3020 . Excessive Use of Force - Unreasonable Arrest or Other
Seizure - Essential Factual Elements (42 U.S.C. § 1983)
[ Name of plaintiff ] claims that [ name of defendant ] used excessive force in
[arresting/detaining] [him/her/ nonbinary pr onoun ] in violation of the
Fourth Amendment to the United States Constitution. T o 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 force used by [ name of defendant ] was excessive;
3. That [ name of defendant ] was acting or purporting to act in the
performance of [his/her/ nonbinary pronoun ] of f icial duties;
4. That [ name of plaintiff ] was harmed; and
5. That [ name of defendant ]’s use of excessive force was a substantial
factor in causing [ name of plaintiff ]’s harm.
Under the Fourth Amendment, force is excessive if it is not r easonably
necessary under the cir cumstances. In deciding whether for ce is
reasonably necessary or excessive, you should determine, based on all of
the facts and circumstances, what for ce a reasonable law enfor cement
of f icer on the scene would have used under the same or similar
circumstances. Y ou should consider 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 [or other circumstances
known to [ name of defendant ] at the time force was applied];
(c) Whether [ name of plaintiff ] was actively [resisting
[arrest/detention]/ [or] attempting to avoid [arrest/detention] by
(d) The amount of time [ name of defendant ] had to determine the type
and amount of force that reasonably appeared necessary, and any
changing circumstances during that time period[; and/.]
[(e) The type and amount of force used[; and/.]]
(f) [ Specify other factors particular to the case ].]
New September 2003; Revised June 2012; Renumber ed fr om CACI No. 3001
December 2012; Revised June 2015, June 2016, May 2020, November 2020
Directions for Use
The Fourth Amendment’ s “objective reasonableness” standard applies to all claims
of excessive force against law enforcement of ficers in the course of making an
arrest, investigatory stop, or other seizure brought under Title 42 United States Code
section 1983, whether deadly or not. ( Scott v . Harris (2007) 550 U.S. 372, 381-385
[127 S.Ct. 1769, 167 L.Ed.2d 686].)
The “of ficial duties” referred to in element 3 must be duties created by a state,
county , or municipal law , ordinance, or regulation. This aspect of color of law most
likely will not be an issue for the jury , so it has been omitted to shorten the wording
of element 3.
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 not exclusive. (See Glenn v . W ash. County (9th Cir . 2011) 673
F .3d 864, 872.) Other relevant factors include the availability of less intrusive
alternatives to the force employed, whether proper warnings were given, and
whether it should have been apparent to of ficers that the person they used force
against was emotionally disturbed. ( Id. ) These and other additional factors may be
added if appropriate to the facts of the case.
Claims of excessive force brought by pretrial detainees are governed by the
Fourteenth Amendment’ s Due Process Clause and are also analyzed under an
objective reasonableness standard. ( Kingsley v . Hendrickson (2015) 576 U.S. 389
[135 S.Ct. 2466, 2473, 192 L.Ed.2d 416].) Modify the instruction for use in a case
brought by a pretrial detainee involving the use of excessive force after arrest, but
before conviction. For an instruction on an excessive force claim brought by a
convicted prisoner , see CACI No. 3042, V iolation of Prisoner ’ s Federal Civil
Rights - Eighth Amendment - Excessive Force .
The legality or illegality of the use of deadly force under state law is not relevant to
the constitutional question. (Cf. People v . McKay (2002) 27 Cal.4th 601, 610 [117
Cal.Rptr .2d 236, 41 P .3d 59] [“[T]he [United States Supreme Court] has repeatedly
emphasized that the Fourth Amendment inquiry does not depend on whether the
challenged police conduct was authorized by state law”]; see also Pen. Code,
For instructions for use in a negligence claim under California common law based
on the same event and facts, see CACI No. 440, Negligent Use of Nondeadly For ce
by Law Enfor cement Offıcer in Arrest or Other Seizur e - Essential Factual Elements ,
and CACI No. 441, Negligent Use of Deadly For ce by Peace Offıcer - Essential
Factual Elements . For an instruction for use alleging excessive force as a battery ,
see CACI No. 1305A, Battery by Law Enfor cement Offıcer (Nondeadly
For ce) - Essential Factual Elements , and CACI No. 1305B, Battery by Peace
Offıcer (Deadly For ce) - Essential Factual Elements .
Sources and Authority
• “In addressing an excessive force claim brought under § 1983, analysis begins
CACI No. 3020 CIVIL RIGHTS
by identifying the specific constitutional right allegedly infringed by the
challenged application of force. In most instances, that will be either the Fourth
Amendment’ s prohibition against unreasonable seizures of the person, or the
Eighth Amendment’ s ban on cruel and unusual punishments, which are the two
primary sources of constitutional protection against physically abusive
governmental conduct.” ( Graham, supra, 490 U.S. at p. 395, internal citations
and footnote omitted.)
• “Where, as here, the excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment, which guarantees citizens the
right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of
the person.” ( Graham, supra, 490 U.S. at p. 394.)
• “In deciding whether the force deliberately used is, constitutionally speaking,
‘excessive,’ should courts use an objective standard only , or instead a subjective
standard that takes into account a defendant’ s state of mind? It is with respect to
this question that we hold that courts must use an objective standard.” ( Kingsley ,
supra, 576 U.S. at p. 396, original italics.)
• “[A]ll claims that law enforcement of ficers have used excessive force - deadly or
not - in the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard, rather than under a ‘substantive due process’ approach.” ( Graham,
supra, 490 U.S. at p. 395.)
• “The question in this case is whether a seizure occurs when an of ficer shoots
someone who temporarily eludes capture after the shooting. The answer is yes:
The application of physical force to the body of a person with intent to restrain
is a seizure, even if the force does not succeed in subduing the person.” ( T orr es
v . Madrid (2021) ___ U.S. ___ [141 S.Ct. 989, 993-994, 209 L.Ed.2d 190].)
• “ ‘The intrusiveness of a seizure by means of deadly force is unmatched.’ ‘The
use of deadly force implicates the highest level of Fourth Amendment interests
both because the suspect has a “fundamental interest in his own life” and
because such force “frustrates the interest of the individual, and of society , in
judicial determination of guilt and punishment.” ’ ” ( V os v . City of Newport
Beach (9th Cir . 2018) 892 F .3d 1024, 1031.)
• “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable of ficer on the scene, rather than with the 20/20 vision
of hindsight.” ( Graham, supra, 490 U.S. at p. 396.)
• “Because ‘[t]he test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,’ . . . 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 of ficers 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 citation omitted.)
CIVIL RIGHTS CACI No. 3020
• “The most important of these [factors from Graham , above] is whether the
suspect posed an immediate threat to the of ficers or others, as measured
objectively under the circumstances.” ( Mendoza v . City of W est Covina (2012)
206 Cal.App.4th 702, 712 [141 Cal.Rptr .3d 553].)
• “[The Graham ] factors, however , are not exclusive. W e ‘examine the totality of
the circumstances and consider “whatever specific factors may be appropriate in
a particular case, whether or not listed in Graham .” ’ Other relevant factors
include the availability of less intrusive alternatives to the force employed,
whether proper warnings were given and whether it should have been apparent
to of ficers that the person they used force against was emotionally disturbed.”
( Glenn, supra, 673 F .3d at p. 872, internal citations omitted.)
• “W ith respect to the possibility of less intrusive force, of ficers need not employ
the least intrusive means available[,] so long as they act within a range of
reasonable conduct.” ( Estate of Lopez v . Gelhaus (9th Cir . 2017) 871 F .3d 998,
• “Although of ficers are not required to use the least intrusive degree of force
available, ‘the availability of alternative methods of capturing or subduing a
suspect may be a factor to consider .’ ” ( V os, supra, 892 F .3d at p. 1033, internal
citation omitted.)
• “Courts ‘also consider , under the totality of the circumstances, the quantum of
force used to arrest the plaintif f, the availability of alternative methods of
capturing or detaining the suspect, and the plaintif f’ s mental and emotional
state.’ ” ( Br ooks v . Clark County (9th Cir . 2016) 828 F .3d 910, 920.)
• “Because the reasonableness standard ‘nearly always requires a jury to sift
through disputed factual contentions, and to draw inferences therefrom, we have
held on many occasions that summary judgment or judgment as a matter of law
in excessive force cases should be granted sparingly .’ ” ( T orr es v . City of Madera
(9th Cir . 2011) 648 F .3d 11 19, 1125.)
• “Justice Stevens incorrectly declares [the ‘objective reasonableness’ standard
under Graham ] to be ‘a question of fact best reserved for a jury ,’ and complains
we are ‘usurp[ing] the jury’ s factfinding function.’ At the summary judgment
stage, however , once we have determined the relevant set of facts and drawn all
inferences in favor of the nonmoving party to the extent supportable by the
r ecor d , the reasonableness of [defendant]’ s actions - or, in Justice Stevens’
parlance, ‘[w]hether [respondent’ s] actions have risen to a level warranting
deadly force,’ is a pure question of law .” ( Scott, supra, 550 U.S. at p. 381, fn. 8,
original italics, internal citations omitted.)
• “Because there are no genuine issues of material fact and ‘the relevant set of
facts’ has been determined, the reasonableness of the use of force is ‘a pure
question of law .’ ” ( Lowry v . City of San Diego (9th Cir . 2017) 858 F .3d 1248,
1256 (en banc).)
• “In assessing the objective reasonableness of a particular use of force, we
CACI No. 3020 CIVIL RIGHTS
consider: (1) ‘the severity of the intrusion on the individual’ s Fourth Amendment
rights by evaluating the type and amount of force inflicted,’ (2) ‘the
government’ s interest in the use of force,’ and (3) the balance between ‘the
gravity of the intrusion on the individual’ and ‘the government’ s need for that
intrusion.’ ” ( Lowry , supra, 858 F .3d at p. 1256.)
• “T o be sure, the reasonableness inquiry in the context of excessive force
balances ‘intrusion[s] on the individual’ s Fourth Amendment interests’ against
the government’ s interests. But in weighing the evidence in favor of the of f icers,
rather than the [plaintif fs], the district court unfairly tipped the reasonableness
inquiry in the of f icers’ favor .” ( Sandoval v . Las V egas Metr o. Police Dep’ t (9th
Cir . 2014) 756 F .3d 1 154, 1 167, internal citation omitted.)
• “The district court found that [plaintif f] stated a claim for excessive use of force,
but that governmental interests in of ficer safety , investigating a possible crime,
and controlling an interaction with a potential domestic abuser outweighed the
intrusion upon [plaintif f]’ s rights. In reaching this conclusion, the court
improperly ‘weigh[ed] conflicting evidence with respect to . . . disputed material
fact[s].’ ” ( Bonivert v . City of Clarkston (9th Cir . 2018) 883 F .3d 865, 880.)
• “The Fourth Amendment’ s ‘reasonableness’ standard is not the same as the
standard of ‘reasonable care’ under tort law , and negligent acts do not incur
constitutional liability .” ( Hayes v . County of San Diego 57 Cal.4th 622, 639 [160
Cal.Rptr .3d 684, 305 P .3d 252].)
• “[S]tate negligence law , which considers the totality of the circumstances
surrounding any use of deadly force, is broader than federal Fourth Amendment
law , which tends to focus more narrowly on the moment when deadly force is
used.” ( Hayes, supra, 57 Cal.4th at p. 639, internal citations omitted.)
• “While a Fourth Amendment violation cannot be established ‘based merely on
bad tactics that result in a deadly confrontation that could have been avoided,’
the events leading up to the shooting, including the of ficers tactics, are
encompassed in the facts and circumstances for the reasonableness analysis.”
( V os, supra, 892 F .3d at p. 1034, internal citations omitted.)
• “W e are cognizant of the Supreme Court’ s command to evaluate an of ficer ’ s
actions ‘from the perspective of a reasonable of ficer on the scene, rather than
with the 20/20 vision of hindsight.’ W e also recognize the reality that ‘police
of ficers are often forced to make split-second judgments - in circumstances that
are tense, uncertain, and rapidly evolving - about the amount of force that is
necessary in a particular situation.’ This does not mean, however , that a Fourth
Amendment violation will be found only in those rare instances where an of ficer
and his attorney are unable to find a suf ficient number of compelling adjectives
to describe the victim’ s conduct. Nor does it mean that we can base our analysis
on what of ficers actually felt or believed during an incident. Rather , we must ask
if the of ficers’ conduct is ‘ “objectively reasonable” in light of the facts and
circumstances confronting them’ without regard for an of f icer ’ s subjective
intentions.” ( Bryan v . MacPherson (9th Cir . 2010) 630 F .3d 805, 831, internal
citations omitted.)
CIVIL RIGHTS CACI No. 3020
• “The following considerations may bear on the reasonableness (or
unreasonableness) of the force used: ‘the relationship between the need for the
use of force and the amount of force used; the extent of the plaintif f’ s injury;
any ef fort made by the of f icer to temper or to limit the amount of force; the
severity of the security problem at issue; the threat reasonably perceived by the
of ficer; and whether the plainti ff was actively resisting.’ The most important
factor is whether the suspect posed an immediate threat. This analysis is not
static, and the reasonableness of force may change as the circumstances evolve.”
( Hyde v . City of W illcox (9th Cir . 2022) 23 F .4th 863, 870, internal citations
• “Deadly force is permissible only ‘if the suspect threatens the of ficer with a
weapon or there is probable cause to believe that he has committed a crime
involving the infliction or threatened infliction of serious physical harm.’ ” ( A. K.
H. v . City of T ustin (9th Cir . 2016) 837 F .3d 1005, 101 1.)
• “[A]n of ficer may not use deadly force to apprehend a suspect where the suspect
poses no immediate threat to the of ficer or others. On the other hand, it is not
constitutionally unreasonable to prevent escape using deadly force ‘[w]here the
of ficer has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the of ficer or to others.’ ” ( W ilkinson v . T orr es (9th Cir .
2010) 610 F .3d 546, 550, internal citations omitted.)
• “It is clearly established law that shooting a fleeing suspect in the back violates
the suspect’ s Fourth Amendment rights. ‘Where the suspect poses no immediate
threat to the of ficer and no threat to others, the harm resulting from failing to
apprehend him does not justify the use of deadly force to do so. . . . A police
of ficer may not seize an unarmed, nondangerous suspect by shooting him
dead.’ ” ( Foster v . City of Indio (9th Cir . 2018) 908 F .3d 1204, 121 1.)
• “ ‘[I]f police of ficers are justified in firing at a suspect in order to end a severe
threat to public safety , the of f icers need not stop shooting until the threat has
ended.’ But terminating a threat doesn’t necessarily mean terminating the
suspect. If the suspect is on the ground and appears wounded, he may no longer
pose a threat; a reasonable of ficer would reassess the situation rather than
continue shooting.” ( Zion v . County of Orange (9th Cir . 2017) 874 F .3d 1072,
1076, internal citation omitted.)
• “Resistance, or the reasonable perception of resistance, does not entitle police
of ficers to use any amount of force to restrain a suspect. Rather , police of ficers
who confront actual (or perceived) resistance are only permitted to use an
amount of force that is reasonable to overcome that resistance.” ( Barnar d v .
Theobald (9th Cir . 2013) 721 F .3d 1069, 1076, internal citations omitted.)
• “[T]he fact that the ‘suspect was armed with a deadly weapon’ does not render
the of ficers’ response per se reasonable under the Fourth Amendment. [¶] This is
not to say that the Fourth Amendment always requires of ficers to delay their fire
until a suspect turns his weapon on them. If the person is armed - or reasonably
suspected of being armed - a furtive movement, harrowing gesture, or serious
CACI No. 3020 CIVIL RIGHTS
verbal threat might create an immediate threat.” ( Geor ge v . Morris (9th Cir .
2013) 724 F .3d 1191, 1200, original italics, internal citations omitted.)
• “T wo cases published about three years before the April 2016 incident, Hayes v .
County of San Diego and Geor ge v . Morris , made ‘clear to a reasonable of ficer ’
that a police of ficer may not use deadly force against a non-threatening
individual, even if the individual is armed, and even if the situation is volatile.”
( Estate of Aguirr e v . County of Riverside (9th Cir . 2022) 29 F .4th 624, 629.)
• “ ‘[A] simple statement by an of ficer that he fears for his safety or the safety of
others is not enough; there must be objective factors to justify such a concern.’
Here, whether objective factors supported [defendant]’ s supposed subjective fear
is not a question that can be answered as a matter of law based upon the limited
evidence in the record, especially given that on summary judgment that evidence
must be construed in the light most favorable to [plaintif f], the non-moving
party . Rather , whether [defendant]’ s claim that he feared a broccoli-based assault
is credible and reasonable presents a genuine question of material fact that must
be resolved not by a court ruling on a motion for summary judgment but by a
jury in its capacity as the trier of fact.” ( Y oung v . County of Los Angeles (9th
Cir . 2011) 655 F .3d 1156, 1 163-1164.)
• “An of ficer ’ s evil intentions will not make a Fourth Amendment violation out of
an objectively reasonable use of force; nor will an of ficer ’ s good intentions make
an objectively unreasonable use of force constitutional.” ( Fetters v . County of
Los Angeles (2016) 243 Cal.App.4th 825, 838 [196 Cal.Rptr .3d 848].)
• “Where . . . ‘an of ficer ’ s particular use of force is based on a mistake of fact,
we ask whether a reasonable of ficer would have or should have accurately
perceived that fact.’ ‘[W]hether the mistake was an honest one is not the
concern, only whether it was a r easonable one.’ ” ( Nehad v . Br owder (9th Cir .
2019) 929 F .3d 1125, 1 133, original italics, internal citation and footnote
• “Although Graham does not specifically identify as a relevant factor whether the
suspect poses a threat to himself , we assume that the of ficers could have used
some reasonable level of force to try to prevent [decedent] from taking a suicidal
act. But we are aware of no published cases holding it reasonable to use a
significant amount of force to try to stop someone from attempting suicide.
Indeed, it would be odd to permit of ficers to use force capable of causing serious
injury or death in an ef fort to prevent the possibility that an individual might
attempt to harm only himself. W e do not rule out that in some circumstances
some force might be warranted to prevent suicide, but in cases like this one the
‘solution’ could be worse than the problem.” ( Glenn, supra, 673 F .3d at p. 872.)
• “This Court has ‘refused to create two tracks of excessive force analysis, one for
the mentally ill and one for serious criminals.’ The Court has, however , ‘found
that even when an emotionally disturbed individual is acting out and inviting
of ficers to use deadly force to subdue him, the governmental interest in using
such force is diminished by the fact that the of ficers are confronted . . . with a
CIVIL RIGHTS CACI No. 3020
mentally ill individual.’ A reasonable jury could conclude, based upon the
information available to [defendant of ficer] at the time, that there were su ff icient
indications of mental illness to diminish the governmental interest in using
deadly force.” ( Hughes v . Kisela (9th Cir . 2016) 841 F .3d 1081, 1086.)
• “Whether an of ficer warned a suspect that failure to comply with the o ff icer ’ s
commands would result in the use of force is another relevant factor in an
excessive force analysis.” ( Nehad, supra, 929 F .3d at p. 1137.)
• “By contrast, if the of ficer warned the o ffender that he would employ force, but
the suspect refused to comply , the government has an increased interest in the
use of force.” ( Mar quez v . City of Phoenix (9th Cir . 2012) 693 F .3d 1 167, 1 175,
internal citation omitted.)
• “[P]reshooting conduct is included in the totality of circumstances surrounding
an of ficer ’ s use of deadly force, and therefore the of f icer ’ s duty to act reasonably
when using deadly force extends to preshooting conduct. But in a case like this
one, where the preshooting conduct did not cause the plaintif f any injury
independent of the injury resulting from the shooting, the reasonableness of the
of ficers’ preshooting conduct should not be considered in isolation. Rather , it
should be considered in relation to the question whether the of ficers’ ultimate use
of deadly force was reasonable.” ( Hayes, supra, 57 Cal.4th at p. 632, internal
citation omitted.)
• “Sometimes, however , of ficers themselves may ‘unnecessarily creat[e] [their]
own sense of urgency .’ Reasonable triers of fact can, taking the totality of the
circumstances into account, conclude that an of ficer ’ s poor judgment or lack of
preparedness caused him or her to act unreasonably , ‘with undue haste.’ ”
( Nehad, supra, 929 F .3d at p. 1135, internal citation and footnote omitted.)
• “A person is seized by the police and thus entitled to challenge the government’ s
action under the Fourth Amendment when the of ficer by means of physical force
or show of authority terminates or restrains his freedom of movement through
means intentionally applied.” ( Nelson v . City of Davis (9th Cir . 2012) 685 F .3d
• “The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean
‘under “pretense” of law .’ A police of ficer’ s actions are under pretense of law
only if they are ‘in some way “related to the performance of his of ficial
duties.” ’ By contrast, an of f icer who is ‘ “pursuing his own goals and is not in
any way subject to control by [his public employer],” ’ does not act under color
of law , unless he ‘purports or pretends’ to do so. Of f icers who engage in
confrontations for personal reasons unrelated to law enforcement, and do not
‘purport[] or pretend[]’ to be of f icers, do not act under color of law .” ( Huffman v .
County of Los Angeles (9th Cir . 1998) 147 F .3d 1054, 1058, internal citations
• “W e hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintif f
CACI No. 3020 CIVIL RIGHTS
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order , declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’ s issuance of
a writ of habeas corpus. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not cognizable under
§ 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the plaintif f would
necessarily imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintif f can demonstrate that the
conviction or sentence has already been invalidated. But if the district court
determines that the plaintif f’ s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintif f, the action
should be allowed to proceed, in the absence of some other bar to the suit.”
( Heck v . Humphrey (1994) 512 U.S. 477, 486-487 [1 14 S.Ct. 2364, 129 L.Ed.2d
383], footnotes and internal citation omitted.)
• “ Heck requires the reviewing court to answer three questions: (1) W as there an
underlying conviction or sentence relating to the section 1983 claim? (2) W ould
a ‘judgment in favor of the plaintif f [in the section 1983 action] “necessarily
imply” . . . the invalidity of the prior conviction or sentence?’ (3) ‘If so, was
the prior conviction or sentence already invalidated or otherwise favorably
terminated?’ ” ( Fetters, supra , 243 Cal.App.4th at p. 834.)
• “The Heck inquiry does not require a court to consider whether the section 1983
claim would establish beyond all doubt the invalidity of the criminal outcome;
rather , a court need only ‘consider whether a judgment in favor of the plaintif f
would necessarily imply the invalidity of his conviction or sentence.’ ” ( Fetters,
supra , 243 Cal.App.4th at p. 841, original italics.)
• “[A] dismissal under section 1203.4 does not invalidate a conviction for
purposes of removing the Heck bar preventing a plaintif f from bringing a civil
action.” ( Baranchik v . Fizulich (2017) 10 Cal.App.5th 1210, 1224 [217
Cal.Rptr .3d 423].)
• “[Plaintif f]’ s section 1983 claim is barred to the extent it alleges that [the
arresting of ficer] lacked justification to arrest him or to respond with reasonable
force to his resistance. The use of deadly force in this situation, though, requires
a separate analysis. ‘For example, a defendant might resist a lawful arrest, to
which the arresting of ficers might respond with excessive force to subdue him.
The subsequent use of excessive force would not negate the lawfulness of the
initial arrest attempt, or negate the unlawfulness of the criminal defendant’ s
attempt to resist it. Though occurring in one continuous chain of events, two
isolated factual contexts would exist, the first giving rise to criminal liability on
the part of the criminal defendant, and the second giving rise to civil liability on
the part of the arresting of ficer .’ ” ( Y ount v . City of Sacramento (2008) 43 Cal.4th
885, 899 [76 Cal.Rptr .3d 787, 183 P .3d 471], original italics.)
• “Plaintif fs contend that the use of force is unlawful because the arrest itself is
unlawful. But that is not so. W e have expressly held that claims for false arrest
CIVIL RIGHTS CACI No. 3020
and excessive force are analytically distinct.” ( Sharp v . County of Orange (9th
Cir . 2017) 871 F .3d 901, 916.)
• “[T]he district court ef fectively required the jury to presume that the arrest was
constitutionally lawful, and so not to consider facts concerning the basis for the
arrest. Doing so removed critical factual questions that were within the jury’ s
province to decide. For instance, by taking from the jury the question whether
[of ficer]’ s arrest of [plaintif f] for resisting or obstructing a police of f icer was
lawful, the district judge implied simultaneously that [plaintif f] was in fact
resisting or failing to obey the police of ficer ’ s lawful instructions. Presuming
such resistance could certainly have influenced the jury’ s assessment of ‘the need
for force,’ as well as its consideration of the other Graham factors, including
‘whether [the suspect] is actively resisting arrest or attempting to evade arrest by
flight. By erroneously granting judgment as a matter of law on [plaintif f]’ s
unlawful arrest claim, the district court impermissibly truncated the jury’ s
consideration of [plaintif f]’ s excessive force claim.” ( V elazquez v . City of Long
Beach (9th Cir . 2015) 793 F .3d 1010, 1027, original italics.)
Secondary Sources
8 W itkin, Summary of California Law (1 1th ed. 2017) Constitutional Law , § 902
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State
Law - Law Enfor cement and Pr osecution , ¶¶ 10.00-10.03 (Matthew Bender)
1 1 California Forms of Pleading and Practice, Ch. 1 13, Civil Rights: The Post-Civil
W ar Civil Rights Statutes , § 113.14 (Matthew Bender)
CACI No. 3020 CIVIL RIGHTS
Page last reviewed May 2024
Cornell Law professor Michael C. Dorf discusses the adoption of “expressive activity policies” by colleges and universities in response to recent campus protests, examining the legal and practical implications of such policies.
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