CACI 440 Negligent Use of Nondeadly Force by Law Enforcement Officer in Arrest or Other Seizure—Essential Factual Elements

New June 2016; Revised May 2020, November 2020, May 2021

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Use this instruction if the plaintiff makes a negligence claim under state law arising from the force used in effecting an arrest or detention. Such a claim is often combined with a claimed civil rights violation under 42 United States Code section 1983. See CACI No. 3020, Excessive Use of Force—Unreasonable Arrest or Other Seizure—Essential Factual Elements. It might also be combined with a claim for battery. See CACI No. 1305, Battery by Peace Officer—Essential Factual Elements. For additional authorities on excessive force by a law enforcement officer, see the Sources and Authority to these two CACI instructions.

By its terms, Penal Code section 835a’s deadly force provisions apply to “peace officers.” It would appear that a negligence claim involving nondeadly force does not depend on whether the individual qualifies as a peace officer under the Penal Code. (See Pen. Code, § 835a; see also Pen. Code, § 830 et seq. [defining “peace officer”].) For cases involving the use of deadly force by a peace officer, use CACI No. 441, Negligent Use of Deadly Force by Peace Officer—Essential Factual Elements. (Pen. Code, § 835a.) This instruction and CACI No. 441 may require modification if the jury must decide whether the force used by the defendant was deadly or nondeadly.

Include the last bracketed sentence in the first paragraph only if there is evidence the person being arrested or detained used force to resist the officer.

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 to be applied under California negligence law. (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 514 [94 Cal.Rptr.3d 1, 207 P.3d 506].) They are not exclusive (see Glenn v. Wash. County (9th Cir. 2011) 673 F.3d 864, 872); additional factors may be added if appropriate to the facts of the case. If negligence, civil rights, and battery claims are all involved, the instructions can be combined so as to give the Graham factors only once. A sentence may be added to advise the jury that the factors apply to multiple claims.

Factor (d) is bracketed because no reported California state court decision has held that an officer’s tactical decisions before using nondeadly force can be actionable negligence. It has been held that liability can arise if the officer’s earlier tactical conduct and decisions show, as part of the totality of circumstances, that the ultimate use of deadly force was unreasonable. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639 [160 Cal.Rptr.3d 684, 305 P.3d 252].) In this respect, California negligence law differs from the federal standard under the Fourth Amendment. (Hayes, supra, 57 Cal.4th at p. 639 [“[T]he state and federal standards are not the same, which we now confirm”]; cf. Vos v. City of Newport Beach (9th Cir. 2018) 892 F.3d 1024, 1037 [“To determine police liability [under state law negligence], a court applies tort law’s ‘reasonable care’ standard, which is distinct from the Fourth Amendment’s ‘reasonableness’ standard. The Fourth Amendment is narrower and ‘plac[es] less emphasis on preshooting conduct.’”)

Include the final bracketed paragraph only if the defendant claims that the person being arrested resisted arrest or threatened resistance.

•Legislative Findings re Use of Force by Law Enforcement. Penal Code section 835a(a).

•Use of Objectively Reasonable Force to Arrest. Penal Code section 835a(b).

•When Peace Officer Need Not Retreat. Penal Code section 835a(d).

•Definitions. Penal Code section 835a(e).

•“There is an abundance of authority permitting a plaintiff to go to the jury on both intentional and negligent tort theories, even though they are inconsistent. It has often been pointed out that there is no prohibition against pleading inconsistent causes of action stated in as many ways as plaintiff believes his evidence will show, and he is entitled to recover if one well pleaded count is supported by the evidence.” (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 586 [86 Cal.Rptr. 465, 468 P.2d 825].)

•“The evidence relevant to negligence and intentional tort overlaps here and presents a case similar to Grudt. … [¶] This court held it was reversible error to exclude the negligence issue from the jury even though plaintiff also had pled intentional tort. The court pointed to the rule that a party may proceed on inconsistent causes of action unless a nonsuit is appropriate.” (Munoz v. Olin (1979) 24 Cal.3d 629, 635 [156 Cal.Rptr. 727, 596 P.2d 1143].)

•“Consistent with these principles and the factors the high court has identified, the federal court in this case did not instruct the jury to conduct some abstract or nebulous balancing of competing interests. Instead, as noted above, it instructed the jury to determine the reasonableness of the officers’ actions in light of ‘the totality of the circumstances at the time,’ including ‘the severity of the crime at issue, whether the plaintiff posed a reasonable threat to the safety of the officer or others, and whether the plaintiff was actively resisting detention or attempting to escape.’ The same consideration of the totality of the circumstances is required in determining reasonableness under California negligence law. Moreover, California’s civil jury instructions specifically direct the jury, in determining whether police officers used unreasonable force for purposes of tort liability, to consider the same factors that the high court has identified and that the federal court’s instructions in this case set forth. (Judicial Council of Cal. Civ. Jury Instns. (2008) CACI No. 1305.) Thus, plaintiffs err in arguing that the federal and state standards of reasonableness differ in that the former involves a fact finder’s balancing of competing interests.” (Hernandez, supra, 46 Cal.4th at p. 514, internal citation omitted.)

•“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘ “the nature and quality of the intrusion on the individual’s Fourth Amendment interests” ’ against the countervailing governmental interests at stake. Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. Because ‘[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,’ however, 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 citations omitted.)

•“The most important of these [Graham factors, 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].)

•“Plaintiff must prove unreasonable force as an element of the tort.” (Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1272 [74 Cal.Rptr.2d 614].)

•“ ‘ “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. … [T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. …” ’ In calculating whether the amount of force was excessive, a trier of fact must recognize that peace officers are often forced to make split-second judgments, in tense circumstances, concerning the amount of force required.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 527–528 [89 Cal.Rptr.3d 801], internal citations omitted.)

•“ ‘[A]s long as an officer’s conduct falls within the range of conduct that is reasonable under the circumstances, there is no requirement that he or she choose the “most reasonable” action or the conduct that is the least likely to cause harm and at the same time the most likely to result in the successful apprehension of a violent suspect, in order to avoid liability for negligence.’” (Hayes, supra, 57 Cal.4th at p. 632.)

•“The California Supreme Court did not address whether decisions before non-deadly force can be actionable negligence, but addressed this issue only in the context of ‘deadly force.’” (Mulligan v. Nichols (9th Cir. 2016) 835 F.3d 983, 991, fn. 7.)

•“[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.)