CACI 1305A Battery by Law Enforcement Officer (Nondeadly Force)—Essential Factual Elements

California Civil Jury Instructions CACI

1305A Battery by Law Enforcement Officer (Nondeadly Force)—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] harmed [him/her/nonbinary pronoun] by using unreasonable force to [arrest/detain [him/her/nonbinary pronoun]/ [,/or] prevent [his/her/nonbinary pronoun] escape/ [,/or] overcome [his/her/nonbinary pronoun] resistance]. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] intentionally touched [name of plaintiff] [or caused [name of plaintiff] to be touched];

2.That [name of defendant] used unreasonable force on [name of plaintiff];

3.That [name of plaintiff] did not consent to the use of that force;

4.That [name of plaintiff] was harmed; and

5.That [name of defendant]’s use of unreasonable force was a substantial factor in causing [name of plaintiff]’s harm.

[A/An] [insert type of officer] may use reasonable force to [arrest/detain/ [,/or] prevent the escape of/ [,/or] overcome the resistance of] a person when the officer has reasonable cause to believe that that person has committed a crime. [Even if the officer is mistaken, a person being arrested or detained has a duty not to use force to resist the officer unless the officer is using unreasonable force.]

In deciding whether [name of defendant] used unreasonable force, you must consider the totality of the circumstances and determine what amount of force a reasonable [insert type of officer] 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. You should consider, among other factors, 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 evade [arrest/detention].

[An officer who makes or attempts to make an arrest does not have to retreat or stop because the person being arrested resists or threatens to resist. Tactical repositioning or other deescalation tactics are not retreat. An officer does not lose the right to self-defense by using objectively reasonable force to [arrest/detain/ [,/or] prevent escape/ [,/or] overcome resistance.]

New September 2003; Revised December 2012, May 2020, November 2020; Renumbered from CACI No. 1305 and Revised May 2021

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Directions for Use

See CACI No. 1302, Consent Explained, and CACI No. 1303, Invalid Consent, if there is an issue concerning the plaintiff’s consent.

For additional authorities on excessive force, see the Sources and Authority for CACI No. 440, Negligent Use of Nondeadly Force by Law Enforcement Officer in Arrest or Other Seizure—Essential Factual Elements, CACI No. 441, Negligent Use of Deadly Force by Peace Officer—Essential Factual Elements, and CACI No. 3020, Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements.

By its terms, Penal Code section 835a’s deadly force provisions apply to “peace officers.” It would appear that a battery claim involving nondeadly force does not depend on whether the individual qualifies as a peace officer under the Penal Code. (See Pen. Code, § 835a; see also Pen. Code, § 830 et seq. [defining “peace officer”].) For cases involving the use of deadly force by a peace officer, use CACI No. 1305B, Battery by Peace Officer (Deadly Force)—Essential Factual Elements. (Pen. Code, § 835a.) This instruction and CACI No. 1305B may require modification if the jury must decide whether the force used by the defendant was deadly or nondeadly.

Include the bracketed sentence in the second paragraph only if the defendant claims that the person being arrested or detained resisted the officer.

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. Wash. County (9th Cir. 2011) 673 F.3d 864, 872); additional factors may be added if appropriate to the facts of the case.

Include the final bracketed paragraph only if the defendant claims that the person being arrested resisted arrest or threatened resistance.

Sources and Authority

Use of Objectively Reasonable Force to Arrest. Penal Code section 835a.

Duty to Submit to Arrest. Penal Code section 834a.

“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.)

“[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.)

“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 v. City of Pomona (2009) 46 Cal.4th 501, 514 [94 Cal.Rptr.3d 1, 207 P.3d 506], internal citation omitted.)

Secondary Sources

1 Witkin & Epstein, California Criminal Law (4th ed. 2020) Crimes Against the Person, §§ 13–14
4 Witkin & Epstein, California Criminal Law (4th ed. 2020) Crimes Against the Person, § 39
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 496
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.24 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, §§ 58.22, 58.61, 58.92 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 et seq. (Matthew Bender)
California Civil Practice: Torts § 12:22 (Thomson Reuters)