CACI 1402 False Arrest Without Warrant—Affirmative Defense—Peace Officer—Probable Cause to Arrest
California Civil Jury Instructions CACI
1402 False Arrest Without Warrant—Affirmative Defense—Peace Officer—Probable Cause to Arrest
[Name of defendant] claims the arrest was not wrongful because [he/she/nonbinary pronoun] had the authority to arrest [name of plaintiff] without a warrant.
[If [name of defendant] proves that [insert facts that, if proved, would constitute reasonable cause to believe that plaintiff had committed a crime in defendant’s presence], then [name of defendant] had the authority to arrest [name of plaintiff] without a warrant.]
[If [name of defendant] proves that [insert facts that, if proved, would establish that defendant had reasonable cause to believe that plaintiff had committed a felony, whether or not a felony had actually been committed], then [name of defendant] had the authority to arrest [name of plaintiff] without a warrant.]
Directions for Use
In the brackets, the judge must insert the fact or facts that are actually controverted and that may be necessary to arrive at the probable cause determination. There may be one or more facts or combinations of facts that are necessary to make this determination, in which case they can be phrased in the alternative.
If a criminal act is alleged as justification, it may be necessary to instruct whether the crime is a felony, misdemeanor, or public offense.
Penal Code section 836 provides, in part, that a warrantless arrest may be made if a person has committed a felony, although not in the officer’s presence. While the requirement of probable cause is not explicitly stated, it would seem that the officer must always have probable cause at the time of the arrest and that subsequent conviction of a felony does not sanitize an improper arrest.
If the first bracketed paragraph is used, the judge should include “in the officer’s presence” as part of the facts that the jury needs to find if there is a factual dispute on this point.
Sources and Authority
•Arrest Without a Warrant. Penal Code section 836(a).
•Felonies and Misdemeanors. Penal Code section 17(a).
•“Peace Officers” Defined. Penal Code section 830 et seq.
•“An officer is not liable for false imprisonment for the arrest without a warrant of a person whom he has reasonable grounds to believe is guilty of a crime.” (Allen v. McCoy (1933) 135 Cal.App. 500, 507–508 [27 P.2d 423].)
•“It has long been the law that a cause of action for false imprisonment is stated where it is alleged that there was an arrest without process, followed by imprisonment and damages. Upon proof of those facts the burden is on the defendant to prove justification for the arrest. Considerations of both a practical and policy nature underlie this rule. The existence of justification is a matter which ordinarily lies peculiarly within the knowledge of the defendant. The plaintiff would encounter almost insurmountable practical problems in attempting to prove the negative proposition of the nonexistence of any justification. This rule also serves to assure that official intermeddling is justified, for it is a serious matter to accuse someone of committing a crime and to arrest him without the protection of the warrant process.” (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 592 [156 Cal.Rptr. 198, 595 P.2d 975], footnote and internal citations omitted.)
•“We look to whether facts known to the arresting officer ‘at the moment the arrest was made’ ‘ “would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime.” ’ ” (Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 779 [225 Cal.Rptr.3d 356], internal citations omitted.)
•“If the facts that gave rise to the arrest are undisputed, the issue of probable cause is a question of law for the trial court. When, however, the facts that gave rise to the arrest are controverted, the trial court must instruct the jury as to what facts, if established, would constitute probable cause. ‘The trier of fact’s function in false arrest cases is to resolve conflicts in the evidence. Accordingly, where the evidence is conflicting with respect to probable cause, “ ‘it [is] the duty of the court to instruct the jury as to what facts, if established, would constitute probable cause.’ ” … The jury then decides whether the evidence supports the necessary factual findings.’ ” (Levin v. United Air Lines, Inc. (2008) 158 Cal.App.4th 1002, 1018–1019 [70 Cal.Rptr.3d 535], internal citations omitted.)
•“The legal standard we apply to assess probable cause is an objective one in which the subjective motivations of the arresting officers have no role. But it is an overstatement to say that what is in the mind of an arresting officer is wholly irrelevant, for the objective test of reasonableness is simply a measure by which we assess whether the circumstances as subjectively perceived by the officer provide a reasonable basis for the seizure.” (Cornell, supra, 17 Cal.App.5th at p. 779, internal citations omitted.)
•“ ‘Presence’ is not mere physical proximity but is determined by whether the offense is apparent to the officer’s senses.” (People v. Sjosten (1968) 262 Cal.App.2d 539, 543–544 [68 Cal.Rptr. 832], internal citations omitted.)