CACI 3020 Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements (42 U.S.C. § 1983)

New September 2003; Revised June 2012; Renumbered from CACI No. 3001 December 2012; Revised June 2015, June 2016, May 2020, November 2020

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The Fourth Amendment’s “objective reasonableness” standard applies to all claims of excessive force against law enforcement officers 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 “official 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. Wash. 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 officers 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, Violation 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, § 835a.)

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 Force by Law Enforcement Officer in Arrest or Other Seizure—Essential Factual Elements, and CACI No. 441, Negligent Use of Deadly Force by Peace Officer—Essential Factual Elements. For an instruction for use alleging excessive force as a battery, see CACI No. 1305, Battery by Peace Officer—Essential Factual Elements.

•“In addressing an excessive force claim brought under § 1983, analysis begins 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 officers 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 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.” ’ ” (Vos 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 officer 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 officers 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.)

•“The most important of these [factors from Graham, above] is whether the suspect posed an immediate threat to the officers or others, as measured objectively under the circumstances.” (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 712 [141 Cal.Rptr.3d 553].)

•“[The Graham] factors, however, are not exclusive. We ‘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 officers that the person they used force against was emotionally disturbed.” (Glenn, supra, 673 F.3d at p. 872, internal citations omitted.)

•“With respect to the possibility of less intrusive force, officers 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, 1006.)

•“Although officers 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.’ ” (Vos, 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 plaintiff, the availability of alternative methods of capturing or detaining the suspect, and the plaintiff’s mental and emotional state.’ ” (Brooks 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.’ ” (Torres v. City of Madera (9th Cir. 2011) 648 F.3d 1119, 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 record, 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 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.)

•“To 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 officers, rather than the [plaintiffs], the district court unfairly tipped the reasonableness inquiry in the officers’ favor.” (Sandoval v. Las Vegas Metro. Police Dep’t (9th Cir. 2014) 756 F.3d 1154, 1167, internal citation omitted.)

•“The district court found that [plaintiff] stated a claim for excessive use of force, but that governmental interests in officer safety, investigating a possible crime, and controlling an interaction with a potential domestic abuser outweighed the intrusion upon [plaintiff]’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 officers tactics, are encompassed in the facts and circumstances for the reasonableness analysis.” (Vos, supra, 892 F.3d at p. 1034, internal citations omitted.)

•“We are cognizant of the Supreme Court’s command to evaluate an officer’s actions ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ We also recognize the reality that ‘police officers 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 officer and his attorney are unable to find a sufficient number of compelling adjectives to describe the victim’s conduct. Nor does it mean that we can base our analysis on what officers actually felt or believed during an incident. Rather, we must ask if the officers’ conduct is ‘ “objectively reasonable” in light of the facts and circumstances confronting them’ without regard for an officer’s subjective intentions.” (Bryan v. MacPherson (9th Cir. 2010) 630 F.3d 805, 831, internal citations omitted.)

•“Deadly force is permissible only ‘if the suspect threatens the officer 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 Tustin (9th Cir. 2016) 837 F.3d 1005, 1011.)

•“[A]n officer may not use deadly force to apprehend a suspect where the suspect poses no immediate threat to the officer or others. On the other hand, it is not constitutionally unreasonable to prevent escape using deadly force ‘[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.’ ” (Wilkinson v. Torres (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 officer 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 officer may not seize an unarmed, nondangerous suspect by shooting him dead.’ ” (Foster v. City of Indio (9th Cir. 2018) 908 F.3d 1204, 1211.)

•“ ‘[I]f police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers 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 officer 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 officers to use any amount of force to restrain a suspect. Rather, police officers who confront actual (or perceived) resistance are only permitted to use an amount of force that is reasonable to overcome that resistance.” (Barnard 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 officers’ response per se reasonable under the Fourth Amendment. [¶] This is not to say that the Fourth Amendment always requires officers 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 verbal threat might create an immediate threat.” (George v. Morris (9th Cir. 2013) 724 F.3d 1191, 1200, original italics, internal citations omitted.)

•“ ‘[A] simple statement by an officer 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 [plaintiff], 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.” (Young v. County of Los Angeles (9th Cir. 2011) 655 F.3d 1156, 1163–1164.)

•“An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’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 officer’s particular use of force is based on a mistake of fact, we ask whether a reasonable officer 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 reasonable one.’ ” (Nehad v. Browder (9th Cir. 2019) 929 F.3d 1125, 1133, original italics, internal citation and footnote omitted.)

•“Although Graham does not specifically identify as a relevant factor whether the suspect poses a threat to himself, we assume that the officers 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 officers to use force capable of causing serious injury or death in an effort to prevent the possibility that an individual might attempt to harm only himself. We 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 officers to use deadly force to subdue him, the governmental interest in using such force is diminished by the fact that the officers are confronted … with a mentally ill individual.’ A reasonable jury could conclude, based upon the information available to [defendant officer] at the time, that there were sufficient 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 officer warned a suspect that failure to comply with the officer’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 officer warned the offender that he would employ force, but the suspect refused to comply, the government has an increased interest in the use of force.” (Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, 1175, internal citation omitted.)

•“[P]reshooting conduct is included in the totality of circumstances surrounding an officer’s use of deadly force, and therefore the officer’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 plaintiff any injury independent of the injury resulting from the shooting, the reasonableness of the officers’ preshooting conduct should not be considered in isolation. Rather, it should be considered in relation to the question whether the officers’ ultimate use of deadly force was reasonable.” (Hayes, supra, 57 Cal.4th at p. 632, internal citation omitted.)

•“Sometimes, however, officers 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 officer’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 officer 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 867, 875.)

•“The Supreme Court has interpreted the phrase ‘under “color” of law’ to mean ‘under “pretense” of law.’ A police officer’s actions are under pretense of law only if they are ‘in some way “related to the performance of his official duties.” ’ By contrast, an officer 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. Officers who engage in confrontations for personal reasons unrelated to law enforcement, and do not ‘purport[] or pretend[]’ to be officers, do not act under color of law.” (Huffman v. County of Los Angeles (9th Cir. 1998) 147 F.3d 1054, 1058, internal citations omitted.)

•“We 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 plaintiff 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 plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, 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 [114 S.Ct. 2364, 129 L.Ed.2d 383], footnotes and internal citation omitted.)

•“Heck requires the reviewing court to answer three questions: (1) Was there an underlying conviction or sentence relating to the section 1983 claim? (2) Would a ‘judgment in favor of the plaintiff [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 plaintiff 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 plaintiff from bringing a civil action.” (Baranchik v. Fizulich (2017) 10 Cal.App.5th 1210, 1224 [217 Cal.Rptr.3d 423].)

•“[Plaintiff]’s section 1983 claim is barred to the extent it alleges that [the arresting officer] 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 officers 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 officer.’ ” (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 899 [76 Cal.Rptr.3d 787, 183 P.3d 471], original italics.)

•“Plaintiffs contend that the use of force is unlawful because the arrest itself is unlawful. But that is not so. We have expressly held that claims for false arrest and excessive force are analytically distinct.” (Sharp v. County of Orange (9th Cir. 2017) 871 F.3d 901, 916.)

•“[T]he district court effectively 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 [officer]’s arrest of [plaintiff] for resisting or obstructing a police officer was lawful, the district judge implied simultaneously that [plaintiff] was in fact resisting or failing to obey the police officer’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 [plaintiff]’s unlawful arrest claim, the district court impermissibly truncated the jury’s consideration of [plaintiff]’s excessive force claim.” (Velazquez v. City of Long Beach (9th Cir. 2015) 793 F.3d 1010, 1027, original italics.)