CACI No. 3055. Rebuttal of Retaliatory Motive
Judicial Council of California Civil Jury Instructions (2025 edition)
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3055.Rebuttal of Retaliatory Motive
[Name of defendant] claims that [he/she/nonbinary pronoun/it] [specify
alleged retaliatory conduct, e.g., arrested plaintiff] because [specify
nonretaliatory reason for the adverse action].
If [name of plaintiff] proves that retaliation was a substantial or
motivating factor for [name of defendant]’s [specify alleged retaliatory
conduct], you must then consider if [name of defendant] would have taken
the same action even in the absence of [name of plaintiff]’s
constitutionally protected activity.
To succeed on this defense, [name of defendant] must prove that [he/she/
nonbinary pronoun/it] would have [specify alleged retaliatory conduct, e.g.,
arrested plaintiff] on the basis of [specify the defendant’s stated
nonretaliatory reason for the adverse action], regardless of retaliation for
[name of plaintiff]’s [specify constitutionally protected activity].
New May 2021
Directions for Use
This instruction sets forth a defendant’s response to a plaintiff’s claim of retaliation.
See CACI No. 3050, Retaliation - Essential Factual Elements. The defendant bears
the burden of proving the nonretaliatory reason for the allegedly retaliatory conduct.
(See Nieves v. Bartlett (2019) ___ U.S. ___ [139 S.Ct. 1715, 1725, 204 L.Ed.2d 1].
In retaliatory arrest and prosecution cases, use this instruction only if the court has
determined the absence of probable cause or that an exception to the no-probable-
cause requirement applies because the plaintiff presented objective evidence that
otherwise similarly situated individuals not engaged in the same sort of
constitutionally protected activity were not arrested or prosecuted. (See Nieves,
supra, 139 S.Ct. at p. 1727 [stating exception to no-probable-cause requirement
when otherwise similarly situated individuals were not arrested for the same
conduct].)
Sources and Authority
• “[I]f the plaintiff establishes the absence of probable cause, ‘then the Mt.
Healthy test governs: 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.)
• “Under Mt. Healthy, once a petitioner has made a showing of a First
Amendment retaliation claim, ‘the burden shifts to the government to show that
it “would have taken the same action even in the absence of the protected
conduct.” ’ The Government ‘must show more than that they “could have”
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punished the plaintiffs in the absence of the protected speech; instead, “the
burden is on the defendants to show” through evidence that they “would have”
punished the plaintiffs under those circumstances.’ ” (Bello-Reyes v. Gaynor (9th
Cir. 2021) 985 F.3d 696, 702, original italics, internal citations omitted.)
Secondary Sources
4 Witkin & Epstein, California Criminal Law (4th ed. 2020) Pretrial, § 367
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 511
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 894-895
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Opportunity
Laws, § 40.26 (Matthew Bender)
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law - Law Enforcement and Prosecution, ¶ 10.15 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
3056-3059. Reserved for Future Use
CACI No. 3055 CIVIL RIGHTS
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