CACI No. 440. Unreasonable Force by Law Enforcement Officer in Arrest or Other Seizure - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2020 edition)

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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/nonbinary pronoun]. 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 the totality of the circumstances of the [arrest/detention]
and determine what force a reasonable [insert type of offıcer] in [name of
defendant]’s position would have used under the same or similar
circumstances. “Totality of the circumstances” means all facts known to
the officer at the time, including the conduct of [name of defendant] and
[name of plaintiff] leading up to the use of force. 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
force on [name of plaintiff].]
New June 2016; Revised May 2020
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
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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 - Essential Factual Elements.
For additional authorities on excessive force by a law enforcement officer, see the
Sources and Authority to these two CACI instructions.
For cases involving the use of deadly force by a peace officer, Penal Code section
835a may require modifications to the instruction.
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
• Legislative Findings re Use of Force by Law Enforcement. Penal Code section
• Use of Objectively Reasonable Force to Arrest. Penal Code section 835a(b).
• When Peace Officer Need Not Retreat. Penal Code section 835a(d).
• Definitions. Penal Code section 835a(e).
• “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
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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,supra, 57 Cal.4th at p. 632.)
• “The California Supreme Court did not address whether decisions before non-
deadly force can be actionable negligence, but addressed this issue only in the
context of ‘deadly force.’ ” (Mulligan v. Nichols (9th Cir. 2016) 835 F.3d 983,
991, fn. 7.)
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Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 496
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
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