CACI 3066 Bane Act—Essential Factual Elements (Civ. Code, § 52.1)

California Civil Jury Instructions CACI

3066 Bane Act—Essential Factual Elements (Civ. Code, § 52.1)

[Name of plaintiff] claims that [name of defendant] intentionally interfered with [or attempted to interfere with] [his/her/nonbinary pronoun] civil rights by threats, intimidation, or coercion. To establish this claim, [name of plaintiff] must prove all of the following:

1.[That by threats, intimidation or coercion, [name of defendant] caused [name of plaintiff] to reasonably believe that if [he/she/nonbinary pronoun] exercised [his/her/nonbinary pronoun] right [insert right, e.g., “to vote”], [name of defendant] would commit violence against [[him/her/nonbinary pronoun]/ [or] [his/her/nonbinary pronoun] property] and that [name of defendant] had the apparent ability to carry out the threats;]


[That [name of defendant] acted violently against [[name of plaintiff]/ [and] [name of plaintiff]’s property] [to prevent [him/her/nonbinary pronoun] from exercising [his/her/nonbinary pronoun] right [e.g., to vote]/to retaliate against [name of plaintiff] for having exercised [his/her/nonbinary pronoun] right [e.g., to vote]];]

[2.That [name of defendant] intended to deprive [name of plaintiff] of [his/her/nonbinary pronoun] enjoyment of the interests protected by the right [e.g., to vote];]

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

4.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003; Renumbered from CACI No. 3025 and Revised December 2012, November 2018

Crowdsource Lawyers

Directions for Use

Select the first option for element 1 if the defendant’s conduct involved threats of violence. (See Civ. Code, § 52.1(k).) Select the second option if the conduct involved actual violence.

The Bane Act provides that speech alone is not sufficient to constitute a violation unless it involves a credible threat of violence. (Civ. Code, § 52.1(k).) This limitation would appear to foreclose a claim based on threats, intimidation, or coercion involving a nonviolent consequence. (See Cabesuela v. Browning-Ferris Industries (1998) 68 Cal.App.4th 101, 111 [80 Cal.Rptr.2d 60] [to state a cause of action under Bane Act there must first be violence or intimidation by threat of violence].) For example, it would not be a violation to threaten to report someone to immigration if the person exercises a right granted under labor law. No case has been found, however, that applies the speech limitation to foreclose such a claim, and several courts have suggested that this point is not fully settled. (See Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 959 [137 Cal.Rptr.3d 839] [we “need not decide that every plaintiff must allege violence or threats of violence in order to maintain an action under section 52.1”]; City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 408 [39 Cal.Rptr.3d 1] [also noting issue but finding it unnecessary to address].) To assert such a claim, modify element 1, option 1 to allege coercion based on a nonviolent threat with severe consequences.

Civil Code section 52(a) provides for damages up to three times actual damages but a minimum of $4,000 for violations of Civil Code section 51 (Unruh Act), 51.5, and 51.6. Civil Code section 52(b) provides for punitive damages for violations of Civil Code sections 51.7 (Ralph Act) and 51.9. Neither subsection of Section 52 mentions the Bane Act or Civil Code section 52.1. Nevertheless, the reference to section 52 in subsection (b) of the Bane Act would seem to indicate that damages may be recovered under both subsections (a) and (b) of section 52.

Under the Unruh Act, if only the statutory minimum damages of $4,000 is sought, it is not necessary to prove harm and causation. (See Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 33 [219 Cal.Rptr. 133, 707 P.2d 195] [Section 52 provides for minimum statutory damages for every violation of section 51, regardless of the plaintiff’s actual damages]; see also Civ. Code, § 52(h) [“actual damages” means special and general damages].) Presumably, the same rule applies under the Bane Act as the statutory minimum of section 52(a) should be recoverable Therefore, omit elements 2 and 3 unless actual damages are sought. If actual damages are sought, combine CACI No. 3067, Unruh Civil Rights Act—Damages, and CACI No. 3068, Ralph Act—Damages and Penalty, to recover damages under both subsections (a) and (b) of section 52.

It has been the rule that in a wrongful detention case, the coercion required to support a Bane Act claim must be coercion independent from that inherent in the wrongful detention itself. (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 981 [159 Cal.Rptr.3d 204].) One court, however, did not apply this rule in a wrongful arrest case. The court instead held that the “threat, intimidation or coercion” element requires a specific intent to violate protected rights. (Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 790–804 [225 Cal.Rptr.3d 356].) Element 2 expresses this requirement.

Sources and Authority

Bane Act. Civil Code section 52.1.

Remedies Under Bane Act. Civil Code section 52.

“The Bane Act permits an individual to pursue a civil action for damages where another person ‘interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.’ ‘The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threat[], intimidation or coercion”), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.’ ” (King v. State of California (2015) 242 Cal.App.4th 265, 294 [195 Cal.Rptr.3d 286], internal citation omitted.)

“[S]ection 52.1, was enacted a decade [after the Ralph Act] as part of Assembly Bill No. 63 (1987–1988 Reg. Sess.) (Assembly Bill No. 63) and is known as the Tom Bane Civil Rights Act. It was intended to supplement the Ralph Civil Rights Act as an additional legislative effort to deter violence. The stated purpose of the bill was ‘to fill in the gaps left by the Ralph Act’ by allowing an individual to seek relief to prevent the violence from occurring before it was committed and providing for the filing of criminal charges.” (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1447 [39 Cal.Rptr.3d 706], internal citation omitted.)

“The Legislature enacted section 52.1 to stem a tide of hate crimes.” (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338 [70 Cal.Rptr.2d 844, 949 P.2d 941], internal citation omitted.)

“[T]o state a cause of action under section 52.1 there must first be violence or intimidation by threat of violence. Second, the violence or threatened violence must be due to plaintiff’s membership in one of the specified classifications set forth in Civil Code section 51.7 or a group similarly protected by constitution or statute from hate crimes.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1290 [217 Cal.Rptr.3d 275].)

“The plaintiff must show ‘the defendant interfered with or attempted to interfere with the plaintiff’s legal right by threatening or committing violent acts.’ ” (Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 395 [218 Cal.Rptr.3d 38].)

“However, the statutory language does not limit its application to hate crimes. Notably, the statute does not require a plaintiff to allege the defendant acted with discriminatory animus or intent based upon the plaintiff’s membership in a protected class of persons.” (Shoyoye, supra, 203 Cal.App.4th at p. 956.)

“The phrase ‘under color of law’ indicates, without doubt, that the Legislature intended to include law enforcement officers within the scope of Section 52.1 if the requisites of the statute are otherwise met.” (Cornell, supra, 17 Cal.App.5th at p. 800.)

“Civil Code section 52.1, the Bane Act civil counterpart of [Penal Code] section 422.6, recognizes a private right of action for damages and injunctive relief for interference with civil rights.” (In re M.S. (1995) 10 Cal.4th 698, 715 [42 Cal.Rptr.2d 355, 896 P.2d 1365].)

“[T]he Bane Act requires that the challenged conduct be intentional.” (Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1125 [212 Cal.Rptr.3d 884].)

“[S]ection 52.1 does require an attempted or completed act of interference with a legal right, accompanied by a form of coercion.” (Jones, supra, 17 Cal.4th at p. 334.)

“The statutory framework of section 52.1 indicates that the Legislature meant the statute to address interference with constitutional rights involving more egregious conduct than mere negligence.” (Shoyoye, supra, 203 Cal.App.4th at p. 958.)

Section 52.1 is not a remedy to be used against private citizens for violations of rights that apply only to the state or its agents. (Jones, supra, 17 Cal.4th at p. 337 [right to be free from unreasonable search and seizure].)

“ ‘[W]here coercion is inherent in the constitutional violation alleged, … the statutory requirement of “threats, intimidation, or coercion” is not met. The statute requires a showing of coercion independent from the coercion inherent in the wrongful detention itself.’ ” (Simmons, supra, 7 Cal.App.5th at p. 1126.)

Assembly Bill 2719 (Stats. 2000, ch. 98) abrogated the holding of Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797 [35 Cal.Rptr.2d 282], which held that a plaintiff was required to be a member of a specified protected class in order to bring an action under section 52.1: “It is the intent of the Legislature in enacting this act to clarify that an action brought pursuant to Section 52.1 of the Civil Code does not require the individual whose rights are secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of California, to be a member of a protected class identified by its race, color, religion, or sex, among other things.”

“Subdivision (j) of Civil Code section 52.1 provides that speech alone is insufficient to support such an action, except upon a showing that the speech itself threatens violence against a specific person or group of persons, the person or group of persons against whom the speech is directed ‘reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence has the apparent ability to carry out the threat.’ … The presence of the express ‘reasonable fear’ element, in addition to the ‘apparent ability’ element, in Civil Code section 52.1, governing civil actions for damages, most likely reflects the Legislature’s determination [that] a defendant’s civil liability should depend on the harm actually suffered by the victim.” (In re M.S., supra, 10 Cal.4th at p. 715, internal citation omitted.)

“[Q]ualified immunity of the kind applied to actions brought under section 1983 does not apply to actions brought under Civil Code section 52.1.” (Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230, 1246 [63 Cal.Rptr.3d 741].)

“[A] wrongful detention that is ‘accompanied by the requisite threats, intimidation, or coercion’—‘coercion independent from the coercion inherent in the wrongful detention itself’ that is ‘deliberate or spiteful’—is a violation of the Bane Act.” (Bender, supra, 217 Cal.App.4th at p. 981, internal citations omitted.)

“Here, there clearly was a showing of coercion separate and apart from the coercion inherent in an unlawful arrest. [Defendant officer] wrongfully detained and arrested plaintiff, because he had no probable cause to believe plaintiff had committed any crime. But, in addition, [defendant officer] deliberately and unnecessarily beat and pepper sprayed the unresisting, already handcuffed plaintiff. That conduct was not the coercion that is inherent in a wrongful arrest.” (Bender, supra, 217 Cal.App.4th at p. 979, original italics.)

“We acknowledge that some courts have read Shoyoye as having announced ‘independen[ce] from [inherent coercion]’ as a requisite element of all Section 52.1 claims alleging search-and-seizure violations, but we think those courts misread the statute as well as the import of Venegas. By its plain terms, Section 52.1 proscribes any ‘interfere[nce] with’ or attempted ‘interfere[nce] with’ protected rights carried out ‘by threat, intimidation or coercion.’ Nothing in the text of the statute requires that the offending ‘threat, intimidation or coercion’ be ‘independent’ from the constitutional violation alleged.” (Cornell, supra, 17 Cal.App.5th at pp. 799–800.)

“[W]here, as here, an unlawful arrest is properly pleaded and proved, the egregiousness required by Section 52.1 is tested by whether the circumstances indicate the arresting officer had a specific intent to violate the arrestee’s right to freedom from unreasonable seizure, not by whether the evidence shows something beyond the coercion ‘inherent’ in the wrongful detention.” (Cornell, supra, 17 Cal.App.5th at pp. 801–802.)

“[T]his test ‘ “essentially sets forth two requirements for a finding of ‘specific intent’ … The first is a purely legal determination. Is the … right at issue clearly delineated and plainly applicable under the circumstances of the case? If the trial judge concludes that it is, then the jury must make the second, factual, determination. Did the defendant commit the act in question with the particular purpose of depriving the citizen victim of his enjoyment of the interests protected by that … right? If both requirements are met, even if the defendant did not in fact recognize the [unlawfulness] of his act, he will be adjudged as a matter of law to have acted [with the requisite specific intent]—i.e., ‘in reckless disregard of constitutional [or statutory] prohibitions or guarantees.’ ” ’ ” (Cornell, supra, 17 Cal.App.5th at p. 803.)

“Civil Code section 52.1 does not address the immunity established by section 844.6 [public entity immunity for injury to prisoners]. Nothing in Civil Code section 52.1 indicates an intent to abrogate this specific immunity provision. The immunity that it creates therefore applies to [plaintiff]’s Bane Act claim.” (Towery v. State of California (2017) 14 Cal.App.5th 226, 234 [221 Cal.Rptr.3d 692].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 989 et seq.
Cheng et al., Cal. Fair Housing and Public Accommodations § 14:5 (The Rutter Group)
California Civil Practice: Civil Rights Litigation §§ 3:1–3:15 (Thomson Reuters)
2 Wilcox, California Employment Law, Ch. 40, Overview of Equal Employment Opportunity Laws, § 40.12[2] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 117A, Civil Rights: Interference With Civil Rights by Threats, Intimidation, Coercion, or Violence, § 117A.11 (Matthew Bender)
3 California Points and Authorities, Ch. 35, Civil Rights: Unruh Civil Rights Act, §§ 35.01, 35.20 et seq. (Matthew Bender)