CACI No. 441. Negligent Use of Deadly Force by Peace Officer - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2024 edition)

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441.Negligent Use of Deadly Force by Peace Officer - Essential
Factual Elements
A peace officer may use deadly force only when necessary in defense of
human life. [Name of plaintiff] claims that [name of defendant] was
negligent in using deadly force to [arrest/detain/ [,/or] prevent escape of/
[,/or] overcome resistance to] [him/her/nonbinary pronoun/name of
decedent]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] was a peace officer;
2. That [name of defendant] used deadly force on [name of
plaintiff/decedent];
3. That [name of defendant]’s use of deadly force was not necessary
to defend human life;
4. That [name of plaintiff/decedent] was [harmed/killed]; and
5. That [name of defendant]’s use of deadly force was a substantial
factor in causing [name of plaintiff/decedent]’s [harm/death].
[Name of defendant]’s use of deadly force was necessary to defend human
life only if a reasonable officer in the same situation would have believed,
based on the totality of the circumstances known to or perceived by
[name of defendant] at the time, that deadly force was necessary [either]:
[to defend against an imminent threat of death or serious bodily injury
to [name of defendant] [and/or] [another person]][; or/.]]
[to apprehend a fleeing person for a felony, when all of the following
conditions are present:
i. The felony threatened or resulted in death or serious bodily
injury to another;
ii. [Name of defendant] reasonably believed that the person fleeing
would cause death or serious bodily injury to another unless
immediately apprehended; and
iii. [Name of defendant] made reasonable efforts to identify
[himself/herself/nonbinary pronoun] as a peace officer and to
warn that deadly force may be used, unless the officer had
objectively reasonable grounds to believe the person is aware
of those facts.]
[A peace officer must not use deadly force against persons based only on
the danger those persons pose to themselves, if an objectively reasonable
officer would believe the person does not pose an imminent threat of
death or serious bodily injury to the peace officer or to another person.]
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[A person being [arrested/detained] has a duty not to use force to resist a
peace officer unless the peace officer is using unreasonable force.]
[“Deadly force” is force that creates a substantial risk of causing death
or serious bodily injury. It is not limited to the discharge of a firearm.]
A threat of death or serious bodily injury is “imminent” if, based on the
totality of the circumstances, a reasonable officer in the same situation
would believe that a person has the present ability, opportunity, and
apparent intent to immediately cause death or serious bodily injury to
the peace officer or to another person. An imminent harm is not merely
a fear of future harm, no matter how great the fear and no matter how
great the likelihood of the harm, but is one that, from appearances, must
be instantly confronted and addressed.
“Totality of the circumstances” means all facts known to or perceived by
the peace officer at the time, including the conduct of [name of defendant]
and [name of plaintiff/decedent] leading up to the use of deadly force. In
determining whether [name of defendant]’s use of deadly force was
necessary in defense of human life, you must consider [name of
defendant]’s tactical conduct and decisions before using deadly force on
[name of plaintiff/decedent] and whether [name of defendant] used other
available resources and techniques as [an] alternative[s] to deadly force,
if it was reasonably safe and feasible to an objectively reasonable officer.
[A peace officer who makes or attempts to make an arrest does not have
to retreat or stop because the person being arrested is resisting or
threatening to resist. Tactical repositioning or other deescalation tactics
are not retreat. A peace officer does not lose the right to self-defense by
using objectively reasonable force to [arrest/detain/ [,/or] prevent escape/
[,/or] overcome resistance].]
New November 2020
Directions for Use
Use this instruction for a negligence claim arising from a peace officers use of
deadly force. Penal Code section 835a preserves the “reasonable force” standard for
nondeadly force, but creates a separate, higher standard that authorizes a peace
officer to use deadly force only when “necessary in defense of human life.” If the
plaintiff claims that the defendant used both deadly and nondeadly force, or if the
jury must decide whether the force used was deadly or nondeadly, this instruction
may be used along with the corresponding essential elements for negligence
involving nondeadly force. See CACI No. 440, Negligent Use of Nondeadly Force
by Law Enforcement Offıcer in Arrest or Other Seizure - Essential Factual Elements.
Element 1 may be stipulated to or decided by the judge as a matter of law. In such
a case, the judge must instruct the jury that the defendant was a peace officer. If
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there are contested issues of fact regarding element 1, include the specific factual
findings necessary for the jury to determine whether the defendant was a peace
officer.
Select either or both bracketed options concerning the justifications for using deadly
force under Penal Code section § 835a(c) depending on the facts of the case. If only
one justification is supported by the facts, omit the either/or language. Include the
bracketed sentence following the justifications if the plaintiff claims that the only
threat the plaintiff posed was self-harm. A peace officer may not use deadly force
against a person based on a danger that person poses to themselves if an objectively
reasonable officer would believe the person does not pose an imminent threat of
death or serious bodily injury to the peace officer or to another person. (Pen. Code,
§ 835a(c)(2).)
“Deadly force” means any use of force that creates a substantial risk of causing
death or serious bodily injury, including, but not limited to, the discharge of a
firearm. (Pen. Code, § 835a(e)(1).) The definition may be omitted from the
instruction if a firearm was used. Note that this definition does not require that the
encounter result in the death of the person against whom the force was used. If
there is no dispute about the use of deadly force, the court should instruct the jury
that deadly force was used.
Include the final bracketed paragraph only if the defendant claims that the person
being arrested resisted arrest or threatened resistance.
In a wrongful death or survival action, use the name of the decedent victim where
applicable and further modify the instruction as appropriate.
Sources and Authority
Legislative Findings Regarding Use of Force by Law Enforcement. Penal Code
section 835a(a).
When Use of Deadly Force Is Justified. Penal Code section 835a(c).
When Peace Officer Need Not Retreat. Penal Code section 835a(d).
Definitions. Penal Code section 835a(e).
“Peace Officer” Defined. Penal Code section 830 et seq.
“There is an abundance of authority permitting a plaintiff to go to the jury on
both intentional and negligent tort theories, even though they are inconsistent. It
has often been pointed out that there is no prohibition against pleading
inconsistent causes of action stated in as many ways as plaintiff believes his
evidence will show, and he is entitled to recover if one well pleaded count is
supported by the evidence.” (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575,
586 [86 Cal.Rptr. 465, 468 P.2d 825].)
“The evidence relevant to negligence and intentional tort overlaps here and
presents a case similar to Grudt v. City of Los Angeles, supra, 2 Cal.3d 575. . . .
[¶] This court held it was reversible error to exclude the negligence issue from
the jury even though plaintiff also had pled intentional tort. The court pointed to
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the rule that a party may proceed on inconsistent causes of action unless a
nonsuit is appropriate.” (Munoz v. Olin (1979) 24 Cal.3d 629, 635 [156 Cal.Rptr.
727, 596 P.2d 1143].)
“[T]here is no right to use force, reasonable or otherwise, to resist an unlawful
detention . . . .” (Evans v. City of Bakersfield (1994) 22 Cal.App.4th 321, 333
[27 Cal.Rptr.2d 406].)
“[E]xecution of an unlawful arrest or detention does not give license to an
individual to strike or assault the officer unless excessive force is used or
threatened; excessive force in that event triggers the individual’s right of self-
defense.” (Evans, supra, 22 Cal.App.4th at p. 331, original italics, internal
citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 427, 993
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 seq. (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.22
(Matthew Bender)
California Civil Practice: Torts § 12:22 (Thomson Reuters)
442-449. Reserved for Future Use
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