CACI 1305B Battery by Peace Officer (Deadly Force)—Essential Factual Elements
California Civil Jury Instructions CACI
1305B Battery by Peace Officer (Deadly Force)—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] unnecessarily used deadly force on [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] intentionally touched [name of plaintiff/decedent] [or caused [name of plaintiff/decedent] to be touched];
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 [insert one or both of the following:]
[to defend against an imminent threat of death or serious bodily harm to [name of defendant] [or] [to 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.If practical under the circumstances, [name of defendant] made reasonable efforts to identify [himself/herself/nonbinary pronoun] as a peace officer and to warn that deadly force would 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 a person based only on the danger that person poses to [himself/herself/nonbinary pronoun], 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.]
[A person being [arrested/detained] has a duty not to use force to resist the peace officer unless the peace officer is using unreasonable force.]
“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.
A threat of death or serious bodily injury is “imminent” when, 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 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 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 do so. [You must also consider whether [name of defendant] knew or had reason to know that the person against whom [he/she/nonbinary pronoun] used force was suffering from a physical, mental health, developmental, or intellectual disability [that may have affected the person’s ability to understand or comply with commands from the officer[s]].]
[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 use of objectively reasonable force to effect the arrest or to prevent escape or to overcome resistance. A peace officer does, however, have a duty to use reasonable tactical repositioning or other deescalation tactics.]
Directions for Use
Use this instruction for a claim of battery using deadly force by a peace officer. If a plaintiff alleges battery by both deadly and nondeadly force, or if the jury must decide whether the amount of force used was deadly or nondeadly, this instruction may be used along with the CACI No. 1305A, Battery by Law Enforcement Officer (Nondeadly Force)—Essential Factual Elements.
By its terms, Penal Code section 835a’s deadly force provisions apply to “peace officers,” a term defined by the Penal Code. (See Pen. Code, § 835a; see also Pen. Code, § 830 et seq. [defining “peace officer”].) That the defendant is a peace officer 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 there are contested issues of fact on this issue, include the specific factual findings necessary for the jury to determine whether the defendant was acting as a peace officer.
In the paragraph after the essential factual elements, select either or both bracketed options depending on the asserted justification(s) for the use of deadly force.
“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).) 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.
In the “totality of the circumstances” paragraph, do not include the final optional sentence or its optional clause unless there is evidence of a disability or evidence of the person’s ability to comprehend or comply with the officer’s commands.
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 re 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.
•“[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.)