Instruction 440 [Negligent Use of Nondeadly Force by Law Enforcement Officer in Arrest or Other Seizure—Essential Factual Elements]:
A law enforcement officer may use reasonable force to arrest, detain, prevent escape or overcome resistance by a person when the officer has reasonable cause to believe that that person has committed or is committing a crime. However, the officer may use only that degree of force necessary to arrest, detain, prevent escape of or overcome resistance by the person. [Even if the officer is mistaken, a person being arrested or detained has a duty not to use force to resist the officer unless the officer is using unreasonable force.]
The plaintiff claims that the defendant was negligent in using unreasonable force to arrest, detain, prevent escape of or overcome resistance by him. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant used force to arrest, detain, prevent escape of or overcome resistance by the plaintiff;
2. That the amount of force used by the defendant was unreasonable;
3. That the plaintiff was harmed; and
4. That the defendant’s use of unreasonable force was a substantial factor in causing the plaintiff’s harm.
In deciding whether the defendant used unreasonable force, you must consider the totality of the circumstances to determine what amount of force a reasonable the officer in the defendant’s position would have used under the same or similar circumstances. ‘Totality of the circumstances’ means all facts known to the officer at the time, including the conduct of the defendant and the plaintiff leading up to the use of force. Among the factors to be considered are the following:
(a) Whether the plaintiff reasonably appeared to pose an immediate threat to the safety of the defendant or others;
(b) The seriousness of the crime at issue; and
(c) Whether the plaintiff was actively resisting arrest or detention or attempting to avoid arrest or detention by flight; and
[(d) The defendant’s tactical conduct and decisions before using force on the plaintiff.]
An officer who makes or attempts to make an arrest does not have to retreat or stop because the person being arrested is resisting or threatening to resist. Tactical repositioning or other deescalation tactics are not retreat. An officer does not lose the right to self-defense by using objectively reasonable force to arrest, detain, prevent escape of, or overcome resistance by the person.
Instruction 441 [Negligent Use of Deadly Force by Peace Officer—Essential Factual Elements]:
A peace officer may use deadly force only when necessary in defense of human life. The plaintiff claims that the defendant was negligent in using deadly force to arrest, detain, prevent escape of or overcome resistance to her [or the decedent]. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant was a peace officer;
2. That the defendant used deadly force on the plaintiff [or the decedent];
3. That the defendant’s use of deadly force was not necessary to defend human life;
4. That the plaintiff [or the decedent] was harmed [or killed]; and
5. That the defendant’s use of deadly force was a substantial factor in causing the plaintiff [or the decedent]’s harm [or death].
The defendant’s use of deadly force was necessary to defend human life only if a reasonable officer in the same situation would have believed, based on the totality of the circumstances known to or perceived by the defendant at the time, that deadly force was necessary [either] to defend against an imminent threat of death or serious bodily injury to the defendant or another person [or to apprehend a fleeing person for a felony, when all of the following conditions are present: the felony threatened or resulted in death or serious bodily injury to another; the defendant reasonably believed that the person fleeing would cause death or serious bodily injury to another unless immediately apprehended; and the defendant made reasonable efforts to identify himself as a peace officer and to warn that deadly force may be used, unless the officer had objectively reasonable grounds to believe the person is aware of those facts.]
A peace officer must not use deadly force against persons based only on the danger those persons pose to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.
A person being arrested or detained has a duty not to use force to resist a peace officer unless the peace officer is using unreasonable force.
“Deadly force” is force that creates a substantial risk of causing death or serious bodily injury. It is not limited to the discharge of a firearm.
A threat of death or serious bodily injury is “imminent” if, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or to another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.
“Totality of the circumstances” means all facts known to or perceived by the peace officer at the time, including the conduct of the defendant and the plaintiff [or the decedent] leading up to the use of deadly force. In determining whether the defendant’s use of deadly force was necessary in defense of human life, you must consider the defendant’s tactical conduct and decisions before using deadly force on the plaintiff [or the decedent] and whether the defendant used other available resources and techniques as [an] alternative[s] to deadly force, if it was reasonably safe and feasible to an objectively reasonable officer.
A peace officer who makes or attempts to make an arrest does not have to retreat or stop because the person being arrested is resisting or threatening to resist. Tactical repositioning or other deescalation tactics are not retreat. A peace officer does not lose the right to self-defense by using objectively reasonable force to arrest, detain, prevent escape of or overcome resistance.
Instruction 450A [Good Samaritan—Nonemergency]:
The defendant claims that he is not responsible for the plaintiff’s harm because he was voluntarily trying to protect the plaintiff from harm in a nonemergency situation. If you decide that the defendant was negligent, he is not responsible unless the plaintiff proves both of the following:
1. That the defendant’s failure to use reasonable care added to the risk of harm; or that the defendant’s conduct caused the plaintiff to reasonably rely on his protection; and
2. That the additional risk or reliance was a substantial factor in causing harm to the plaintiff.
Instruction 450B [Good Samaritan—Scene of Emergency]:
The defendant claims that he is not responsible for the plaintiff’s harm because he was trying to protect the plaintiff from harm at the scene of an emergency.
To succeed on this defense, the defendant must prove all of the following:
1. That the defendant rendered medical or nonmedical care or assistance to the plaintiff at the scene of an emergency;
2. That the defendant was acting in good faith; and
3. That the defendant was not acting for compensation.
If you decide that the defendant has proved all of the above, but you decide that the defendant was negligent, he is not responsible unless the plaintiff proves that the defendant’s conduct constituted gross negligence or willful or wanton misconduct.
“Gross negligence” is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation.
“Willful or wanton misconduct” means conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that the person knows or should know it is highly probable that harm will result.
If you find that the defendant was grossly negligent or acted willfully or wantonly, the plaintiff must then also prove:
1. That the defendant’s conduct added to the risk of harm; or that the defendant’s conduct caused the plaintiff to reasonably rely on his protection; and
2. That the additional risk or reliance was a substantial factor in causing harm to the plaintiff.
Instruction 450C [Negligent Undertaking]:
The plaintiff claims that the defendant is responsible for the plaintiff’s harm because the defendant failed to exercise reasonable care in rendering services to the third party. To establish this claim, the plaintiff must prove all of the following:
1. That the defendant, voluntarily or for a charge, rendered services to the third party;
2. That these services were of a kind that the defendant should have recognized as needed for the protection of the plaintiff;
3. That the defendant failed to exercise reasonable care in rendering these services;
4. That the defendant’s failure to exercise reasonable care was a substantial factor in causing harm to the plaintiff; and
5. That the defendant’s failure to use reasonable care added to the risk of harm; That the defendant’s services were rendered to perform a duty that the third party owed to third persons including the plaintiff; or That the plaintiff suffered harm because the third party or the plaintiff relied on the defendant’s services.
[Judicial Council Of California Civil Jury Instructions]
