker’s
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 maker’s wholly independent investigation and decision
establish that ‘the employee’s protected speech was not a but-for cause of the
adverse employment action.’ ” (Karl,supra, 678 F.3d at pp. 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,
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¶ 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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