California Civil Jury Instructions (CACI) (2017)

440. Unreasonable Force by Law Enforcement Officer in Arrest or Other Seizure— Essential Factual Elements

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440.Unreasonable Force by Law Enforcement Officer in Arrest or
Other Seizure Essential Factual Elements
A law enforcement officer may use reasonable force to [arrest/detain] a
person when the officer has reasonable cause to believe that that person
has committed or is committing a crime. However, the officer may use
only that degree of force necessary to accomplish the [arrest/detention].
[Name of plaintiff] claims that [name of defendant] used unreasonable
force in [arresting/detaining] [him/her]. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] used force in [arresting/detaining] [name
of plaintiff];
2. That the amount of force used by [name of defendant] was
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s use of unreasonable force was a
substantial factor in causing [name of plaintiff]’s harm.
In deciding whether [name of defendant] used unreasonable force, you
must consider all of the circumstances of the [arrest/detention] and
determine what force a reasonable [insert type of peace offıcer] in [name
of defendant]’s position would have used under the same or similar
circumstances. Among the factors to be considered are the following:
(a) Whether [name of plaintiff] reasonably appeared to pose an
immediate threat to the safety of [name of defendant] or others;
(b) The seriousness of the crime at issue; [and]
(c) Whether [name of plaintiff] was actively resisting
[arrest/detention] or attempting to avoid [arrest/detention] by
flight[; and/.]
[(d) [Name of defendant]’s tactical conduct and decisions before using
[deadly] force on [name of plaintiff].]
New June 2016
Directions for Use
Use this instruction if the plaintiff makes a negligence claim under state law arising
from the force used in effecting an arrest or detention. Such a claim is often
combined with a claimed civil rights violation under 42 United States Code section
1983 (See CACI No. 3020, Excessive Use of Force—Unreasonable Arrest or Other
Seizure—Essential Factual Elements.) It might also be combined with a claim for
battery. See CACI No. 1305, Battery by Peace Offıcer. For additional authorities on
excessive force by a law enforcement officer, see the Sources and Authority to
these two CACI instructions.
Factors (a), (b), and (c) are often referred to as the “Graham factors.” (See Graham
v. Connor (1989) 490 U.S. 386, 396 [109 S.Ct. 1865, 104 L.Ed.2d 443].) The
Graham factors are to be applied under California negligence law. (Hernandez v.
City of Pomona (2009) 46 Cal.4th 501, 514 [94 Cal.Rptr.3d 1, 207 P.3d 506].)
They are not exclusive (see Glenn v. Wash. County (9th Cir. 2011) 661 F.3d 460,
467–468.); additional factors may be added if appropriate to the facts of the case. If
negligence, civil rights, and battery claims are all involved, the instructions can be
combined so as to give the Graham factors only once. A sentence may be added to
advise the jury that the factors apply to all three claims.
Give optional factor (d) if the officer’s conduct leading up to the need to use force
is at issue. Liability can arise if the earlier tactical conduct and decisions show, as
part of the totality of circumstances, that the ultimate use of force was
unreasonable. In this respect, California negligence law differs from the federal
standard under the Fourth Amendment. (Hayes v. County of San Diego (2014) 57
Cal. 4th 622, 639 [160 Cal.Rptr.3d 684, 305 P.3d 252].)
Sources and Authority
• Use of Reasonable Force to Arrest. California Penal Code section 835a.
“Consistent with these principles and the factors the high court has identified,
the federal court in this case did not instruct the jury to conduct some abstract
or nebulous balancing of competing interests. Instead, as noted above, it
instructed the jury to determine the reasonableness of the officers’ actions in
light of ‘the totality of the circumstances at the time,’ including ‘the severity of
the crime at issue, whether the plaintiff posed a reasonable threat to the safety
of the officer or others, and whether the plaintiff was actively resisting detention
or attempting to escape.’ The same consideration of the totality of the
circumstances is required in determining reasonableness under California
negligence law. Moreover, California’s civil jury instructions specifically direct
the jury, in determining whether police officers used unreasonable force for
purposes of tort liability, to consider the same factors that the high court has
identified and that the federal court’s instructions in this case set forth. (Judicial
Council of Cal. Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in
arguing that the federal and state standards of reasonableness differ in that the
former involves a fact finder’s balancing of competing interests.” (Hernandez,
supra, 46 Cal.4th at p. 514, internal citation omitted.)
• “Determining whether the force used to effect a particular seizure is
‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘ “the
nature and quality of the intrusion on the individual’s Fourth Amendment
interests” ’ against the countervailing governmental interests at stake. Our
Fourth Amendment jurisprudence has long recognized that the right to make an
arrest or investigatory stop necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it. Because ‘[t]he test of
reasonableness under the Fourth Amendment is not capable of precise definition
or mechanical application,’ however, its proper application requires careful
attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” (Graham, supra, 490 U.S. at p. 396,
internal citations omitted.)
• “The most important of these [Graham factors, above] is whether the suspect
posed an immediate threat to the officers or others, as measured objectively
under the circumstances.” (Mendoza v. City of West Covina (2012) 206
Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)
• “Plaintiff must prove unreasonable force as an element of the tort.” (Edson v.
City of Anaheim (1998) 63 Cal.App.4th 1269, 1272 [74 Cal.Rptr.2d 614].)
• “ ‘ “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight. . . . [T]he question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation. . . .” ’ In
calculating whether the amount of force was excessive, a trier of fact must
recognize that peace officers are often forced to make split-second judgments, in
tense circumstances, concerning the amount of force required.” (Brown v.
Ransweiler (2009) 171 Cal.App.4th 516, 527–528 [89 Cal.Rptr.3d 801], internal
citations omitted.)
• “ ‘[A]s long as an officer’s conduct falls within the range of conduct that is
reasonable under the circumstances, there is no requirement that he or she
choose the “most reasonable” action or the conduct that is the least likely to
cause harm and at the same time the most likely to result in the successful
apprehension of a violent suspect, in order to avoid liability for negligence.’ ”
(Hayes v. County of San Diego (2014) 57 Cal. 4th 622, 632 [160 Cal.Rptr.3d
684, 305 P.3d 252].)
• “A police officer’s use of deadly force is reasonable if ‘ “ ‘the officer has
probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.’ . . .” . . .’ ” (Brown, supra,
171 Cal.App.4th at p. 528.)
• “Law enforcement personnel’s tactical conduct and decisions preceding the use
of deadly force are relevant considerations under California law in determining
whether the use of deadly force gives rise to negligence liability. Such liability
can arise, for example, if the tactical conduct and decisions show, as part of the
totality of circumstances, that the use of deadly force was unreasonable.”
(Hayes, supra, 57 Cal.4th at p. 639.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 424
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 seq. (Matthew
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.22
(Matthew Bender)
441–449. Reserved for Future Use