CACI 3055 Rebuttal of Retaliatory Motive
California Civil Jury Instructions CACI
3055 Rebuttal of Retaliatory Motive
[Name of defendant] claims that [he/she/nonbinary pronoun/it] [specify alleged retaliatory conduct, e.g., arrested plaintiff] because [specify nonretaliatory reason for the adverse action].
If [name of plaintiff] proves that retaliation was a substantial or motivating factor for [name of defendant]’s [specify alleged retaliatory conduct], you must then consider if [name of defendant] would have taken the same action even in the absence of [name of plaintiff]’s constitutionally protected activity.
To succeed on this defense, [name of defendant] must prove that [he/she/nonbinary pronoun/it] would have [specify alleged retaliatory conduct, e.g., arrested plaintiff] on the basis of [specify the defendant’s stated nonretaliatory reason for the adverse action], regardless of retaliation for [name of plaintiff]’s [specify constitutionally protected activity].
Directions for Use
This instruction sets forth a defendant’s response to a plaintiff’s claim of retaliation. See CACI No. 3050, Retaliation—Essential Factual Elements. The defendant bears the burden of proving the nonretaliatory reason for the allegedly retaliatory conduct. (See Nieves v. Bartlett (2019) ___ U.S. ___ [139 S.Ct. 1715, 1725, 204 L.Ed.2d 1].
In retaliatory arrest and prosecution cases, use this instruction only if the court has determined the absence of probable cause or that an exception to the no-probable-cause requirement applies because the plaintiff presented objective evidence that otherwise similarly situated individuals not engaged in the same sort of constitutionally protected activity were not arrested or prosecuted. (See Nieves, supra, 139 S.Ct. at p. 1727 [stating exception to no-probable-cause requirement when otherwise similarly situated individuals were not arrested for the same conduct].)
Sources and Authority
•“[I]f the plaintiff establishes the absence of probable cause, ‘then the Mt. Healthy test governs: The plaintiff must show that the retaliation was a substantial or motivating factor behind the [arrest], and, if that showing is made, the defendant can prevail only by showing that the [arrest] would have been initiated without respect to retaliation.’ ” (Nieves, supra, 139 S.Ct. at p. 1725.)
Secondary Sources
4 Witkin & Epstein, California Criminal Law (4th ed. 2020) Pretrial, § 367
5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 511
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 894–895
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Opportunity Laws, § 40.26 (Matthew Bender)
3 Civil Rights Actions, Ch. 10, Deprivation of Rights Under Color of State Law—Law Enforcement and Prosecution, ¶ 10.15 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil War Civil Rights Statutes, § 113.14 (Matthew Bender)