Model Jury - Section 11
CIVIL INSTRUCTIONS
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11.00 CIVIL RIGHTS ACTIONS
Preliminary Comment
These instructions do not encompass changes made by the 1991 Civil Rights Act and codified, as pertinent to this section, at 42 U.S.C. §§ 1981, 1981a, and 1988. These instructions also do not address any issues regarding the retroactivity of the 1991 Act.
11.01 VIOLATION OF FEDERAL CIVIL RIGHTS--ELEMENTS AND BURDEN OF PROOF (42 U.S.C. § 1983)
[On plaintiff's ________________ claim,] the plaintiff has the burden of proving each of the following by a preponderance of the evidence:
1. the acts or omissions of the defendant were intentional;
2. the defendant acted under color of law; and
3. the acts or omissions of the defendant were the [proximate] [legal] cause of the deprivation of the plaintiff's rights protected by the Constitution [or laws] of the United States.
[Add appropriate concluding paragraphs from Instructions 5.03, 5.04, or 5.05.]
11.01.01 UNDER COLOR OF LAW DEFINED (42 U.S.C. § 1983)
Acts are done under color of law when a person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation. [[The parties have stipulated that] [The court has found that] the defendant acted under color of law.]
11.01.02 EXCESSIVE FORCE--UNREASONABLE SEIZURE--LAWFUL ARREST (42 U.S.C. § 1983)
The plaintiff claims the defendant, by using excessive force in making a lawful arrest, deprived the plaintiff of the Fourth Amendment constitutional right to be free from an unreasonable seizure.
A law enforcement officer has the right to use such force as is reasonably necessary under the circumstances to make a lawful arrest. An unreasonable seizure occurs when a law enforcement officer uses excessive force in making a lawful arrest.
Whether force is reasonably necessary or excessive is measured by the force a reasonable and prudent law enforcement officer would use under the circumstances.
Comment
See Graham v. Connor, 490 U.S. 386 (1989).
11.01.03 UNREASONABLE SEARCH--GENERALLY (42 U.S.C. § 1983)
The plaintiff claims that the defendant intentionally deprived the plaintiff of the Fourth Amendment constitutional right to be free from an unreasonable search of the plaintiff's [person, home, automobile, office, etc.].
The plaintiff has the burden of proving by a preponderance of the evidence that the search was unreasonable.
11.01.04 UNREASONABLE SEARCH--EXCEPTIONS TO WARRANT
REQUIREMENT--SEARCH INCIDENT TO LAWFUL ARREST
(42 U.S.C. § 1983)
A search is reasonable, and a search warrant is not required, if a search is conducted as an incident to a lawful arrest.
Under this exception to the search warrant requirement, an arresting officer may search only the person arrested and the area within which that person might gain possession of a weapon or might destroy or hide evidence.
Comment
This instruction is not for use for automobile searches.
11.01.05 UNREASONABLE SEARCH--EXCEPTIONS TO WARRANT REQUIREMENT--CONSENT (42 U.S.C. § 1983)
A search is reasonable, and a search warrant is not required, if a person in lawful possession of the area knowingly and voluntarily consents to the search.
11.01.06 UNREASONABLE SEARCH--EXCEPTIONS TO WARRANT REQUIREMENT--EXIGENT CIRCUMSTANCES (42 U.S.C. § 1983)
A search is reasonable, and a search warrant is not required, if all of the circumstances known to the officer at the time, would cause a reasonable person to believe that entry or search was necessary to prevent [physical harm to the officer or other persons] [the destruction or concealment of evidence] [the escape of a suspect], and if there was insufficient time to get a search warrant.
11.02 QUALIFIED IMMUNITY (42 U.S.C. § 1983)
Comment
For purposes of section 1983, qualified immunity is immunity from suit. Whether a reasonable officer could have believed the officer's conduct was proper under established law is a question of law for the court and should be determined at the earliest possible point in the litigation. Hunter v. Bryant, ___ U.S. ___, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991) (per curiam); Act Up! Portland v. Bagley, No. 90-35888, 1993 WL 29109 at *3-*4 (9th Cir. 1993).
11.03.01 MUNICIPAL LIABILITY (42 U.S.C. § 1983)
When a plaintiff is deprived of a constitutional right as a result of the official policy of a [city] [county], the [city] [county] is liable for the deprivation.
11.03.02 MUNICIPAL LIABILITY--OFFICIAL POLICY DEFINED (42 U.S.C. § 1983)
"Official policy" means:
[1. a rule or regulation promulgated, adopted, or ratified by the governmental entity's legislative body;]
[2. a policy statement or decision that is officially made by the [city's] [county's] lawmaking officer or policy-making official;]
[3. a custom that is a permanent, widespread, well-settled practice that constitutes a standard operating procedure of the [city] [county];] or
[4. an act or omission ratified by the [city's] [county's] lawmaking officer or policy-making official].
Comment
These definitions are selected examples of official policy drawn from the cited cases. The instruction may need to be adapted to the facts of a particular case.
The court may need to instruct the jury about who are policy-makers as a matter of law. See Instruction 11.03.03.
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989); Monell v. Department of Social Servs. of New York, 436 U.S. 658 (1978); Redman v. County of San Diego, 942 F.2d 1435, 1443-44 (9th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 972 (1992); Los Angeles Police Protective League v. Gates, 907 F.2d 879, 887 (9th Cir. 1990); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989).
11.03.03 OFFICIAL POLICY MAKERS
The acts or omissions of constitute official policy of the [city] [county] of .
Comment
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989).
11.03.04 MUNICIPAL LIABILITY--FAILURE TO TRAIN--ELEMENTS AND BURDEN OF PROOF
[On the plaintiff's claim for failure to train,] the plaintiff has the burden of proving each of the following by a preponderance of the evidence:
1. the [city's] [county's] training program was not adequate to train its [officers] [employees] to respond properly to the usual and recurring situations with which they must deal;
2. the [city] [county] was deliberately indifferent to the need to train its [officers] [employees] adequately; and
3. the failure to provide proper training was the [proximate] [legal] cause of the deprivation of the plaintiff's rights protected by the Constitution [or laws] of the United States.
[Add appropriate concluding paragraphs from Instructions 5.03, 5.04, or 5.05.]
Comment
Merritt v. County of Los Angeles, 875 F.2d 765, 769-70 (9th Cir. 1989).
11.03.05 MUNICIPAL LIABILITY--DELIBERATE INDIFFERENCE DEFINED
(42 U.S.C. § 1983)
"Deliberate indifference" to the rights of others is the conscious or reckless disregard of the consequences of one's acts or omissions.
Comment
Redman v. County of San Diego, 942 F.2d 1435, 1442 (9th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 972 (1992).
11.04 DAMAGES FOR DEPRIVATION OF CIVIL RIGHTS--ACTUAL OR NOMINAL (42 U.S.C. § 1983)
If you find for the plaintiff [on plaintiff's __________________ claim], you must determine plaintiff's damages. Plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for the deprivation of civil rights [proximately] [legally] caused by the defendant. You should consider the following:
[Here insert types of damages. See Instruction 7.02--
MEASURES OF TYPES OF DAMAGES]
If you find for the plaintiff, but you find that the plaintiff has failed to prove actual damages, you shall return an award of nominal damages not to exceed one dollar.
Comment
See George v. City of Long Beach, 973 F.2d 706 (9th Cir. 1992); Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991).