The plaintiff brings [his] [her] claim[s] under the federal statute, 42 U.S.C. § 1983, which provides that any person or persons who, under color of state law, deprives another of any rights, privileges, or immunities secured by the Constitution or laws of the United States shall be liable to the injured party.

Comment

             Past decisions of the Supreme Court and the Ninth Circuit used the phrases “under color of law” and “under color of state law” interchangeably.  Compare, e.g., Livadas v. Bradshaw, 512 U.S. 107, 132 (1994), and Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021) (using phrase “under color of law”), with Health & Hosp. Corp. of Marion Cnty. v. Talevski, 143 S. Ct. 1444, 1450 (2023), and Chaudhry v. Aragon, 68 F.4th 1161, 1171 (9th Cir. 2023) (using phrase “under color of state law”).

             Because recent Supreme Court and Ninth Circuit cases more frequently use the phrase “under color of state law,” rather than “under color of law,” the Committee uses the phrase “under color of state law.” See, e.g., Talevski, 143 S. Ct. at 1450 (using phrase “color of state law”); Torres v. Madrid, 141 S. Ct. 989, 994 (2021) (same); Chaudhry, 68 F.4th at 1171 (same); Roberts v. Springfield Util. Bd., 68 F.4th 470, 474 n.2 (9th Cir. 2023) (same). 

Generally, “a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.”  Paeste v. Gov’t of Guam, 798 F.3d 1228, 1238 (9th Cir. 2015) (quoting West v. Atkins, 487 U.S. 42, 50 (1988)); but see Thai v. County of Los Angeles, 127 F.4th 1254, 1261 (9th Cir. 2025) (holding that law enforcement officers from the Los Angeles District Attorney’s Office were acting under color of federal law, not under color of state law, where the source of authority for the joint federal-state task force was federal in nature and the challenged conduct was subject to immediate control of federal supervisors). 

The color of law inquiry and the state action inquiry are the same.  Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747 (9th Cir. 2020). When a private actor’s conduct is challenged as “state action” under § 1983, a court looks to two requirements that the private actor must meet: (1) the state policy requirement; and (2) the state actor requirement. Wright v. Serv. Emps. Int’l Union Loc. 503, 48 F.4th 1112, 1121 (9th Cir. 2022). Under the first requirement, the question is whether the claimed constitutional deprivation resulted from the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible.  Id. at 1121-22.  Under the second requirement, courts generally use one of four tests outlined by the Supreme Court to examine whether the party charged with the deprivation could be described in all fairness as a “state actor.”  Id. at 1122.  Those tests are the public function test, the joint action test, the state compulsion test, and the governmental nexus test.  Id.; see Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747 (9th Cir. 2020). 

For a discussion of the public function test, see Florer v. Congregation Pidyon Shevuyim, N.A.,639 F.3d 916, 924-26 (9th Cir. 2011); Wright, 48 F.4th at 1124. For a discussion of the joint action test, see Pasadena Republican Club v. W. Justice Ctr., 985 F.3d 1161, 1167-71 (9th Cir. 2021). For a discussion of the state compulsion test, see Johnson v. Knowles, 113 F.3d 1114, 1119-20 (9th Cir. 1997). For a discussion of the governmental nexus test, see Lindke v. Freed, 601 U.S. 187, 199 (2024) (holding that where a city manager deleted comments from posts on his individual social media page and blocked the commenter, a showing of state action would require a plaintiff to show that the city manager “(1) had actual authority to speak on behalf of the State on a particular matter, and(2) purported to exercise that authority in the relevant posts”). 

 

Revised March 2025

“In a § 1983 action, the plaintiff must also demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.”  Bearchild v. Cobban, 947 F.3d 1130, 1150 (9th Cir. 2020) (quotingHarper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008)).  “To meet this causation requirement, the plaintiff must establish both causation-in-fact and proximate causation.”  Id.  A defendant’s conduct is an “actual cause,” or “cause-in-fact,” of a plaintiff’s injury only if the injury would not have occurred but for that conduct.  Chaudhry v. Aragon, 68 F.4th 1161, 1170 n.11 (9th Cir. 2023).  For a general discussion of “but for causation” generally, see Civil Instruction 10.3 (Civil Rights—Title VII—Disparate Treatment— “Because of” Defined). 

“A defendant’s conduct is a ‘proximate cause’ of a plaintiff’s injury if ‘it was not just any cause, but one with a sufficient connection to the result.’”  Chaudhry, 68 F.4th at 1170 n.12 (quoting Paroline v. United States, 572 U.S. 434, 444 (2014)). “‘Proximate cause is often explicated in terms of foreseeability,’ such that the proximate cause requirement ‘preclude[s] liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity.’”  Id. (quoting Paroline, 572 U.S. at 445)

A person deprives another of a constitutional right, within the meaning of § 1983, “if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).  The requisite causation can be established either “‘by some kind of direct personal participation in the deprivation’ or ‘by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.’”  Chaudhry, 68 F.4th at 1169.  A police officer’s liability under section 1983 is predicated on his integral participation in the alleged violation.”  Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019) (quoting Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (internal quotes omitted)).  Thus, an “officer could be held liable where he is just one participant in a sequence of events that gives rise to [the alleged] constitutional violation.”  Nicholson, 935 F.3d at 692; but see Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018) (“Officers may not be held liable merely for being present at the scene of a constitutional violation or for being a member of the same operational unit as a wrongdoer.”). 

“The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.”  Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); see also Hines v. Youseff, 914 F.3d 1218, 1228 (9th Cir. 2019) (“[Plaintiff] must show that each defendant personally played a role in violating the Constitution.  An official is liable under § 1983 only if ‘culpable action, or inaction, is directly attributed to them.’” (footnote omitted)). 

Supervisor Liability 

            “A defendant may be held liable as a supervisor under § 1983 ‘if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’”  Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); see also Lacey, 693 F.3d at 915-16 (discussing culpability and intent of supervisors).  Supervisors can be held liable for: “1) their own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) for conduct that showed a reckless or callous indifference to the rights of others.”  Hyde v. City of Willcox, 23 F.4th 863, 874 (9th Cir. 2022); see Starr, 652 F.3d at 1207-08; see also OSU Student All. v. Ray, 699 F.3d 1053, 1076 (9th Cir. 2012) (“Advancing a policy that requires subordinates to commit constitutional violations is always enough for § 1983 liability . . . so long as the policy proximately causes the harm—that is, so long as the plaintiff’s constitutional injury in fact occurs pursuant to the policy.”).  However, supervisors may not be held liable under § 1983 for the unconstitutional actions of their subordinates based solely on a theory of respondeat superior.  Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). There can be no such supervisorial liability in the absence of an underlying constitutional violation by subordinates. Puente v. City of Phoenix, 123 F.4th 1035, 1064 (9th Cir. 2024). 

Integral Participant Doctrine 

Under Ninth Circuit cases, an official whose individual actions do not rise to the level of a constitutional violation “may be held liable under section 1983 only if the official is an ‘integral participant’ in the unlawful act.”  Peck v. Montoya, 51 F.4th 877, 889 (9th Cir. 2022) (quoting Reynaga Hernandez v. Skinner, 969 F.3d 930, 941 (9thCir. 2020)).  An official may be deemed an “integral participant” in a constitutional violation, “only if (1) the defendant knew about and acquiesced in the constitutionally defective conduct as part of a common plan with those whose conduct constituted the violation, or (2) the defendant set in motion a series of acts by others which the defendant knew or reasonably should have known would cause others to inflict the constitutional injury.” Id. at 891; see Spencer v. Pew, 117 F.4th 1130, 1144-45 (9th Cir. 2024) (rejecting plaintiff’s claim that two officers were integral participants in a third officer’s use of excessive force because plaintiff did not present evidence that two of the officers knowingly acquiesced in a third officer’s unlawful conduct as a part of a common plan with him or evidence  that the two officers’ conduct  set in motion acts that they reasonably should have known would cause the third officer to engage in unlawful conduct). When liability is alleged against a defendant as an integral participant on this basis, the model instruction stated above will need to be modified. 

Deliberate Fabrication 

Typically, in constitutional tort cases, the filing of a criminal complaint usually immunizes the investigating officers “because it is presumed that the prosecutor filing the complaint exercised independent judgment in determining that probable cause for an accused’s arrest exists at that time.”  Caldwell v. City & Cnty. of San Francisco, 889 F.3d 1105, 1115 (9th Cir. 2018) (quoting Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981), overruled on other grounds by Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008)).  However, in deliberate fabrication cases, the presumption can be overcome if a plaintiff establishes that officers “either presented false evidence to or withheld crucial information from the prosecutor.”  Caldwell, 889 F.3d at 1116. At that point, “the analysis reverts back to a normal causation question” and the issue again becomes whether the fabricated evidence was the cause in fact and proximate cause of the plaintiff’s injury.  Id. at 1115-16. 

First Amendment Retaliation Claims 

When a § 1983 claim alleges discrimination because of the plaintiff’s exercise of a First Amendment right, use the “substantial or motivating factor” formulation already included in Instructions 9.9 (Particular Rights—First Amendment—Public Employees—Speech) and 9.11 (Particular Rights—First Amendment—“Citizen” Plaintiff). 

Monell Claims 

“Under Monell, a plaintiff must also show that the policy at issue was the ‘actionable cause’ of the constitutional violation, which requires showing both but for and proximate causation.”  Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (citing Harper, 533 F.3d at 1026).  Regardless of what theory the plaintiff employs to establish municipal liability— policy, custom, or failure to train— the plaintiff must establish that the policy or custom is the “moving force” behind the constitutional violation. City of Canton v. Harris, 489 U.S. 378, 389 (1989);see Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013).  To meet the moving force requirement, “the plaintiff must show both causation-in-fact and proximate causation.”  Gravelet-Blondin, 728 F.3d at 1096.  If the plaintiff relies on the theory of ratification, see Instruction 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification— Elements and Burden of Proof), which discusses ratification and causation. 

In Oviatt v. Pearce, 954 F.2d 1470, 1481 (9th Cir. 1992), the Ninth Circuit approved the trial court’s “moving force” instruction on causation in a § 1983 Monell claim as follows:

 

The district court instructed the jury that “in order for [the policy] to be the cause of injury, you must find that it is so closely related as to be the moving force causing the ultimate injury.”  Because this instruction closely tracks the language in City of Canton, we find that it correctly stated the law and adequately covered the issue of causation.  See City of Canton, 489 U.S. at 391 (“the identified deficiency in a city’s training program must be closely related to the ultimate injury.”) (emphasis in original). 

Concurrent Cause 

In Jones v. Williams, the Ninth Circuit affirmed a defense verdict in a § 1983 case in which the district judge gave the following “concurrent cause” instruction to address allegations of supervisory and group liability: “[M]any factors or things or the conduct of two or more persons can operate at the same time either independently or together to cause injury or damage and in such a case each may be a proximate cause.”  Jones v. Williams, 297 F.3d 930, 937 n.6 (9th Cir. 2002).

Revised March 2025

In order to prevail on a § 1983 claim against the defendant [name of individual defendant], the plaintiff must prove each of the following elements by a preponderance of the evidence:
                                                                  

1.         the defendant acted under color of state law; and 

            2.         the [act[s]] [failure to act] of the defendant deprived the plaintiff of particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions; and 

            3.         The defendant’s conduct was an actual cause of the claimed injury. 

            A person acts “under color of state law” when the 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] [I instruct you] that the defendant acted under color of state law.] 

The defendant’s conduct is an actual cause of a plaintiff's injury only if the injury would not have occurred ‘but for' that conduct, and the conduct has a sufficient connection to the result. 

            If you find the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements the plaintiff is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff.  If, on the other hand, you find that the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant. 

Comment           

            Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9-9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue.           

            The elements of a § 1983 claim are (1) the action the action was committed by a person acting “under color of state law” and (2) the action resulted in the deprivation of a constitutional right or federal statutory right. Ochoa v. Pub. Consulting Grp., Inc., 48 F.4th 1102, 1107 (9th Cir. 2022) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).  In order to be individually liable under § 1983, an individual must personally participate in an alleged rights deprivation.  Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010).           

            “In a § 1983 action, the plaintiff must also demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.” Bearchild v. Cobban, 947 F.3d 1130, 1150 (9th Cir. 2020) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).  “To meet this causation requirement, the plaintiff must establish both causation-in-fact and proximate causation.”  Id.; see also Chaudhry v. Aragon, 68 F.4th 1161, 1169 nn.11-12 (9th Cir. 2023) (defining causation-in-fact and proximate causation). 

            In Reynaga Hernandez v. Skinner, 969 F.3d 930, 941-42 (9th Cir. 2020), the Ninth Circuit discussed, for the first time, the minimum level of involvement needed for § 1983 liability under the integral-participant doctrine.  An actor may be deemed to have caused a constitutional violation under the “integral-participant doctrine,” “only if (1) the defendant knew about and acquiesced in the constitutionally defective conduct as part of a common plan with those whose conduct constituted the violation, or (2) the defendant set in motion a series of acts by others which the defendant knew or reasonably should have known would cause others to inflict the constitutional injury.”  Peck v. Montoya, 51 F.4th 877, 891 (9th Cir. 2022); see id. at 889-92 (holding that when non shooting officers did not form plan with shooting officers to shoot suspect, did not set in motion acts by shooting officers, and did not know or should have known constitutional violation would occur, non-shooting officers were not integral participants in constitutional violation)); see Spencer v. Pew, 117 F.4th 1130, 1144-45 (9th Cir. 2024) (rejecting plaintiff’s claim that two officers were integral participants in a third officer’s use of excessive force because plaintiff did not present evidence that two of the officers knowingly acquiesced in a third officer’s unlawful conduct as a part of a common plan with him or evidence  that the two officers’ conduct  set in motion acts that they reasonably should have known would cause the third officer to engage in unlawful conduct).  When liability is alleged against a defendant on this basis, the model instruction stated above will need to be modified. 

 

Revised November 2024

            In order to prevail on the plaintiff’s § 1983 claim against the supervisory defendant, [name], the plaintiff must prove each of the following elements by a preponderance of the evidence:
 

            1.         the supervisory defendant acted under color of state law;
 

            2.         the [act[s]] [failure to act] of the supervisory defendant’s subordinate[s] [name[s]] deprived the plaintiff of particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;
 

            3.         [the supervisory defendant directed subordinate[s] in the [act[s]] [failure to act] that deprived the plaintiff of these rights;] 

or
 

[the supervisory defendant set in motion a series of acts by  subordinate[s], or knowingly refused to terminate a series of acts by  subordinate[s], that the supervisor knew or reasonably should have known would cause the subordinate[s] to deprive the plaintiff of these rights;] 

or
 

[(a)      the supervisory defendant knew that the subordinate[s] were engaging in these act[s] and knew or reasonably should have known that the subordinate[’s][s’] conduct would deprive the plaintiff of these rights; and
 

(b)       the supervisory defendant failed to act to prevent the subordinate[s] from engaging in such conduct;] 

or
 

                        [(a)      the supervisory defendant disregarded the known or obvious consequence that a particular training deficiency or omission would cause [his][her] subordinate[s] to violate the plaintiff’s constitutional rights; and
 

                        (b)       that deficiency or omission actually caused the subordinates to deprive the plaintiff of plaintiff’s constitutional rights;] 

or
 

                                    [the supervisory defendant engaged in conduct that showed a reckless or callous
            indifference to the deprivation by the subordinate of the rights of others;] 

and
 

            4.         The supervisory defendant’s conduct was so closely related to the deprivation of the plaintiff’s rights as to be the moving force that caused the ultimate injury.

            A person acts “under color of state law” when the 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] [I instruct you that] the defendant acted under color of state law.] 

            If you find the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements [he] [she] is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff. If, on the other hand, you find that the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant. 

Comment 

            A supervisor can be held liable in his or her individual capacity under § 1983 only if (1) the supervisor personally participated in the constitutional violation, or (2) there is a “sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989)).  Moreover, for liability to attach, supervisors must have actual supervisory authority over the government actor who committed the alleged violations.  Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018).  In other words, “[t]hey cannot be supervisors of persons beyond their control.”  Id.; Olson v. County of Grant, 127 F.4th 1193, 1998 (9th Cir. 2025) (declining “to impose supervisory liability for a constitutional violation where, at best, there was a cooperative relationship between [law enforcement] colleagues”). There also can be no such supervisorial liability in the absence of an underlying constitutional violation by subordinates. Puente v. City of Phoenix, 123 F.4th 1035, 1064 (9th Cir. 2024).  If the plaintiff alleges a supervisor personally participated in a constitutional violation, use Instruction 9.3 (Section 1983 Claim Against Defendant in Individual Capacity—Elements and Burden of Proof).  If the plaintiff alleges a subordinate committed a constitutional violation and there is a causal connection between the violation and the supervisor’s wrongful conduct, use this instruction. 

            When there is a factual dispute concerning whether an individual is a supervisor for purposes of § 1983 liability, the court should also instruct the jury on the plaintiff’s burden to prove the defendant’s supervisory status. 

            Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9–9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue. 

            Element 3 of this instruction aims to include the principal formulations to establish a supervisor’s § 1983 liability based on Ninth Circuit decisions. 

Supervisors can be held liable for: “1) their own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) for conduct that showed a reckless or callous indifference to the rights of others.” Hyde v. City of Willcox, 23 F.4th 863, 874 (9th Cir. 2022); see Starr, 652 F.3d at 1207-08. 

            A supervisor is liable for the acts of his subordinates if the supervisor participated in or directed the violations.  Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1166 (9th Cir. 2020). 

            In Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991), the Ninth Circuit approved the district court’s instruction that the jury could find a police chief liable in his individual capacity if he “set[ ] in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he kn[e]w or reasonably should [have] know[n], would cause others to inflict the constitutional injury.” Id. at 646 (citations omitted). 

            A supervisor can be held liable in his or her individual capacity if he or she “knew of the violations and failed to act to prevent them.”  Maxwell v. County of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013); accord Vazquez, 949 F.3d at 1166. 

            In Flores v. County of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014), the court held that plaintiffs must show that the supervisory defendant “was deliberately indifferent to the need to train subordinates, and the lack of training actually caused the constitutional harm or deprivation of rights.”  Under this standard, the supervisor must have “disregarded the known or obvious consequences that a particular omission in their training program would cause . . . employees to violate citizens’ constitutional rights.”  Id. (quoting Connick v. Thompson, 563 U.S. 51, 51-52 (2011)). Also, a plaintiff “may state a claim against a supervisor for deliberate indifference based upon the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her subordinates.”  Starr, 652 F.3d at 1207. 

            Although § 1983 suits do not allow for the imposition of vicarious liability and a plaintiff must prove that each supervisory defendant, through that defendant’s own actions, has violated the Constitution, the factors that a plaintiff must prove in order to establish a claim for supervisory liability depend on the alleged underlying constitutional deprivation.  See Ashcroft v. Iqbal, 556 U.S. 662, 675-77 (2009) (finding that plaintiff needed to plead and prove that supervisors acted with discriminatory purpose or intent in order to state claim for supervisory liability for invidious discrimination in contravention of the First and Fifth Amendments; Starr, 652 F.3d at 1206-07 (explaining that because claim of unconstitutional conditions of confinement may be based on theory of deliberate indifference, unlike claim of unconstitutional discrimination, plaintiff need only show that supervisor acted or failed to act in manner that was deliberately indifferent to inmate’s Eighth Amendment rights in order to hold supervisor liable for his or her own culpable actions).  

Revised March 2025

            In order to prevail on plaintiff [name]’s § 1983 claim against defendant [name of local governing body] alleging liability based on an official policy, practice, or custom, the plaintiff must prove each of the following elements by a preponderance of the evidence:
 

           1.         [Name of defendant’s official or employee] acted under color of state law; 

2.         the act[s] of [name of defendant’s official or employee] deprived plaintiff [name] of particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;

 

3.         [Name of defendant’s official or employee] acted pursuant to an expressly adopted official policy or a widespread or longstanding practice or custom of the defendant [name of local governing body]; and

 

4.         defendant [name of local governing body]’s official policy or widespread or longstanding practice or custom caused the deprivation of plaintiff [name]’s rights by the [name of defendant’s official or employee]; that is, the [name of local governing body]’s official policy or widespread or longstanding practice or custom is so closely related to the deprivation of plaintiff [name]’s rights as to be the moving force that caused the ultimate injury. 

            A person acts “under color of state law” when the 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] [I instruct you that] [name of defendant’s official or employee] acted under color of state law.] 

            “Official policy” means a formal policy, such as a rule or regulation adopted by defendant [name of local governing body], resulting from a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. 

            “Practice or custom” means any longstanding, widespread, or well-settled practice or custom that constitutes a standard operating procedure of defendant [name of local governing body].  [A practice or custom can be established by repeated constitutional violations that were not properly investigated and for which the violator[s] [was] [were] not disciplined, reprimanded or punished.] 

            If you find that plaintiff [name] has proved each of these elements, and if you find that plaintiff [name] has proved all the elements plaintiff [name] is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for plaintiff [name].  If, on the other hand, you find that plaintiff [name] has failed to prove any one or more of these elements, your verdict should be for defendant [name]. 

Comment 

            Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9–9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue. 

            In addition, use this instruction only when Monell liability is based on an expressly adopted official policy or a widespread or longstanding practice or custom of the defendant that is alleged either to be itself unlawful or to direct employees to act in an unlawful manner.  See, e.g., Endy v. Cnty. of Los Angeles, 975 F.3d 757, 769 (9th Cir. 2020); Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014).  For other bases of Monell liability, see Instructions 9.6 (Section 1983 Claim Against Local Governing Body Defendants Based on Act of Final Policymaker—Elements and Burden of Proof), 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof) and 9.8 (Section 1983 Claim Against Local Governing Body Defendants Based on a Failure to Prevent Violations of Law or a Failure to Train—Elements and Burden of Proof). 

            As noted in the Introductory Comment to this chapter, § 1983 liability of a local governing body may not be based on respondeat superior.  Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978).  Such liability may attach when an employee committed a constitutional violation pursuant to an expressly adopted official policy.  Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013). “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.”  Endy, 975 F.3d at 769 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).  “[A] rule or regulation promulgated, adopted, or ratified by a local governmental entity’s legislative body unquestionably satisfies Monell’s policy requirement[.]”  Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989), overruled on other grounds by Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc).  Whether a municipal policy or custom exists is a question of fact.  Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996) (“Normally, the question of whether a policy or custom exists would be a jury question.  However, when there are no genuine issues of material fact and the plaintiff has failed to establish a prima facie case, disposition by summary judgment is appropriate.”).  

“Official policy” means a formal policy, such as a rule or regulation adopted by the defendant, resulting from a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.  Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986); accord Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021).   

            Such liability may also attach when an employee committed a constitutional violation pursuant to a widespread practice or custom. Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997); Benavidez, 993 F.3d at 1153. A widespread “custom or practice” must be so “persistent” that it constitutes a “permanent and well settled city policy.”  Trevino, 99 F.3dat 918 (quoting Monell, 436 U.S. at 691);see also Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 984 (9th Cir. 2002)(“Showing a ‘longstanding practice or custom which constitutes the “standard operating procedure” of the local government entity’ is one way to establish municipal liability.” (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989))).  A widespread custom or practice cannot be based on “isolated or sporadic incidents; [liability] must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.”  Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 884 (9th Cir. 2022) (quoting Trevino, 99 F.3d at 918). 

             “[A] custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished.”  Hunter v. County of Sacramento, 652 F.3d 1225, 1236 (9^th Cir. 2011); see also Nehad v. Browder, 929 F.3d 1125, 1141-42 (9th Cir. 2019) (citing evidence sufficient to create triable issue regarding informal practice or policy).  The Ninth Circuit has used the term “longstanding” practice or custom interchangeably with the Supreme Court’s more frequent usage of “widespread.”  See, e.g.,Sabra, 44 F.4th at 883Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999); Connick v. Thompson, 563 U.S. 51, 61 (2011).  Use the bracketed language in the last sentence of the penultimate paragraph of the instruction only when the plaintiff has presented substantial evidence of a failure to investigate or discipline and that theory is central to the plaintiff’s case.  See Hunter, 652 F.3d at 1235.“Official nonfeasance can constitute a Monell violation when the municipality in effect ‘has a policy of inaction and such inaction amounts to a failure to protect constitutional rights.’” Scanlon v. County of Los Angeles, 92 F.4th 781, 812 (9th Cir. 2024) (quoting Mortimer v. Baca, 594 F3d 714, 722 (9th Cir. 2010)). 

            A plaintiff seeking to establish municipal liability must demonstrate that the government “had a deliberate policy, custom, or practice that was the ‘moving force’ behind the constitutional violation he suffered.”  Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013) (citations and quotations omitted).  “To meet this requirement, the plaintiff must show both causation-in-fact and proximate causation.”  Id. 

Revised March 2025

  

            A municipality may be liable for the acts of a final policymaker if these acts caused a constitutional violation, even if the constitutional violation occurs only once.  Pembaur v. City of Cincinnati, 475 U.S. 469, 478 & n.6 (1986); see Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 885 (9th Cir. 2022).  In certain situations, a municipality is also liable if a policymaking official fully delegates his or her discretionary authority to a subordinate, and the subordinate uses that discretion.  Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008) ; see alsoPraprotnik, 485 U.S. at 124.  An official may be found to have been delegated final policymaking authority when the official’s discretionary decision is unconstrained by policies not of that official’s making and unreviewable by the municipality’s authorized policymakers. Lytle v. Carl, 382 F.3d 978, 984 (9th Cir. 2004) (citing Christie v. Iopa, 176 F.3d 1231, 1236-37 (9th Cir. 1999)). 

Revised March 2025

           In order to prevail on the plaintiff’s § 1983 claim against defendant [name of local governing body] alleging liability based on ratification by a final policymaker, the plaintiff must prove each of the following elements by a preponderance of the evidence: 

             First, [name of defendant’s employee] acted under color of state law; 

             Second, the [act[s]][failure to act] of [name of defendant’s employee] deprived the plaintiff of  particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions; 

             Third, [name of person the plaintiff alleges was a final policymaker] acted under color of state law; 

             Fourth, [name of final policymaker] had final policymaking authority from defendant [name of local governing body] concerning the [act[s]] [failure to act] of [name of defendant’s employee]; and 

             Fifth, [name of final policymaker] ratified [name of defendant’s employee]’s [act[s] [failure to act], that is, [name of alleged final policymaker] knew of and specifically made a deliberate choice to approve [name of defendant’s employee]’s [act[s]] [failure to act] and the basis for it. 

             A person acts “under color of state law” when the 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] [I instruct you that] the defendant’s [employee] [official] acted under color of state law.] 

             I instruct you that [name of final policymaker] had final policymaking authority from defendant [name of local governing body] concerning the act[s] at issue and, therefore, the fourth element requires no proof. 

             If you find that the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements the plaintiff is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff.  If, on the other hand, the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant.

 Comment 

             Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9–9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue. 

             In addition, use this instruction only when Monell liability is based on ratification by a final policymaker.  For other bases of Monell liability, see Instructions 9.5 (Section 1983 Claim Against Local Governing Body Defendants Based on Unlawful Official Policy, Practice, or Custom—Elements and Burden of Proof), 9.6 (Section 1983 Claim Against Local Governing Body Defendants Based on Act of Final Policymaker—Elements and Burden of Proof), and 9.8 (Section 1983 Claim Against Local Governing Body Defendants Based on a Policy that Fails to Prevent Violations of Law or a Policy of Failure to Train—Elements and Burden of Proof). 

             As noted in the Introductory Comment to this Chapter, § 1983 liability of a local governing body lies when “action pursuant to official municipal policy of some nature caused a constitutional tort,” and not on the basis of respondeatsuperior.  Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978).  A municipality can be liable for an isolated constitutional violation if a final policymaker “ratified” a subordinate’s actions.  Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 885 (9th Cir. 2022); Christie v. Iopa, 176 F.3d 1231, 1238 (9th Cir. 1999); seeCity of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).  To show ratification, a plaintiff must prove that the authorized policymaker approved a subordinate’s decision and the basis for it.  Sabra, 44 F.4th at 885.  See also Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004) (“The policymaker must have knowledge of the constitutional violation and actually approve of it.” (citing Praprotnik, 485 U.S. at 127)).

             The policymaker must have knowledge (actual or constructive) of the constitutional violation and actually approve of it.  Lytle, 382 F.3d at 987; Sabra, 44 F.4th at 885. Ratification generally requires more than acquiescence. Dodge, 56 F.4th at 788 (“a mere failure to discipline . . . does not amount to ratification”).  A mere failure to overrule a subordinate’s actions, without more, is insufficient to support a § 1983 ratification claim. Lytle, 382 F.3d at 987–88 (“[R]atification requires both knowledge of the alleged constitutional violation, and proof that the policymaker specifically approved of the subordinate’s act.”); Christie, 176 F.3d at 1239; Puente v. City of Phoenix, 123 F.4th 1035, 1066 (9th Cir. 2024) (rejecting a ratification argument absent evidence final policy maker “knew and approved” of a subordinate’s decision and the “basis for it”).

             The court must determine as a matter of state law whether certain employees or officials have the power to make official or final policy on a particular issue or subject area.  Jettv. Dallas Indep. Sch. Dist., 491 U.S. 701, 737-38 (1989); see alsoLytle, 382 F.3d at 983 (“For a person to be a final policymaker, he or she must be in a position of authority such that a final decision by that person may appropriately be attributed to the [defendant public body].”)Sabra, 44 F.4th at 885 (rejecting contention that “a professor becomes a ‘final policymaker’ for an entire community college district simply by assuming administrative responsibilities within his department”).

 

Revised March 2025

            In order to prevail on plaintiff [name]’s § 1983 claim against defendant [name of local governing body] alleging liability based on a policy [that fails to prevent violations of law by its] [of a failure to train its] [police officers] [employees], plaintiff [name] must prove each of the following elements by a preponderance of the evidence:

First, the [act[s]] [failure to act] of [name of defendant’s [police officer[s]] [employee[s]]] deprived plaintiff [name] of [his] [her] particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;

Second, [name of defendant’s [police officer[s]] [employee[s]]] acted under color of state law;

Third, the [training] policies of defendant [name of local governing body] were not adequate to [prevent violations of law by its employees] [train its [police officers] [employees] to handle the usual and recurring situations with which they must deal];

Fourth, defendant [name of local governing body] was deliberately indifferent to the [substantial risk that its policies were inadequate to prevent violations of law by its employees] [known or obvious consequences of its failure to train its [police officers] [employees] adequately]; and

Fifth, the failure of defendant [name of local governing body] [to prevent violations of law by its employees] [to provide adequate training] caused the deprivation of plaintiff [name]’s rights by [name of defendant’s [police officer[s]][employee[s]]]; that is, defendant [name]’s failure [to prevent violations of law by its employees] [to train] played a substantial part in bringing about or actually causing the injury or damage to plaintiff [name].

            A person acts “under color of state law” when the 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] [I instruct you that] [name of defendant’s [police officer[s]] [employee[s]] acted under color of state law.]

            A policy is a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.  [A policy of inaction or omission may be based on a failure to implement procedural safeguards to prevent constitutional violations.  To establish that there is a policy based on a failure to preserve constitutional rights, plaintiff [name] must show, in addition to a constitutional violation, that this policy amounts to deliberate indifference to plaintiff [name]’s constitutional rights, and that the policy caused the violation, in the sense that the municipality could have prevented the violation with an appropriate policy.]

            “Deliberate indifference” is the conscious choice to disregard a known or obvious consequences of one’s acts or omissions.  Plaintiff [name] may prove deliberate indifference in this case by showing that the facts available to defendant [name of local governing body] put it on actual or constructive notice that its [failure to implement adequate policies] [failure to train adequately] was substantially certain to result in the violation of the constitutional rights of persons such as plaintiff [name] due to [police officer[s]] [employee[s]]’s conduct.

            If you find that plaintiff [name] has proved each of these elements, and if you find that plaintiff [name] has proved all the elements plaintiff [name] is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for plaintiff [name].  If, on the other hand, plaintiff [name] has failed to prove any one or more of these elements, your verdict should be for defendant [name].

Comment

            Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9–9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue.

            In addition, use this instruction only when Monell liability is based on a local governing body’s policy of inaction, such as a failure to train its police officers.  

            As noted in the Introductory Comment to this chapter, § 1983 liability of a local governing body may not be based on respondeat superior.  Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978).  Instead, a plaintiff must establish a “direct causal link” between the municipal policy or custom and the alleged constitutional violation.  See City of Canton v. Harris, 489 U.S. 378, 385 (1989); Sandoval v. Cnty. of San Diego, 985 F.3d 657, 681 (9th Cir. 2021). This “requires showing both but for and proximate causation.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). In Harper, the Ninth Circuit approved of a jury instruction that explained that “proximate cause exists where ‘an act or omission played a substantial part in bringing about or actually causing the injury or damage to plaintiffs.’” Harper, 533 F.3d at 1026;Puente v. City of Phoenix, 123 F.4th 1035, 1067 (9th Cir. 2024) (noting that “failure to train” claim rests on showing that the plaintiff’s injury “in particular was the obvious result of the allegedly inadequate training” and that the plaintiff failed to show that the particular constitutional injury was such an obvious consequence of “the failure to more thoroughly train its officers on the use of chemical agents that it amounted to ‘deliberate indifference’ toward her rights”) (emphasis in original).

            “A policy of inaction or omission may be based on failure to implement procedural safeguards to prevent constitutional violations.”  Tsao, 698 F.3d at 1143. A local government’s failure to train its employees “may serve as the basis for § 1983 liability . . . where the failure to train amounts to deliberate indifference to the rights of persons with whom the [employees] come into contact.” City of Canton, 489 U.S. at 388; see Connick v. Thompson, 563 U.S. 51, 61 (2011)     The elements of a failure to train Monell claim are: (1) a constitutional violation; (2) a municipal training policy that amounts to a deliberate indifference to constitutional rights; and (3) that the constitutional injury would not have resulted if the municipality properly trained their employees.  Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153-54 (9th Cir. 2021).

              “Deliberate indifference” requires proof that a municipal actor disregarded a known or obvious consequence of his action.  Connick, 563 U.S. at 61 (“[W]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program.”); see alsoCastro v. Cnty. of Los Angeles, 833 F.3d 1060, 1077 (9th Cir. 2016) (en banc)(“Where a § 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the dictates of Monell are satisfied.” (quoting City of Canton, 489 U.S. at 396))..  In Castro v. County of Los Angeles, 833 F.3d at 1076 (9th Cir. 2016) (en banc), the Ninth Circuit held that the deliberate indifference inquiry is objective for pretrial detainees’ failure-to-protect claims. “A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.”  Connick, 563 U.S. at 62; see also Hyde v. City of Willcox, 23 F.4th 863, 874-75 (9th Cir. 2022) (holding that “[w]hile deliberate indifference can be inferred from a single incident when the unconstitutional consequences of failing to train are patently obvious, an inadequate training policy itself cannot be inferred from a single incident.”) (quotation marks and citation omitted); Flores v. County of Los Angeles, 758 F.3d 1154, 1159-60 (9th Cir. 2014) (holding that, absent pattern of sexual assaults by deputies, alleged failure to train officers not to commit sexual assault did not constitute deliberate indifference); Marsh v. County of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012) (holding that practice must be “widespread” and proof of single inadequately-trained employee was insufficient); Doughtery v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (“Mere negligence in training or supervision … does not give rise to a Monell claim.”). 

However, the Supreme Court has “left open the possibility that, ‘in a narrow range of circumstances,’ a pattern of similar violations might not be necessary to show deliberate indifference,” using the hypothetical of a case in which an officer was provided firearms but given no training on the constitutional limits on the use of deadly force.  Connick, 563 U.S. at 63-64 (quotingBd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997), and citing Canton, 489 U.S. at 389-90).  In Kirkpatrick v. Washoe County, 843 F.3d 784 (9th Cir. 2016) (en banc), the Ninth Circuit held that a county social services agency’s complete failure to train its social workers on the procedures for obtaining a warrant and when a warrant is required before taking a child from a parent was just such a “narrow circumstance” in which evidence of a pattern of similar violations was unnecessary.  See id. at 796-97.  In Sandoval v. County of San Diego, 985 F.3d 657, 682 (9th Cir. 2021), the Ninth Circuit applied an objective deliberate indifference standard to the county’s policy of maintaining a mixed-use cell—sometimes using the cell for medical care and other times as a general holding cell—with only an informal verbal pass-off system for notifying nurses whether the detainee in the mixed-use cell required medical supervision. The court held that the standard “requires a showing that the facts available to the county put it on ‘actual or constructive notice’ that its practices with regard to [the mixed-use] cell were ‘substantially certain to result in the violation of the constitutional rights of [its] citizens.’” Id. (footnote omitted) (quoting Castro, 833 F.3d at 1076). 

If the plaintiff is alleging inadequate hiring or screening of employees, inadequate supervision, or failure to adopt a needed policy, elements 3 through 5 of this instruction should be modified accordingly.  See Brown, 520 U.S. at 409-11 (addressing failure to screen candidates); Jackson v. Barnes, 749 F.3d 755, 763-64 (9th Cir. 2014) (addressing failure to supervise), cert. denied, 135 S. Ct. 980 (2015); Tsao, 698 F.3d at 1143 (addressing failure to implement policy).  As with a failure to train claim, the plaintiff must show that the failure to properly hire, supervise, or adopt a policy amounted to deliberate indifference by the governing body.  See, e.g., Brown, 520 U.S. at 407; Tsao, 698 F.3d at 1143, 1145.  For other bases of Monell liability, see Instructions 9.5 (Section 1983 Claim Against Local Governing Body Defendants Based on Official Policy, Practice, or Custom that Violates Law or Directs Employee to Violate Law—Elements and Burden of Proof), 9.6 (Section 1983 Claim Against Local Governing Body Defendants Based on Act of Final Policymaker—Elements and Burden of Proof), and 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof).

In Bell v. Williams, 108 F.4th 809 (9th Cir. 2024), the Ninth Circuit reiterated that, under Monell, a plaintiff “must show a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” Id. at 824. The court added: “One way of doing so is by showing that the municipality demonstrated deliberate indifference to constitutional rights when it trained its employees. This requires proof that a municipal actor disregarded a known or obvious consequence of his action.” Id. Where “the training program for jail officers . . . covered the relevant topics with reasonable specificity,” the program “does not demonstrate deliberate indifference to a known risk” for purposes of Monell liability even if there are “narrow gaps” in the training. Id. at 825-26. 

 

Revised March 2025

              As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution.  In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].  

             Under the First Amendment, a public employee has a qualified right to speak on matters of public concern.  I instruct you that the plaintiff's the speech was on a matter of public concern.  In order to prove the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:

              1.         the plaintiff spoke as a private citizen and not as part of [his] [her] official duties as a
                          public employee;

              2.         the defendant took an adverse employment action against the plaintiff; and

              3.         the plaintiff’s speech was a substantial or motivating factor for the adverse employment action.

              An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from engaging in protected activity.

              A substantial or motivating factor is a significant factor, though not necessarily the only factor. 

             If the plaintiff establishes each of the foregoing elements, the burden shifts to the defendant to prove by a preponderance of the evidence that the defendant would have taken the action(s) in question, even in the absence of any motive to retaliate against the plaintiff.  If you find that the defendant is able to demonstrate this, you must find for the defendant.  If you find that the defendant is not able to demonstrate this, you must find for the plaintiff.  

Comment 

            Use this instruction only in conjunction with the applicable elements instruction, Instructions 9.3–9.8, and when the plaintiff is a public employee.  Use Instruction 9.11 (Particular Rights—First Amendment—“Citizen” Plaintiff) when the plaintiff is a private citizen.  Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act in order to avoid any risk of misstating the law.  See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir. 2009).  If there is a dispute about whether the public employee was speaking as a private citizen, use Instruction 9.10 (Particular Rights—First Amendment—Public Employees—Speaking as a Private Citizen).

              As to whether a public employee’s speech is protected under the First Amendment, the Supreme Court has “made clear that public employees do not surrender all their First Amendment rights by reason of their employment.  Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”  Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see also Borough of Duryea v. Guarnieri, 564 U.S. 379, 398 (2011) (applying Garcetti public concern test to public employee’s First Amendment Petition Clause claims).

              In Hernandez v. City of Phoenix, 43 F.4th 966, 976 (9th Cir. 2022), the Ninth Circuit reiterated the “five sequential steps to analyze First Amendment retaliation claims brought by government employees:” :  

(1) [W]hether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.                                                              

Id. (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)); see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 276 (1977); Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968); see also Dodge v. Evergreen Sch. Dist. #114, 56 F.4th 767, 776-77 (9th Cir. 2022) (setting forth legal standard for public employee First Amendment retaliation claims); Riley’s Am. Heritage Farms v. Elsasser, 32 F.4th 707, 721 (9th Cir. 2022) (same).

              Under the framework above, the government employee bears the burden of proving the first three steps of the test.  See Moser v. Las Vegas Metro. Police Dep't, 984 F.3d 900, 904 (9th Cir. 2021).  If the employee succeeds in making that threshold showing, the burden then shifts to the government to prove steps four and five.  See id.; Ohlson v. Brady, 9 F.4th 1156, 1162 (9th Cir. 2021); see also Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 531 (2022) (discussing the burden shifting framework of the Pickering-Garcetti analysis).           

              The “public concern inquiry is purely a question of law,” Eng, 552 F.3d at 1070, that depends on the “content, form, and context of a given statement, as revealed by the whole record.”  Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d 900, 905 (9th Cir. 2021) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)))); see also Adams v. County of Sacramento, 116 F.4th 1004 (9th Cir. 2024) (holding that private text exchange related to offensive images did not involve a matter of public concern).

             In Garcetti, the Supreme Court held“that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”  547 U.S. at 421-22.  The Supreme Court, however, limited its ruling in two respects.  First, in an explicit effort to avoid having its holding serve as an invitation for employers to restrict employees’ rights “by creating excessively broad job descriptions,” the Court noted that “the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.”  Id. at 424-25.  Second, the Court recognized that 

[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence … [F]or that reason [we] do not[] decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching. 

 Id. at 425. 

             In Demers v. Austin, 746 F.3d 402, 406 (9th Cir. 2014), however, the Ninth Circuit answered the latter question and held that “Garcetti does not apply to ‘speech related to scholarship or teaching.’”  Rather, the Ninth Circuit held that such speech is governed by Pickering v. Board of Education, 391 U.S. 563 (1968) (considering speech by public school teacher critical of school board).  Id.  The Demers court went on to conclude that a state university professor’s plan for changes in his department addressed a matter of public concern under Pickering.  Id. at 414-17.  By contrast, in Kennedy v. Bremerton School District, the Supreme Court held that a football coach spoke not as a public employee, but as a private citizen, when he decided “to persist in praying quietly without his players after three games in October 2015,” 597 U.S. 507, 525-26 (2022), which were “the three prayers that resulted in his suspension,” id. at 529. 

             The definition of “adverse employment action” in this instruction is substantially the same as that in Instruction 10.10 (Civil Rights—Title VII—“Adverse Employment Action” in Retaliation Cases).  See the Comment to that instruction for supporting authorities. 

             With respect to causation, “[i]t is clear . . . that the causation is understood to be but-for causation, without which the adverse action would not have been taken.”  Hartman v. Moore, 547 U.S. 250, 260 (2006). Thus, “upon a prima facie showing of retaliatory harm, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of (such as firing the employee).”  Id.  The Ninth Circuit has held that “a final decision maker’s wholly independent, legitimate decision to terminate an employee [can] insulate from liability a lower-level supervisor involved in the process who had a retaliatory motive to have the employee fired” when, as a matter of causation, “the termination decision was not shown to be influenced by the subordinate’s retaliatory motives.”  Lakeside-Scott v. Multnomah County, 556 F.3d 797, 799 (9th Cir. 2009); see also Greisen v. Hanken, 925 F.3d 1097, 1115-17 (9th Cir. 2019) (finding substantial evidence supported proximate causation conclusion even though plaintiff was terminated by defendant’s successor because “[defendant]’s actions were a casual factor in [the successor]’s decision”). 

              Regarding motive, the defendant’s actions must have been substantially motivated by a desire to deter or chill the employee’s speech.  Awabdy v. City of Adelanto, 368 F.3d 1062, 1071 (9th Cir. 2004); see Dodge, 56 F.4th at 781. .Defining “substantial or motivating factor” as a “significant factor” does not misstate the law.  Ostad v. Or. Health Scis. Univ., 327 F.3d 876, 884-85 (9th Cir. 2003); see also Capp v. City of San Diego, 940 F.3d 1046, 1056 (9th Cir. 2019) (explaining that retaliatory intent may still be one substantial or motivating factor for retaliatory conduct even if other, non-retaliatory reasons exist). 

             This instruction should be modified when an employee was allegedly subjected to an adverse employment action based on an employer’s erroneous belief that the employee engaged in protected speech.  In such cases, it is the employer’s motive for taking the adverse action that triggers the employee’s right to bring an action.  See Heffernan v. City of Paterson, 578 U.S. 266, 273(2016) (“When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.”). 

             This instruction also should be modified when a public employee alleges an adverse employment action based on the employee’s refusal to enter into an unconstitutional prior restraint, limiting the public employee’s right to speak as a private citizen on a matter of public concern.  See Barone v. City of Springfield, 902 F.3d 1091, 1101-06 (9th Cir. 2018).  

“Although the [Supreme] Court first applied this framework to government employees, it extended its application to retaliation cases brought by government contractors because ‘the similarities between government employees and government contractors with respect to this issue are obvious.’”  Riley’s Am. Heritage Farms, 32 F.4th at 720 (quoting Bd. of Cnty. Comm’rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 674 (1996)).  Moreover, the Ninth Circuit has extended this framework “to a range of situations where ‘the relationship between the parties is analogous to that between an employer and employee,’” including cases involving “a business vendor operating under a contract with the government for weatherization services,” “a domestic violence counselor employed by a private company that performed counseling services for a municipal court,” and “a volunteer probation officer.”  Id. at 720-21.  The Ninth Circuit has also extended this framework to a case in which a school district relied on a private company to provide educational services for public school students.  Id. at 722. 

This instruction does not apply to restrictions on the speech of elected officials because “an elected official’s speech is protected regardless [of] whether the official is speaking ‘as a citizen upon a matter of public concern.’”  See Boquist v. Courtney, 32 F.4th 764, 780 (9th Cir. 2022) (quoting Garcetti, 547 U.S. at 418).  

            After a plaintiff establishes the first three steps, he or she has made out a prima facie case, and at step four the burden shifts to the government “to show that ‘under the balancing test established by Pickering, [the government’s] legitimate administrative interests outweigh the employee’s First Amendment rights.’”  Moser v. Las Vegas Metro. Police. Dept., 984 F.3d 900, 906 (9th Cir. 2021) (quoting Eng, 552 F.3d at 1071) (holding the government failed to satisfy its step four burden because it did not produce any evidence indicating the speech at issue caused or would cause disruption).  “[T]he Pickering balancing test is a legal question, but its resolution often entails underlying factual disputes that need to be resolved by a fact-finder.”  Id. at 911 (quoting Eng, 552 F.3d at 1071). 

Revised November 2024

 

           A plaintiff speaks as a public employee when he or she makes statements pursuant to his or her official duties.  In contrast, a plaintiff speaks as a private citizen if the plaintiff had no official duty to make the statements at issue, or if the speech was not the product of performing the tasks the plaintiff was paid to perform. 

             In deciding whether a public employee was speaking as a citizen and not as part of his or her official duties, and thus whether his or her speech was constitutionally protected under the First Amendment, you may consider the following factors: 

             (1)       Did the plaintiff confine the communications to the plaintiff’s chain of command?  If so, then such speech may fall within the plaintiff’s official duties.  If not, then such speech may fall outside of the plaintiff’s official duties. 

             (2)       Was the subject matter of the communication within the plaintiff’s job duties?  If so, then such speech may fall within the plaintiff’s official duties.  If not, then such speech may fall outside of the plaintiff’s official duties. 

             (3)       Did the plaintiff speak in direct contravention to the plaintiff’s  supervisor’s orders?  If so, then such speech may fall outside of the plaintiff’s official duties.  If not, then such speech may fall within the plaintiff’s official duties. 

             (4)       Was the subject matter of the communication about broad concerns over corruption or systemic abuse beyond the specific department, agency, or office where the plaintiff worked?  If so, then such speech may fall outside of the plaintiff’s official duties.  If not, then such speech may fall within the plaintiff’s official duties. 

 Comment 

             “Speech made by public employees in their official capacity is not insulated from employer discipline by the First Amendment but speech made in their private capacity as a citizen is.”  Brandon v. Maricopa Cnty., 849 F.3d 837, 843 (9th Cir. 2017) (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)); see also Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2423 (2022) (“If a public employee speaks ‘pursuant to [his or her] official duties,’ this Court has said the Free Speech Clause generally will not shield the individual from an employer’s control and discipline . . . .”).  The Ninth Circuit has described the inquiry into whether the employee’s speech is protected as “fact-intensive” and explained that “no single formulation of factors can encompass the full set of inquiries relevant to determining the scope of a plaintiff’s job duties.”  Dahlia v. Rodriguez, 735 F.3d 1060, 1074-76 (9th Cir. 2013) (en banc); see alsoLindke v. Freed, 601 U.S. 187, 203 (2024) (noting that, in the context of analyzing whether a public official’s social media activity is speech pursuant to their official duties or in their personal capacity, the court ought to engage in a fact-specific undertaking in which each post’s “content and function are the most important considerations”).  For a discussion of “guiding principles for undertaking the practical factual inquiry,” seeBrandon, 849 F.3d at 843 (citing Dahlia, 735 F.3d at 1074-76); see also Kennedy, 142 S. Ct. at 2424 (describing Garcetti and explaining that the prosecutor’s memorandum at issue in that case was government speech because it was speech the government itself had commissioned or created and speech the employee was expected to deliver in the course of carrying out his job).  

In Kennedy v. Bremerton School District, the Supreme Court held that a public high school football coach spoke not as a public employee, but as a private citizen, when he decided “to persist in praying quietly without his players after three games in October 2015,” 142 S. Ct. at 2422 , which were “the three prayers that resulted in his suspension,” id. at 2424.  The Supreme Court explained: 
 

[The coach] did not speak pursuant to government policy.  He was not seeking to convey a government-created message.  He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach.  Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee.  

Id. (citations omitted);; see also Moonin v. Tice, 868 F.3d 853 (9th Cir. 2017) (holding prior restraint prohibiting highway patrol officers from speaking about controversial canine drug interdiction program with anyone outside of law enforcement violates First Amendment); Barone v. City of Springfield, 902 F.3d 1091, 1101-06 (9th Cir. 2018) (holding that prior restraint prohibiting police officer from speaking or writing “anything of a disparaging or negative manner related to the Department/Organization/City of Springfield or its Employees” violated First Amendment); Ohlson v. Brady, 9 F.4th 1156 (9th Cir. 2021) (concluding that forensic scientist who testified in court as part of his job duties spoke as employee rather than private citizen entitled to First Amendment protection); Dodge v. Evergreen School District, 56 F.4th 767, 778 (9th Cir. 2022) (concluding that teacher engaged in expression as private citizen entitled to First Amendment protection rather than employee when he “display[ed] a message on a personal item while attending a teacher-only training”).

On the other hand, in Linthicum v. Wagner, 94 F.4th 887 (9th Cir. 2024) the Ninth Circuit determined that senators who staged a walkout in protest of a legislative assembly and were subsequently disqualified from appearing on the next election ballot due to a prohibited number of unexcused absences were not engaging in protected speech. The panel based their reasoning on Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011), a Supreme Court case that addressed the interplay between legislative power and the First Amendment and concluded that the senators’ right to walk out was an exercise of legislative power rather than personal expressive speech. Linthicum, 94 F.4th at 893 (“No private citizen enjoys the privilege to advance or frustrate legislative action directly in the legislature . . . . The use of that power [(the walk out)] therefore implicates the governmental mechanics of the legislative process,” and Carrigan makes clear that a legislator has no right under the First Amendment to use that official power for expressive purposes.’”) (quoting Carrigan, 564 U.S. at 127)); see also Sullivan v. Univ. of Wash., 60 F.4th 574, 581-82 (9th Cir. 2023) (holding that the First Amendment right of expressive association did not protect the work of committee members individually or collectively when they were appointed to serve a public function and their work fell within the scope of their official duties on a university committee). 

 

 

Revised June 2024

            As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution.  In this case, the plaintiff alleges the defendant deprived the plaintiff of  rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].

              Under the First Amendment, a citizen has the right [to free expression] [to petition the government] [to access the courts] [other applicable right].  To establish the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:

First, the plaintiff was engaged in a constitutionally protected activity;

Second, the defendant’s actions against the plaintiff would chill a person of ordinary firmness from continuing to engage in the protected activity; and

Third, the plaintiff’s protected activity was a substantial or motivating factor in the defendant’s conduct.  

            [I instruct you that the plaintiff’s [speech in this case about [specify]] [specify conduct] was protected under the First Amendment and, therefore, the first element requires no proof.]  

            A substantial or motivating factor is a significant factor, though not necessarily the only factor. 

If the plaintiff establishes each of the foregoing elements, the burden shifts to the defendant to prove by a preponderance of the evidence that the defendant would have taken the action(s) in question, even in the absence of any motive to retaliate against the plaintiff.  If you find that the defendant is able to demonstrate this, you must find for the defendant.  If you find that the defendant is not able to demonstrate this, you must find for the plaintiff. 

Comment  

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and when the plaintiff is a private citizen.  Use Instruction 9.9 (Particular Rights—First Amendment—Public Employees—Speech) when the plaintiff is a public employee.  Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act to avoid any risk of misstating the law.  See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir. 2009). 

             Under the First Amendment to the United States Constitution, a citizen has the right to be free from governmental action taken to retaliate against the citizen’s exercise of First Amendment rights or to deter the citizen from exercising those rights in the future.  Sloman v. Tadlock, 21 F.3d 1462, 1469-70 (9th Cir. 1994).  “Although officials may constitutionally impose time, place, and manner restrictions on political expression carried out on sidewalks and median strips, they may not ‘discriminate in the regulation of expression on the basis of content of that expression.’  ‘State action designed to retaliate against, and chill political expression strikes at the very heart of the First Amendment.’”  Id. at 1469 (citations omitted).  

             However, “members of the public do not have a constitutional right to force the government to listen to their views...[a]nd the First Amendment does not compel the government to respond to speech directed toward it (citations omitted).” L.F. v. Lake Washington School District #414, 947 F.3d 621, 626 (9th Cir. 2020) (citing Minn. State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283 (1984); Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 465 (1979) (per curiam)). 

             “A plaintiff may bring a Section 1983 claim alleging that public officials, acting in their official capacity, took action with the intent to retaliate against, obstruct, or chill the plaintiff’s First Amendment rights.”  Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016). In Matsumoto v. Labrador, 122 F.4th 787, 802 (9th Cir. 2024), the court held that a pre-enforcement action brought by abortion rights advocacy organizations against the Idaho attorney general fell within an exception to Ex parte Young for the state’s Eleventh Amendment immunity, which allows “actions for prospective declaratory or injunctive relief against state officers in their official capacities” provided that the officer has “some connection with the enforcement of the act.”  The attorney general had “some connection” to the enforcement because the statute specifically granted authority to the attorney general to prosecute “abortion trafficking.” Id. “To bring a First Amendment retaliation claim, the plaintiff must allege that (1) it engaged in constitutionally protected activity; (2) the defendant’s actions would ‘chill a person of ordinary firmness’ from continuing to engage in the protected activity; and (3) the protected activity was a substantial or motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and an intent to chill speech.” Ariz. Students’ Ass’n, 824 F.3d at 867.; Sanderlin v. Dwyer, 116 F.4th 905, 910-11 (9th Cir. 2024);  Koala v. Khosla, 931 F.3d 887, 905 (9th Cir. 2019). 

             Defining “substantial or motivating factor” as a “significant factor” does not misstate the law.  Ostad v. Or. Health Scis. Univ., 327 F.3d 876, 884-85 (9th Cir. 2003); see also Capp v. City of San Diego, 940 F.3d 1046, 1056 (9th Cir. 2019) (explaining that retaliatory intent may still be one substantial or motivating factor for retaliatory conduct even if other, non-retaliatory reasons exist). And “[i]f a factfinder concludes that there was no legitimate justification for [the defendant’s] actions, they could reasonably infer that those actions were motivated by retaliatory animus.” Sanderlin, 116 F.4th at 911.  A plaintiff need not prove, however,that “his speech was actually inhibited or suppressed.”  Mendocino Env’t Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999); Ariz. Students’ Ass’n, 824 F.3d at 867.

             But see Sharp v. County of Orange, 871 F.3d 901, 919 (9th Cir. 2017) (applying but-for causation standard in summary judgment context); see also Skoog v. County of Clackamas, 469 F.3d 1221, 1231-32 (9th Cir. 2006). 

             In determining whether the First Amendment protects student speech in a public school, it is error to use the “public concern” standard applicable to actions brought by governmental employees.  Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 759 (9th Cir. 2006).  Instead, the proper standard to apply to on campus student speech is set forth in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969).  Pinard, 467 F.3d at 759; see Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594 U.S. 180, 188 (2021) (noting the Court’s priorapplications of Tinker standard as recognizing schools’ “special interest inregulating speech that ‘materially disrupts classwork or involves substantial disorderor invasion of the rights of others’” (citation omitted));see also Waln v. Dysart School District, 54 F.4th 1152, 1161-63 (9th Cir. 2022). 

             Relevant considerations into whether speech bears a sufficient nexus to the school include: (1) the degree and likelihood of harm to the school caused or augured by the speech, (2) whether it was reasonably foreseeable that the speech would reach and impact the school, and (3) the relation between the content and context of the speech and the school.”  Chen v. Albany Unified Sch. Dist., 56 F.4th 708, 720 (9th Cir. 2022); see also C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1150-52 (9th Cir. 2016); Wynar v. Douglas Cnty. Sch. Dist., 728 F. 3d. 1062, 1069 (9th Cir. 2013).  

             The Supreme Court has declined to set forth a “broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech” and, instead, set forth three features of off-campus speech that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.”  Mahanoy Area Sch. Dist v. B.L. ex rel Levy, 594 U.S. at 189 (2021).  First, “a school, in relation to off-campus speech, will rarely stand in loco parentis.”  Id. Second, regulation of off-campus speech coupled with regulation of on-campus speech, encompasses the entirety of the speech a student utters in a day.  Id. at 189-90. Third, schools must be mindful of their own interest in protecting students’ unpopular expression, particularly when that expression occurs off-campus, consistent with the role of America’s public schools as “nurseries of democracy.”  Id. at 190.

             The additional considerations articulated in Mahanoy are not inconsistent with the sufficient-nexus test articulated in McNeil. Chen, 56 F.4th at 720.Thus, the proper inquiry “must apply the McNeil sufficient-nexus test to the speech at issue. . . , keeping in mind the additional considerations identified in Mahanoy.” Id. 

             “[A] speech restriction cannot satisfy the time, place, manner test if the restriction does not contain clear standards.”  OSU Student All. v. Ray, 699 F.3d 1053, 1066 (9th Cir. 2012); see also City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 758 (1988) (“[T]he absence of express standards makes it difficult to distinguish, ‘as applied,’ between a licensor’s legitimate denial of a permit and its illegitimate abuse of censorial power. Standards provide the guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech.”).  Off-campus student speech may not be protected under the First Amendment when, based on the totality of the circumstances, the speech bears a sufficient nexus to the school.  McNeil v. Sherwood Sch. Dist. 88J, 918 F.3d 700, 707 (9th Cir. 2019).    

             For a discussion of the boundaries between First Amendment protected expression and unprotected business activity by a street performer, see Santopietro v. Howell, 857 F.3d 980 (9th Cir. 2017). 

             “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”  Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); accordChavez v. Robinson, 12 F.4th 978, 1001 (9th Cir. 2021).  The filing of a grievance or complaint, whether it be verbal or written, formal or informal, is protected conduct.. Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017). Threats to sue and/or pursue criminal charges fall within the purview of the constitutionally protected right to file grievances.  Id. at 1044. “Prisoners have a First Amendment right to receive information while incarcerated,” but this right must be balanced against a prison’s need for effective administration and reform.  Jones v. Slade, 23 F.4th 1124, 1134 (9th Cir. 2022).  Prison regulations that affect information or mailings available to inmates are reviewed pursuant to the four-factor deferential standard set forth in Turner v. Safley, 482 U.S. 78 (1987).  Id. at 1134-35 (applying Turner standard to music CDs confiscated as contraband per prison regulations); see also Prison Legal News v. Ryan, 39 F.4th 1121, 1131-35 (9th Cir. 2022) (applying Turner standard to prison rule prohibiting inmates from receiving mail containing sexually explicit material). 

            Within the context of First Amendment retaliatory arrest claims, plaintiffs “must generally ‘plead and prove the absence of probable cause,’ because the presence of probable cause generally ‘speaks to the objective reasonableness of an arrest’ and suggests that the ‘officer’s animus’ is not what caused the arrest.”  Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022) (quoting Nieves v. Bartlett, 587 U.S. 391, 400 (2019)).  However, the Supreme Court has “carved out a ‘narrow’ exception for cases where ‘officers have probable cause to make arrests, but typically exercise their discretion not to do so,’” Ballentine, 28 F.4th at 62 (quoting Nieves, 587 U.S. at 406).  In such cases, which involve offenses like jaywalking and defacing public property with chalk, “the Nieves exception only applies ‘when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.’”  Id. at 407; see also Gonzalez v. Trevino, 602 U.S. 653, 658 (2024) (reversing the Fifth Circuit’s “overly cramped view of Nieves” and explaining that to fall within the Nieves exception a plaintiff must produce objective evidence showing that in circumstances where officers have probable cause to make arrests, they “typically exercise their discretion not to do so”). 

If a plaintiff bringing a retaliatory arrest claim establishes that protected conduct was a substantial or motivating factor behind the plaintiff’s arrest, then “the defendant can prevail only by a showing that the [arrest] would have been initiated without respect to retaliation.”  Ballentine, 28 F.4th at 63 (quoting Nieves, 587 U.S. at 404, 406-07). If a plaintiff has established that the police lacked probable cause for an arrest, the plaintiff must show that the alleged 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.  Hill v. City of Fountain Valley, 70 F.4th 507, 518-19 (9th Cir. 2023) (relying on test set out in Mt. Healthy City Sch. Dist. Bd. of Educ. V. Doyle, 429 U.S. 274 (1977)). 

              This instruction properly applies to First Amendment claims concerning speech by elected officials.  See Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 2022) (citing Blair v. Bethel Sch. Dist., 608 F.3d 540, 542-43 (9th Cir. 2010)).  The first element in Instruction 9.11 “is readily met when elected officials express their views and opinions.”  Id. at 775.  However, the second element is more difficult for elected officials to establish.  Id. at 776.  This is because “the First Amendment . . . ‘doesn’t shield public figures from the give-and-take of the political process.’”  Id. (citing Blair, 608 F.3d at 543-44) (“‘more is fair in electoral politics than in other contexts’”).  To establish the second element, an elected official would have to show that the adverse action in question either (i) prevented her from doing her job, (ii) deprived her of authority she enjoyed by virtue of her popular election, or (iii) otherwise prevented her from enjoying the full range of rights and prerogatives that came with being elected.  See Id. at 777 (citing Houston Cmty. Coll. Sys. v. Wilson, 598 U.S. 468, 479 (2022); Blair, 608 F.3d at 544 & n.4). 

              For a discussion of the “commonality of political purpose” inquiry that applies to First Amendment claims made by, inter alia, an appointed volunteer in public service, see Lathus v. City of Huntington Beach, 56 F.4th 1238, 1241 (9th Cir. 2023) (quoting Walker v. City of Lakewood, 272 F.3d 1114, 1132 (9th Cir. 2001). 

              If the plaintiff establishes a prima facie case of retaliation, “the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of.”  Hartman v. Moore, 547 U.S. 250, 260 (2006).  In conducting this burden-shifting analysis, courts apply the “but-for” causation standard, under which causation is “established whenever a particular outcome would not have happened but for the purported cause.”  Boquist, 32 F.4th at 778 (quoting Bostock v. Clayton Cnty., 590 U.S. 644, 656 (2020)).  “If there is a finding that retaliation was not the but-for cause of the [adverse action], the claim fails for lack of causal connection between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in the official’s mind.”  Hartman, 547 U.S. at 260.  “Conversely, if the government officials would have taken the same adverse action even in the absence of their animus or retaliatory motive arising from the plaintiff's speech, then the officials' animus was not a but-for cause of the adverse action, and there was no violation of the plaintiff’s constitutional rights.” Boquist, 32 F.4th at 778.  If state officials can show that they had “an objectively legitimate need to implement security measures in response to information conveyed by the plaintiff’s speech, and would have implemented the same security measures in the absence of any retaliatory motive . . . any unconstitutional motivation would not be a but-for cause of the officials’ action.”  Id. 

Revised March 2025

9.11A Particular Rights—First Amendment—Convicted Prisoner/Pretrial Detainee’s Claim of Retaliation

            As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claims]. 

            Under the First Amendment, a [prisoner] [pretrial detainee] has the right to access the courts and petition the government for redress of grievances. This includes the right to [file prison grievances] [pursue civil rights litigation against prison officials] [specify particular constitutional interest]. To establish the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence: 

1.     the plaintiff was engaged in conduct protected under the First Amendment;  

2.     the defendant took adverse action against the plaintiff;  

3.     the defendant took adverse action against the plaintiff because of the plaintiff’s protected conduct;  

4.     the adverse action taken by the defendant chilled the plaintiff’s exercise of [his] [her] [other pronoun] 
        First Amendment rights; and  

5.     the action taken by the defendant did not reasonably advance a legitimate correctional goal.  

For this type of claim, adverse action is action that would chill or silence a person of ordinary firmness from engaging in that activity.  

To prevail, the plaintiff must show that [his] [her] [other pronoun] protected conduct was the substantial or motivating factor behind the defendant’s conduct. A substantial or motivating factor is a significant factor. [The chronology of events may be considered as circumstantial evidence of a causal connection between the adverse action and the plaintiff’s protected conduct.]  

Comment  

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and when the plaintiff is a convicted prisoner or a pretrial detainee.  

Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition the government may support a section 1983 claim. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (holding that labeling a prisoner a snitch in retaliation for petitioning prison and government officials for redress of grievances states a viable claim); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (holding that prison officials could not transfer an inmate to another prison in retaliation for the inmate’s exercise of his First Amendment right). “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012) (identifying same elements).  

The filing of grievances and the pursuit of civil rights litigation against prison officials are both protected activities. Rhodes, 408 F.3d at 567-68; see also Blaisdell v. Frappiea, 729 F.3d 1237, 1243 (9th Cir. 2013) (“Prisoners have the right to litigate without active interference, a guarantee that exists so prisoners have a viable mechanism to remedy prison injustices.”) (internal quotation marks, brackets, and citation omitted).  

Adverse action taken against a prisoner “need not be an independent constitutional violation. The mere threat of harm can be an adverse action.” Watison, 668 F.3d at 1114 (internal brackets and citations omitted). Adverse actions include threats of discipline, transfer, or harm and do not need to be an independent constitutional violation. Brodheim v. Cry, 584 F.3d 1262, 1269-70 (9th Cir. 2009) (holding that an inmate may prevail on a First Amendment claim against an officer where the officer threatens to transfer the inmate in retaliation for persistent use of the prison grievance system); see Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (stating that a false accusation may constitute retaliation where deprivation of a benefit “was the natural and proximate result of” the false accusation and one can infer based on the facts alleged that the accuser “intended that result”).  

To establish a retaliatory motive, an inmate “must show that his protected conduct was the substantial or motivating factor behind the defendant’s conduct.” Johnson v. Ryan, 55 F.4th 1167, 1201-02 (9th Cir. 2022) (citing Brodheim, 584 F.3d at 1271). A plaintiff may offer “either direct evidence of retaliatory motive or at least one of three general types of circumstantial evidence [of that motive].”  McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 2002)). Circumstantial evidence of motive includes:  (1) proximity in time between the protected conduct and the alleged retaliation, (2) the defendant’s expressed opposition to the conduct, or (3) other evidence that the reasons proffered by the defendant for the adverse action were false and pretextual. McCollum, 647 F.3d at 882 (citing Allen, 283 F.3d at 1077). A causal connection between the adverse action and the protected conduct can be shown by a chronology of events from which retaliation can be inferred. Watison, 668 F.3d at 1114; Pratt, 65 F.3d at 808 (“[T]iming can properly be considered as circumstantial evidence of retaliatory intent.”). Mere speculation that the defendants acted out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014).  

The plaintiff must also show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by the alleged retaliatory conduct. Rhodes, 408 F.3d at 569. The plaintiff must allege either a chilling effect on future First Amendment activities, or that he suffered some other harm that is “more than minimal.” Watison, 668 F.3d at 1114 (reversing dismissal of retaliation claim and holding that “chilling effect” pleading element was satisfied where prisoner alleged “more than minimal” harm because guard refused to serve him one breakfast in retaliation for filing an inmate grievance); Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may assert an injury no more tangible than a chilling effect on First Amendment rights.”). The plaintiff does not have to demonstrate that his speech was “actually inhibited or suppressed.” Rhodes, 408 F.3d at 569. “That the retaliatory conduct did not chill the plaintiff from suing the alleged retaliator does not defeat the retaliation claim at the motion to dismiss stage.” Watison, 668 F.3d at 1114.  

The plaintiff bears the burden of proving the absence of a legitimate correctional goal for the adverse action. Johnson, 55 F.4th at 1202 (citing Pratt, 65 F.3d at 806). With respect to this fifth factor, the Supreme Court has cautioned that “‘federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment,’ especially with regard to ‘the fine-tuning of the ordinary incidents of prison life, a common subject of prisoner claims.’” Pratt, 65 F.3d at 807 (quoting Sandin v. Conner, 515 U.S. 472, 482-83 (1995)). A plaintiff successfully pleads that the action did not reasonably advance a legitimate correctional goal by alleging, in addition to a retaliatory motive, that the defendant’s actions were “arbitrary and capricious” or that they were “unnecessary to the maintenance of order in the institution.” Watison, 668 F.3d at 1114-15. 

Added November 2024

              As previously explained, plaintiff [name] has the burden of proving that the act[s] of defendant[s] [name[s]] deprived plaintiff [name] of particular rights under the United States Constitution. In this case, plaintiff [name] alleges defendant[s] [name[s]]  deprived plaintiff [name] of rights under the Fourth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim]. 

            Under the Fourth Amendment, a person has the right to be free from an unreasonable search of [his] [her] [person] [residence] [vehicle] [other object of search]. To prove defendant[s] [name[s]] deprived plaintiff [name] of this Fourth Amendment right, plaintiff [name] must prove the following additional elements by a preponderance of the evidence:

First, [Name[s] of applicable defendant[s]] searched plaintiff [name]’s [person] [residence] [vehicle]
[other object of search];

Second, in conducting the search, [name[s]] acted intentionally; and

Third, the search was unreasonable.

            A person acts “intentionally” when the person acts with a conscious objective to engage in particular conduct. Therefore, plaintiff [name] must prove defendant [name] intended to search plaintiff [name]’s [person] [residence] [vehicle] [other object of search]. It is not enough if plaintiff [name] only proves defendant [name] acted negligently, accidentally or inadvertently in conducting the search. However, plaintiff [name] does not need to prove defendant [name] intended to violate plaintiff [name]’s Fourth Amendment rights.] 

[In determining whether the search was unreasonable, consider all of the circumstances, including: 

Comment 

            Use this instruction in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and an applicable definition of an unreasonable search, such as Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest) and Instruction 9.15 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Consent). In cases in which there is no applicable definition of unreasonableness in another instruction, consider using the second bracketed paragraph of this instruction, which sets out general principles for assessing the reasonableness of a search, derived from Bell v. Wolfish, 441 U.S. 520, 559 (1979). See also Byrd v. Maricopa Cnty. Sherriff’s Dep’t, 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc).

           “When the Government obtains information by physically intruding on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has undoubtedly occurred.”  United States v. Ngumezi, 980 F.3d 1285, 1289 (9th Cir. 2020) (quoting Florida v. Jardines, 569 U.S. 1, 5 (2013)); see also United States v. Dixon, 984 F.3d 814, 820 (9th Cir. 2020) (“[A] search occurs when the government ‘physically occup[ies] private property for the purpose of obtaining information.’” (quoting United States v. Jones, 565 U.S. 400, 404 (2012))); Jardines, 569 U.S. at 11-12 (holding government’s use of drug dog within curtilage of home used “to investigate the home and its immediate surroundings” was search within meaning of Fourth Amendment); Jones, 565 U.S. at 404 (holding installation of GPS device tracking device on underside of vehicle to monitor vehicle’s movements constitutes search within meaning of Fourth Amendment); Olson v. County of Grant, 127 F.4th 1193, 1998 (9th Cir. 2025) (holding that the county attorney’s review, without consent, without a warrant, and without suspicion of further criminal activity, of a cell phone extraction obtained by another state’s law enforcement agency with the plaintiff’s consent, was an unreasonable search violating the plaintiff’s Fourth Amendment rights); cf. United States v. Esqueda, 88 F.4th 818 (9th Cir. 2023) (holding that when “an officer enters a premises with express consent, and secretly uses recording equipment to capture only what he can see and hear by virtue of that consented entry, no Fourth Amendment search occurs under the trespassory, unlicensed physical intrusion framework as articulated in Jones and Jardines”).In addition to cabining physical intrusions on a constitutionally protected area, “the Fourth Amendment protects ‘certain expectations of privacy.’”  United States v. Rosenow, 50 F.4th 715, 737 (9th Cir. 2022) (quoting Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018)).  “When an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.”  Id.; see also Carpenter, 138 S. Ct. at 2220 (holding that government’s acquisition of cell-site records that provide comprehensive details of user’s past movements was search within meaning of Fourth Amendment).  For assessing a reasonable expectation of privacy in a commercial premise, see generally United States v. SDI Future Health, Inc., 568 F.3d 684, 695 (9th Cir. 2009). 

           The Fourth Amendment’s protection against unreasonable searches extends beyond criminal investigations. See Grady v. North Carolina, 575 U.S. 306, 309 (2015) (per curiam) (holding that state conducts search subject to Fourth Amendment when it attaches tracking device to recidivist sex offender’s person without consent after civil proceedings); United States v. Motley, 89 F.4th 777, 786 (9th Cir. 2023) (holding that a defendant does not have an objectively reasonable expectation of privacy in his prescription opioid records maintained in government database, given the long-standing and pervasive regulation of opioids as a controlled substance and regulatory disclosure of opioid prescription records). 

           Section 1983 “contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.” OSU Student All. v. Ray, 699 F.3d 1053, 1072 n.12 (9th Cir. 2012) (quoting Daniels v. Williams, 474 U.S. 327, 328 (1986)). It is well settled that “negligent acts do not incur constitutional liability.” Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002), abrogated on other grounds by County of Los Angeles v. Mendez, 581 U.S. 420 (2017); see Ochoa v. Pub. Consulting Grp., Inc., 48 F.4th 1102, 1110 (9th Cir. 2022) (“[T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.” (quoting Daniels, 474 U.S. at 328)). The 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. Graham v. Connor, 490 U.S. 386, 397 (1989); United States v. Reese, 2 F.3d 870, 885-86 (9th Cir. 1993); see also Reese v. County of Sacramento, 888 F.3d 1030, 1044-45 (9th Cir. 2018). 

           With respect to the Fourth Amendment, the Supreme Court has defined a seizure as “a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original); see also Nelson v. City of Davis, 685 F.3d 867, 876-77 (9th Cir. 2012) (discussing intent and concluding that defendant officers intentionally seized plaintiff under the Fourth Amendment). The Committee assumes the same intentional mental state is required to prove a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment, although there does not appear to be any Supreme Court or Ninth Circuit decision directly on point. Thus, this instruction includes an optional definition of the term “intentionally” for use when it would be helpful to the jury. 

           “Determining the reasonableness of any search involves a two-fold inquiry: first, one must consider whether the … action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.” C.B. v. City of Sonora, 769 F.3d 1005, 1023 (9th Cir.2014) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341-42 (1985)); see also Cates v. Stroud, 976 F.3d 972, 978-84 (9th Cir. 2020) (examining search of prison visitor and holding that prior to strip search, visitor must be given opportunity to leave prison); Ortega v. O’Connor, 146 F.3d 1149, 1162-64 (9th Cir. 1998) (examining search of private office); cf. Maryland v. King, 569 U.S. 435, 448 (2013) (holding that court should weigh “the promotion of legitimate governmental interests against the degree to which [the search] intrudes upon an individual’s privacy” (alteration in original) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)) (internal quotation marks omitted)). 

           “[T]o determine whether the government exceeded the scope of a warrant, we compare the terms of the warrant to the search actually conducted.” Snitko v. United States, 90 F.4th 1250, 1263 (9th Cir. 2024) (deciding that search of contents of safe deposit boxes exceeded the terms of warrant and violated the owners’ Fourth Amendment rights). 

           When a warrantless search is conducted pursuant to a condition of probation, the court may wish to consider drafting a “totality of the circumstances” instruction. See United States v. Knights, 534 U.S. 112, 118 (2001); Smith v. City of Santa Clara, 876 F.3d 987, 992 (9th Cir. 2017). Similarly, the Supreme Court has upheld suspicionless searches of parolees based on the totality of the circumstances. Samson v. California, 547 U.S. 843, 856-57 (2006). See also United States v. Payne, 99 F.4th 495, 505 (9th Cir. 2024) (“This totality of the circumstances approach is sound, especially considering that a parole search is an exception to the warrant requirement, well-situated in broader Fourth Amendment jurisprudence.”);  United States v. Cervantes, 859 F.3d 1175, 1183 (9th Cir. 2017) (“A search of a parolee that complies with the terms of a valid search condition will usually be deemed reasonable under the Fourth Amendment.”);; United States v. Dixon, 984 F.3d 814 (9th Cir. 2020) (“[B]efore [a search] condition authorizes a warrantless search, officers must have a sufficient ‘degree of knowledge’ that the search condition applies to the place or object to be searched.”).

 

. 

Revised March 2025

            In general, a search of [a person] [a person’s [residence] [property]] is unreasonable under the Fourth Amendment if the search is not authorized by a search warrant.  [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.]  Under an exception to this rule, a search warrant is not required, and a search is reasonable if the search is incident to a lawful arrest. 

            [I instruct you that the arrest of the plaintiff was a lawful arrest.]  [I instruct you that the arrest of the plaintiff was a lawful arrest if [insert applicable legal standard; i.e., insert elements to show probable cause to arrest for a particular crime]]. 

            A search is “incident to” a lawful arrest if: 

             1.         it occurs roughly contemporaneously with the arrest, that is, at the same time or shortly after the arrest and without any intervening events separating the search from the arrest; and 

             2.         it is limited to a reasonable search of the person arrested and to the immediate area within which that person might gain possession of a weapon or might destroy or hide evidence at the time of the search. 

             In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply; that is, that the search was not incident to a lawful arrest. 

 Comment 

             Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8 and in conjunction with Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally).  When the search incident to arrest involves a vehicle, refer to Instruction 9.14 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search of Vehicle Incident to Arrest of a Recent Occupant). 

             “A search incident to a lawful arrest is an exception to the general rule that warrantless searches violate the Fourth Amendment.”  United States v. Camou, 773 F.3d 932, 937 (9th Cir. 2014); see Arizona v. Gant, 556 U.S. 332, 338 (2009).  There are two general requirements of a valid search incident to an arrest.  Camou, 773 F.3d at 937-38 (“The determination of the validity of a search incident to arrest in this circuit is a two-fold inquiry: (1) was the searched item ‘within the arrestee’s immediate control when he was arrested’; [and] (2) did ‘events occurring after the arrest but before the search ma[k]e the search unreasonable’?” (second alteration in original) (quoting United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir. 2010)). 

             The first requirement is that the search must be “limited to the arrestee’s person or areas in the arrestee’s ‘immediate control’ at the time of arrest.”  Id. at 937 (quoting Gant, 556 U.S. at 339).  “Immediate control” means “the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.”  Gant, 556 U.S. at 335 (quoting Chimel v. California, 395 U.S. 752, 763 (1969)).  “Those areas include the arrestee’s person and the inside pockets of the arrestee’s clothing.”  United States v. Williams, 846 F.3d 303, 312 (9th Cir. 2016) (citing United States v. Robinson, 414 U.S. 218, 224-25 (1973)).  But those areas do not “extend to ‘a strip search or bodily intrusion.’”  Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991) (quoting Giles v. Ackerman, 746 F.2d 614, 616 (9th Cir. 1984)). 

             The second requirement is that the search must be “spatially and temporally incident to the arrest,” and, to satisfy the temporal requirement, must be “roughly contemporaneous with the arrest.”  Camou, 773 F.3d at 937 (quoting United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004) (per curiam)) (holding border patrol agent’s search of arrestee’s cell phone 80 minutes after arrest not roughly contemporaneous with arrest).  A search remote in time or place from the arrest is not justified.  Id. (quoting United States v. Chadwick, 433 U.S. 1, 15 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 580 (1991)).  Further, “[m]ere temporal or spatial proximity of the search to the arrest does not justify a search; some threat or exigency must be present to justify the delay.”  Maddox, 614 F.3d at 1049 (holding that after arrestee was secured in patrol car, search of keychain that was within arrestee’s “immediate control” at the time of the arrest but subsequently tossed into arrestee’s car was invalid under search-incident-to-arrest exception because, at the time of the search, arrestee was “incapable of either destroying [the keychain] or presenting any threat to the arresting officer”). 

             An actual arrest is a prerequisite for this exception to the warrant requirement.  Menotti v. City of Seattle, 409 F.3d 1113, 1153 (9th Cir. 2005) (holding probable cause to make arrest insufficient to trigger exception in absence of actual arrest). 

             If the court is able to determine as a matter of law that an arrest was lawful, the Committee recommends the court instruct the jury accordingly.  However, when there are factual disputes about the lawfulness of an arrest, it will be necessary for the court to instruct the jury concerning the standards or elements for a lawful arrest under the facts of a particular case.  See Instruction 9.23 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Probable Cause Arrest). 

             The United States Supreme Court has held that officers may perform a warrantless breath test as a search incident to arrest, but may not perform a warrantless blood test as a search incident to arrest.  Birchfield v. North Dakota, 579 U.S. 438, 474 (2016). The Court held that a breath test incident to a drunk driving arrest is categorically included within the search-incident-to-arrest exception.  Id. at 2176, 2179-80, 2183.           

            In Riley v. California, 573 U.S. 373 (2014), the Court considered the search-incident-to-arrest exception as it pertained to cell phones.  The Court held that the phone itself may be searched incident to an arrest, but officers must generally secure a search warrant before conducting a search of the data stored on the cell phone.  Id. at 401, 403; Olson v. County of Grant, 127 F.4th 1193, 1999 (9th Cir. 2025) (extending Riley to a phone extraction or a “phone dump” which is typically an exact replica of the data contained on a cell phone at the time of the extraction, easily searchable and reviewable by law enforcement); but see United States v. Payne, 99 F.4th 495, 507 (9th Cir. 2024) (declining to extend Riley to cell phone data belonging to parolees).             

A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply.  Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994);  see Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship);  Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”).           

Revised March 2025

            In general, a search of a person’s vehicle is unreasonable under the Fourth Amendment if the search is not authorized by a search warrant.  [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.]  Under an exception to this rule, a search warrant is not required, and a search is reasonable if the search of the vehicle is incident to a lawful arrest. 

            [I instruct you that the arrest of the plaintiff was a lawful arrest.] [I instruct you that the arrest of the plaintiff was a lawful arrest if [insert applicable legal standard, i.e., insert elements to show probable cause to arrest for a particular crime]]. 

            A search of a vehicle [specify area searched] is “incident to” the arrest of a recent occupant of the vehicle only if: 

1.         The person is arrested but is not securely in police custody and the [specify area searched] is “within the reaching distance” of the person arrested; or

 

2.         It is reasonable to believe the vehicle contains evidence of the offense that is the subject of the arrest. 

            In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply— that is, that the search of the vehicle was not incident to a lawful arrest. 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and in conjunction with Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally). 

            “A search incident to a lawful arrest is an exception to the general rule that warrantless searches violate the Fourth Amendment.”  United States v. Camou, 773 F.3d 932, 937 (9th Cir. 2014); see Arizona v. Gant, 556 U.S. 332, 338 (2009).  For a discussion of the search incident to a lawful arrest exception generally, see Comment to Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest).

             In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court held that an officer can search the passenger compartment of a vehicle when the officer has made a lawful custodial arrest of its recent occupant, so long as the passenger compartment of the vehicle is within reaching distance of the arrestee.  Id. at 460 (holding also that the officer may search containers in the passenger compartment because “if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach”).

            In Arizona v. Gant, 556 U.S. 332, 335 (2009), the Supreme Court narrowed the search-incident-to-arrest exception as applied to vehicle searches in Belton.  Id. at 335.  Gant held that a warrantless search of a vehicle, incident to the arrest of a driver or recent occupant, is constitutionally permissible only if: (1) the arrestee is within reaching distance of the passenger compartment at the time of the search, or (2) it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Id. at 351.  Thus, when the arrestee is secured by police, and there is no reason to believe the vehicle contains relevant evidence, officers may not rely on the search-incident-to-arrest exception to justify the search of a vehicle.  Id. at 335 (“Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.”).

             If the court is able to determine as a matter of law that an arrest was lawful, the Committee recommends the court instruct the jury accordingly.  When, however, there are factual disputes about the lawfulness of an arrest, it will be necessary for the court to instruct the jury concerning the standards or elements for a lawful arrest under the facts of a particular case. See Instruction 9.23 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Probable Cause Arrest).  The plaintiff may not always be the same person who was the subject of the arrest giving rise to the search.  See e.g., Rakas v. Illinois, 439 U.S. 128, 134 (1978).  In such cases, the instruction should be altered as appropriate.

             A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply.  Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994);  see Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship);  Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”). 

            Revised Dec. 2023

            In general, a search of a [person] [residence] [vehicle] [property] is unreasonable under the Fourth Amendment if the search is not authorized by a search warrant.  [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.] Under an exception to this rule, a search warrant is not required, and a search is reasonable if [the person] [a person in lawful possession of the area to be searched] knowingly and voluntarily consents to the search [and there is not any express refusal to consent by another person who is physically present and also in lawful possession of the area to be searched]. 

            In determining whether a consent to search is voluntary, consider all of the circumstances, including: 

(1)       whether the consenting person was in custody; 

(2)       whether the officers’ guns were drawn; 

(3)       whether Miranda warnings were given; 

(4)       whether the consenting person was told [he] [she] had the right to refuse a request to search; 

(5)       whether the consenting person was told a search warrant could be obtained; 

(6)       [any other circumstances applicable to the particular case]. 

            Miranda warnings consist of advising a criminal suspect that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. 

            In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply. 

 Comment 

             Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8 and in conjunction with Instruction 9.12 (Particular Rights—Fourth Amendment —Unreasonable Search—Generally). 

             It is a well-settled exception to the warrant requirement that an “individual may waive his Fourth Amendment rights by giving voluntary and intelligent consent to a warrantless search of his person, property, or premises.”  United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir. 2000); seealso Ohio v. Robinette, 519 U.S. 33, 39-40 (1996).  Whether a consent to search was voluntarily given is a question of fact to be determined from the “totality of all the circumstances.” United States v. Taylor, 60 F.4th 1233, 1243 (9th Cir. 2023) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).  The Ninth Circuit considers five factors in determining voluntariness, which have been incorporated into the above instruction. See, e.g., Liberal v. Estrada, 632 F.3d 1064, 1082 (9th Cir. 2011) (applying five-factor test for voluntariness in § 1983 case).  “No one factor is determinative in the equation” and “[b]ecause each factual situation surrounding consent to a search is unique,” a court may also consider other relevant factors. Id.;United States v. Taylor, 60 F.4th 1233, 1243 (9th Cir. 2023) (rejecting argument that “racial disparities in the policing of America” invalidated consent, court noted tensions between officers and suspects “may be heightened by personal experiences and other sociocultural factors,” but there was no evidence in this case that race affected voluntariness of consent); Olson v. County of Grant, 127 F.4th 1193, 1200 (9th Cir. 2025) (holding that a plaintiff’s consent allowing Idaho law enforcement to search plaintiff’s cell phone did not extend to a search by a different law enforcement agency, in Oregon, for evidence of her boyfriend’s theoretical misdeeds in Oregon). 

             In Georgia v. Randolph, 547 U.S. 103, 106 (2006),  the Supreme Court reiterated this rule:  “The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.”  The Court, however, also held that, as between a wife’s consent to a search of the family residence and her husband’s refusal to consent, “a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.”  Id.; see also Bonivert v. City of Clarkston, 883 F.3d 865, 875 (9th Cir. 2018) (“Applying Randolph, we hold that the consent exception to the warrant requirement did not justify the officers’ entry into Bonivert’s home.  Even though the officers secured [co-occupant] Ausman’s consent, Bonivert was physically present inside and expressly refused to permit the officers to enter on two different occasions” (emphasis added)).  The Ninth Circuit clarified that “Randolph requires that the resident who is refusing consent both be present at the house and expressly refuse to allow the search.”  United States v. Moore, 770 F.3d 809, 811 (9th Cir. 2014).  In addition, the Supreme Court has clarified that Randolph does not apply when the objecting occupant has been removed and is no longer physically present, including removal through a lawful arrest.  Fernandez v. California, 571 U.S. 292, 302-03 (2014) (upholding warrantless search of apartment when consent later obtained from co-occupant after initially objecting occupant arrested on suspicion of assaulting co-occupant); United States v. Parkins, 92 F.4th 882, 890-91 (9th Cir. 2024) (explaining that a defendant need not stand at the doorway to count as being physically present—presence on the premises (including its immediate vicinity) is sufficient); see also United States v. Brown, 563 F.3d 410, 416-18 (9th Cir. 2009) (finding voluntary consent from co-occupant of residence when defendant had been arrested pursuant to valid arrest warrant and placed in squad car prior to consent discussion with co-occupant).  

             Randolph’s exception to the consent rule for third parties does not apply when the “consent” consists of a probationer’s search condition. That scenario requires an examination of whether a warrantless search “was reasonable under the Court’s general Fourth Amendment approach of ‘examining the totality of the circumstances,’ with the probation search condition being a salient circumstance.”  Smith v. City of Santa Clara, 876 F.3d 987, 992 (9th Cir. 2017) (internal quotation marks and brackets omitted) (quoting United States v. Knights, 534 U.S. 112, 118 (2001) (rejecting jury instruction framed in terms of consent based on warrantless probation search condition)). 

             Whether an individual was told he or she was “free to leave” may implicate both the first factor—whether the individual was in custody—and the fourth factor—whether he or she was informed he or she could refuse consent.  See, e.g., United States v. Russell, 664 F.3d 1279, 1281 (9th Cir. 2012) (noting that officer’s instruction that individual is free to leave is “an instructive, but certainly less clear, way of saying that consent could be refused”); United States v. Bassignani, 575 F.3d 879, 886 (9th Cir. 2009) (noting that officer’s instruction that individual is free to leave is important consideration in determining whether individual is in custody); but see United States v. Stephens, 206 F.3d 914, 917 (9th Cir. 2000) (noting that, when searching bus passengers, “free to leave” warning is inadequate to ensure voluntariness). 

             Under certain circumstances, a third party may have actual or apparent authority to give consent to the search of another’s property.  Espinosa v. City & Cnty. of San Francisco, 598 F.3d 528, 536 (9th Cir. 2010) (citing United States v. Ruiz, 428 F.3d 877, 880-81 (9th Cir. 2005)) (stating three-part test to determine apparent authority of third person).  When authority to consent is factually disputed, it may be necessary to instruct the jury on these standards. 

             Relatedly, the “knock and talk” exception, which allows officers to approach a home and knock on the door, does not apply when the officers’ purpose in conducting the “knock and talk” is to arrest the occupant.  United States v. Lundin, 817 F.3d 1151, 1160 (9th Cir. 2016). 

             A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply.  Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994);  see Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship);  Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”). 

             When “an officer enters a premises with express consent, and secretly uses recording equipment to capture only what he can see and hear by virtue of that consented entry, no Fourth Amendment search occurs under the trespassory, unlicensed physical intrusion framework.” United States v. Esqueda,88 F.4th 818 (9th Cir. 2023). Although no search occurs when an undercover government agent misrepresents his identity to gain consent to enter, id. at 825, 830, a Fourth Amendment search does occur when “a known government agent affirmatively misrepresents his purpose to gain consent to enter,” id. at 826 n.4 (emphasis in original) (citing Whalen v. McMullen, 907 F.3d 1139, 1147-48 (9th Cir. 2018)).

Revised March 2025

           In general, a search of a [person] [residence] [vehicle] [property] is unreasonable under the Fourth Amendment if the search is not conducted pursuant to a search warrant.  [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.]  Under an exception to this rule, a search warrant is not required, and a search is reasonable if: 

1.         all of the circumstances known to the officer[s] at the time of the entry or the search would cause a reasonable person to believe that the entry or the search of the [person] [residence] [vehicle] [property] was necessary to prevent [destruction of evidence] [escape of a suspect] [physical harm to the officers or other persons] or [some other consequence improperly frustrating legitimate law enforcement efforts];  

2.         at the time the officer made the entry or the search, the officer had probable cause to believe that a crime had been or was being committed; and 

3.         there was insufficient time to get a search warrant.  

            “Probable cause” exists when, under all of the circumstances known to the officer[s] at the time, an objectively reasonable police officer would conclude there is a fair probability that the plaintiff has committed or was committing a crime. 

            In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply. 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8 and in conjunction with Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally). 

            It is a well-settled exception to the warrant requirement that “exigent circumstances” can justify a warrantless search consistent with the Fourth Amendment.  See Missouri v. McNeely, 569 U.S. 141, 148-49 (2013) (discussing various “circumstances [that] may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of a home, engage in ‘hot pursuit’ of a fleeing suspect, or enter a burning building to put out a fire and investigate its cause” (citations omitted)); see also Fisher v. City of San Jose, 558 F.3d 1069, 1076-78 (9th Cir. 2009) (en banc) (discussing exigent circumstances exception to warrant requirement in context of hours-long police standoff) This exception has two requirements: “(1) that the officer had probable cause to search or arrest; and (2) that exigent circumstances justified the warrantless intrusion.”  Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1221 (9th Cir. 2014), rev’d in part on other grounds, 575 U.S. 600 (2015) (citing Hopkins v. Bonvicino, 573 F.3d 752, 766-67 (9th Cir. 2009)).  The Ninth Circuit generally defines “exigent circumstances as those circumstances that would cause a reasonable person to believe that entry . . . was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.”  United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005). 

             However, officers cannot create the exigency themselves by engaging in conduct that violates the Fourth Amendment.  See United States v. Lundin, 817 F.3d 1151, 1158 (9th Cir. 2016) (citing Kentucky v. King, 563 U.S. 452, 462 (2011)) (holding that officers unlawfully created exigency when (1) their knock caused suspect to make crashing noises inside home that were basis for exigency, and (2) officers were unlawfully standing on curtilage of suspect’s home because it was three a.m. and their only purpose was to arrest defendant). 

             The Ninth Circuit has explained that the exigency exception “stems from police officers’ investigatory function [and] allows an officer to enter a residence without a warrant if he has probable cause to believe that a crime has been or is being committed and a reasonable belief that [his] entry is needed to stop the destruction of evidence or a suspect’s escape or carry out other crime-prevention or law enforcement efforts.”  Espinosa v. City & County of San Francisco, 598 F.3d 528, 534 (9th Cir. 2010) (second alteration in original) (quoting Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009) (internal quotation marks omitted)).  Furthermore, whether a law enforcement officer faced an exigency “must be viewed from the totality of the circumstances known to the officers at the time of the warrantless intrusion.” Id. at 535 (quoting United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985)); seeMcNeely, 569 U.S. at 149 (“To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances.”). 

             The exigency exception may of course be invoked when police are in hot pursuit of a fleeing suspect. SeeMcNeely, 569 U.S. at 149; Fisher, 558 F.3d at 1082.  It should also be noted, however, that exigent circumstances will rarely justify entry without a warrant while in hot pursuit of a fleeing misdemeanant.  See Stanton v. Sims, 134 S. Ct. 3, 6-7, 9 (2013) (finding officer entitled to qualified immunity, yet emphasizing that prior Court precedent “held not that warrantless entry to arrest a misdemeanant is never justified, but only that such entry should be rare”); see also Lange v. California, 141 S. Ct. 2011, 2020 (2021) (“This Court has held that when a minor offense alone is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry.”). 

             The Supreme Court has also ruled that the natural dissipation of alcohol in the blood does not establish a per se exigency, and that “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.”  McNeely, 569 U.S. at 156; cf. Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest). 

             Whether officers rely upon the emergency aid or exigent circumstances exceptions to the Fourth Amendment’s general warrant requirement, they are required to conduct the search or seizure in a reasonable manner, including use of reasonable force.  Sheehan, 743 F.3d at 1222 (applying Supreme Court’s excessive force standard under Fourth Amendment to both emergency aid and exigency exceptions).  To assess whether the force used was reasonable, see Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force). 

             A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply.  Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994);  see Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship);  Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”). 

Revised Dec. 2023

            In general, a search of a [person] [residence] [vehicle] [property] is unreasonable under the Fourth Amendment if the search is not conducted pursuant to a search warrant.  [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.]  Under an exception to this rule, a search warrant is not required, and a search is reasonable if, under all of the circumstances: 

1.         the police officer[s] had objectively reasonable grounds at the time of the entry or the search to believe that there was an emergency at hand and there was an immediate need to protect others or themselves from serious harm; and 

2.         the search’s scope and manner were reasonable to meet the need. 

            In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply. 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8. 

            The Supreme Court has consistently recognized an emergency aid exception to the warrant requirement, which allows law enforcement officers to “enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”  United States v. Snipe, 515 F.3d 947, 951 (9th Cir. 2008) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)); see also Bonivert v. City of Clarkston, 883 F.3d 865, 877 (9th Cir. 2018) (noting that “the emergency exception is ‘narrow’ and ‘rigorously guarded’”).  

            The emergency doctrine recognizes that police function as community caretakers in addition to their roles as criminal investigators and law enforcers.  Espinosa v. City & County of San Francisco, 598 F.3d 528, 534 (9th Cir. 2010).   

            As the Ninth Circuit has clarified, this exception has two requirements: “(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search’s scope and manner were reasonable to meet the need.”  Sheehan v. City & County of San Francisco, 743 F.3d 1211, 1221 (9th Cir. 2014), rev’d in part on other grounds, 575 U.S. 600 (2015) (quoting Snipe, 515 F.3d at 952); see also Hopkins v. Bonvicino, 573 F.3d 752, 763-66 (9th Cir. 2009) (explaining difference between emergency and related exigency exceptions).

             Whether officers rely on the emergency aid or exigent circumstances exception to the Fourth Amendment’s general warrant requirement, they are required to conduct the search or seizure in a reasonable manner, including use of reasonable force.  Sheehan, 743 F.3d at 1222 (applying Supreme Court’s excessive force standard under Fourth Amendment to both emergency aid and exigency exceptions). To assess whether the force used was reasonable, see Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force). 

            A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply.  Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994);  see Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship);  Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”).

Revised Dec. 2023

            As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant[s] [insert name[s] of defendant[s]] deprived the plaintiff of particular rights under the United States Constitution.  In this case, the plaintiff alleges the defendant[s] deprived the plaintiff of rights under the Fourth Amendment to the Constitution when the defendant[s] intentionally or in reckless disregard of the truth made one or more material misrepresentations or omissions in a search warrant affidavit submitted to a judge. 

            Under the Fourth Amendment, a person has the right to be free from an unreasonable search of [the person's  [person] [residence] [vehicle] [insert other object of search].  In general, a search of a [person] [residence] [vehicle] [insert other object of search] is unreasonable under the Fourth Amendment if the search is not conducted pursuant to a search warrant.  A search warrant is a written order signed by a judge that permits a law enforcement officer to search a particular location and seize specific items.  To obtain a search warrant, a law enforcement officer must show probable cause that a crime has been committed and that items related to that crime are likely to be found in the place specified in the warrant. In deciding whether to issue a search warrant, a judge generally relies on the facts stated in a warrant affidavit signed by a law enforcement officer. 

            To prove the defendant[s] deprived the plaintiff of this Fourth Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence: 

1.         the defendant[s] submitted to a judge a warrant affidavit that contained one or more misrepresentations or omissions material to the finding of probable cause; and 

2.         the defendant[s] made those misrepresentations or omissions either intentionally or with reckless disregard for the truth. 

            To show materiality in the context of this claim, the plaintiff must demonstrate that the judge would not have issued the warrant if the false information had been excluded (or redacted) or if the omitted or missing information had been included (or restored).

            “Probable cause” exists when, under all of the circumstances known to the officers at the time, an objectively reasonable police officer would conclude there is a fair probability that contraband or evidence of a crime will be found in the place to be searched; a fair probability that the item to be seized is contraband or evidence of a crime; or a fair probability that the person to be seized has committed or was committing a crime. 

            In the context of this claim, a “reckless disregard for the truth” means highly unreasonable conduct that is an extreme departure from ordinary care, presenting a danger of misleading a reasonable judge into concluding that probable cause has been established, when that danger is either known to the defendant[s] or is so obvious that the defendant[s] must have been aware of it. 

Comment 

            Use this instruction only in conjunction with the applicable elements instruction from Instructions 9.3–9.8.

             See Bravo v. City of Santa Maria, 665 F.3d 1076, 1083-84 (9th Cir. 2011) (stating elements of civil rights claim based on judicial deception in procuring search warrant); Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011) (discussing false arrest claim based on judicial deception in procuring arrest warrant and also discussing materiality requirement); Blight v. City of Manteca, 944 F.3d 1061, 1069 (9th Cir. 2019) (stating elements of judicial deception claim including materiality requirement).

 

Revised Dec. 2023

           As previously explained, plaintiff [name] has the burden of proving that the act[s] of  defendant[s] [name[s]] deprived plaintiff [name]of particular rights under the United States Constitution.  In this case, plaintiff [name] alleges defendant [name] deprived plaintiff [name] of rights under the Fourth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim]. 

            Under the Fourth Amendment, a person has the right to be free from an unreasonable seizure of the person’s property.  In order to prove defendant[s] [name[s]] deprived the plaintiff of this Fourth Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:
 

1.         [name[s] of applicable defendant[s]] seized plaintiff [name]’s property;
 

2.         in seizing the plaintiff’s property, [names of same person[s]] acted intentionally; and
 

            3.         the seizure was unreasonable. 

            A person “seizes” the property of plaintiff [name] when the person takes possession of or controls the property in a manner that meaningfully interferes with plaintiff [name]’s right to possess the property. 

            [A person acts “intentionally” when the person acts with a conscious objective to engage in particular conduct.  Therefore, plaintiff [name] must prove that defendant [name] intended to [insert the factual basis for the plaintiff’s claim].  It is not enough to prove that defendant [name] negligently or accidentally engaged in that action.  But while plaintiff [name] must prove that defendant [name] intended to act, plaintiff [name]need not prove that defendant [name] intended to violate plaintiff [name]’s Fourth Amendment rights.].] 

            [A seizure done pursuant to a search warrant is “unreasonable” if the search conducted exceeds the terms of the warrant.] 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and with an appropriate definition of an unreasonable seizure.  See Instruction 9.19 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Property—Exceptions to Warrant Requirement). 

            “A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.”  Lavan v. City of Los Angeles, 693 F.3d 1022, 1027, 1030-33 (9th Cir. 2012) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)) (recognizing homeless person’s possessory interest in unabandoned property left temporarily unattended, even if person, who was in violation of city ordinance prohibiting leaving of any personal property on public sidewalk, could not be said to have had expectation of privacy); see United States v. Baker, 58 F.4th 1109, 1116 (9th Cir. 2023); see alsoPatel v. City of Los Angeles., 738 F.3d 1058, 1061-62 (9th Cir. 2013) (en banc) (citing Florida v. Jardines, 569 U.S. 1, 12-13 (2013)) (Kagan, J., concurring)) (recognizing hotel’s property and privacy interest in guest records “are more than sufficient to trigger Fourth Amendment protection”). Snitko v. United States, 90 F.4th 1250, 1263 (9th Cir. 2024) ( “[T]o determine whether the government exceeded the scope of a warrant, we compare the terms of the warrant to the search actually conducted.”).  

“The destruction of property has long been recognized as a seizure.”  Garcia v. City of Los Angeles, 11 F.4th 1113, 1118 (9th Cir. 2021) (citing Jacobsen, 466 U.S. at 124–25). 

A seizure lawful at its inception can nevertheless violate the Fourth Amendment if its manner of execution unreasonably infringes possessory interests.  Brewster v. Beck, 859 F.3d 1194, 1196-97 (9th Cir. 2017) (“The Fourth Amendment doesn’t become irrelevant once an initial seizure has run its course.”); see also Sandoval v. Cnty. of Sonoma, 912 F.3d 509, 516 (9th Cir. 2018) (holding that community caretaking exception to warrant requirement does not categorically permit government officials to retain impounded private property).“The impoundment of an automobile is a seizure within the meaning of the Fourth Amendment.”  Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005); see, e.g., Brewster, 859 F.3d at 1196-97 (holding that 30-day impound of vehicle constitutes seizure that requires compliance with Fourth Amendment). 

            With respect to the Fourth Amendment, the Supreme Court has defined a seizure of a person as “a governmental termination of freedom of movement through means intentionally applied.”  Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original); see Torres v. Madrid, 141 S. Ct. 989, 1001 (2021) (“[A] seizure by acquisition of control involves either voluntary submission to a show of authority or the termination of freedom of movement.”); see also Nelson v. City of Davis, 685 F.3d 867, 876-77 (9th Cir. 2012) (discussing intent and concluding that defendant officers intentionally seized plaintiff under the Fourth Amendment).  It is well settled that “negligent acts do not incur constitutional liability.”  Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002), abrogated on other grounds by Cnty. of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017); see Ochoa v. Pub. Consulting Grp., Inc., 48 F.4th 1102, 1110 (9th Cir. 2022) (“‘[T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.’” (quoting Daniels v. Williams, 474 U.S. 327, 328 (1986))). The Committee assumes the same intentional mental state is required to prove a § 1983 claim based on an unreasonable seizure of property in violation of the Fourth Amendment.  Thus, this instruction includes an optional definition of the term “intentionally” for use when it would be helpful to the jury. 

Revised March 2025

            In general, a seizure of a person’s property is unreasonable under the Fourth Amendment unless the seizure is authorized by a warrant. [A “warrant” is a written order signed by a judge that permits a law enforcement officer to seize particular property.] Under an exception to this rule, a warrant is not required, and a seizure of property is reasonable if [set forth applicable exception to warrant requirement]. Therefore, in order to prove the seizure in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception does not apply.  

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and in conjunction with Instruction 9.18 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Property—Generally). 

           “[I]n the ordinary case, seizures of personal property are unreasonable within the meaning of the Fourth Amendment . . . unless . . . accomplished pursuant to a judicial warrant issued by a neutral and detached magistrate after finding probable cause.” Menotti v. City of Seattle, 409 F.3d 1113, 1154 (9th Cir. 2005) (quoting Illinois v. McArthur, 531 U.S. 326, 330-31 (2001)).   

            Although the Committee has not provided instructions for the many exceptions to the warrant requirement for the seizure of property, the following decisions may be helpful in formulating an instruction tailored to particular facts: 

            (1) Menotti, 409 F.3d at 1152 n.72 (collecting case citations authorizing warrantless seizures of property in the context of administrative searches, searches incident to arrest, automobile checkpoint searches, and Terry v. Ohio, 392 U.S. 1 (1968)). 

            (2) Lavan v. City of Los Angeles, 693 F.3d 1022, 1030-31 (9th Cir. 2012) (concluding that the warrantless seizure of a homeless person’s abandoned property was properly subjected to Fourth Amendment’s reasonableness requirement); see also Garcia v. City of Los Angeles, 11 F.4th 1113, 1119 (9th Cir. 2021) (holding a city ordinance allowing the city to discard bulky items of personal property stored in public areas, when such areas were not designated as shelters, authorized unreasonable seizures in violation of the Fourth Amendment). 

            (3) United States v. Stafford, 416 F.3d 1068, 1076 (9th Cir. 2005) (discussing the plain view exception to the warrant requirement). 

            (4) Rodriguez v. City of San Jose, 930 F.3d 1123, 1140 (9th Cir. 2019) (discussing the emergency exception and “community caretaking function” exception in the context of seizure of firearms from a home when police had probable cause to detain a resident experiencing an acute mental health episode who otherwise would have access to firearms and present a serious public safety threat upon returning home). 

            (5) Kilgore v. City of South El Monte, 3 F.4th 1186, 1189-93 (9th Cir. 2021) (discussing warrantless administrative searches for “closely regulated” businesses). 

            (6) United States v. Anderson, 101 F.4th 586, 596-97 (9th Cir. 2024) (discussing the scope of the inventory search exception to the warrant requirement).

             (7) United States v. Baker, 58 F.4th 1109, 1116 (9th Cir. 2023) (“Because warrantless searches or seizures of abandoned property do not violate the [F]ourth [A]mendment, persons who voluntarily abandon property lack standing to complain of its search or seizure.”) (quoting United States v. Nordling, 804 F.2d 1466, 1469 (9th Cir. 1986)).

             (8) Brewster v. Beck, 859 F.3d 1194, 1196–97 (9th Cir. 2017) (explaining the state’s interest in keeping unlicensed drivers off the road is governed by the “community caretaking” exception, which permits government officials to remove vehicles from the streets when they “jeopardize public safety and the efficient movement of vehicular traffic”).

             (9) Woodward v. City of Tucson, 870 F.3d 1154, 1160 (9th Cir. 2017) (“One who has been formally evicted has no reasonable expectation of privacy in his or her previous residence” and “[b]ecause the undisputed evidence shows that [the former tenant] was aware of her eviction, this case differs from situations where the individuals claiming privacy rights either did not know they had been evicted or claimed that they still had tenancy rights.”). 

(10) Verdun v. City of San Diego, 51 F.4th 1033, 1046-48 (9th Cir. 2022) (holding that the longstanding practice of chalking tires for parking enforcement purposes does not violate the Fourth Amendment warrant requirement for searches because it fits with the “administrative search” (or “special needs”) exception).

           A plaintiff alleging a § 1983 claim based on an unreasonable seizure in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply. Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994) (“Larez at all times had the ultimate burden of proving to the jury that she had been seized unreasonably in violation of the Fourth Amendment.”); Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that the plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”); see also Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing the burden on the plaintiff to establish absence of imminent danger in a claim of interference with the parent-child relationship). In Mueller, parents brought a § 1983 suit against law enforcement officers who removed their infant child to secure testing and treatment advised by physicians. On appeal, the Muellers argued that the jury instructions erroneously put the burden on them to show an absence of imminent danger to their child. Mueller, 700 F.3d at 1193. The Ninth Circuit held that “[b]ecause the Muellers’ claims arise under section 1983 the jury instructions properly placed the burden on the Muellers.” Id.; cf. Hopkins v. Bonvicino, 573 F.3d 752, 764 (9th Cir. 2009) (placing the burden on the defendant to show existence of exigent circumstance at the summary judgment stage).

Revised November 2024

 

           As previously explained, the plaintiff has the burden of proving that the act[s] of the defendants deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the Fourth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].   

           Under the Fourth Amendment, a person has the right to be free from an unreasonable seizure of [his] [her] [other pronoun] person. In order to prove the defendant deprived the plaintiff of this Fourth Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence: 

First, the defendant seized the plaintiff’s person; 

Second, in seizing the plaintiff’s person, the defendant acted intentionally; and 

Third, the seizure was unreasonable. 

            A defendant “seizes” the plaintiff’s person when [he] [she] [other pronoun] restrains the plaintiff’s liberty through coercion, physical force, or a show of authority. A person’s liberty is restrained when, under all of the circumstances, a reasonable person would not have felt free to ignore the presence of law enforcement officers and to go about [his] [her] [other pronoun] business. 

            In determining whether a reasonable person in the plaintiff’s position would have felt free to leave, consider all of the circumstances, including: 

1.         the number of officers present; 

2.         whether weapons were displayed; 

3.         whether the encounter occurred in a public or nonpublic setting; 

4.         whether the officer’s manner would imply that compliance would be compelled; and 

5.         whether the officers advised the plaintiff that [he] [she] [other pronoun] was free to leave. 

            [A person acts “intentionally” when the person acts with a conscious objective to engage in particular conduct. Therefore, the plaintiff must prove that the defendant intended to [insert the factual basis for the plaintiff’s claim]. It is not enough to prove that the defendant negligently or accidentally engaged in that action. But while the plaintiff must prove that the defendant intended to act; the plaintiff need not prove that the defendant intended to violate the plaintiff’s Fourth Amendment rights.] 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and with an appropriate definition of an unreasonable seizure such as Instructions 9.21–9.25. 

            The Fourth Amendment protects “against unreasonable searches and seizures.” U.S. Const. amend IV. “A ‘seizure’ triggering the Fourth Amendment’s protections occurs only when government actors have, ‘by means of physical force or show of authority, . . . in some way restrained the liberty of a citizen.’” Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (omissions in original) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). This may occur through coercion, physical force, or a show of authority. United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997). A person’s liberty is restrained when, “taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’” Florida v. Bostick, 501 U.S. 429, 437 (1991); see also Dees v. County of San Diego, 960 F.3d 1145, 1154 (9th Cir. 2020) (holding that a seizure occurs if, in view of all circumstances surrounding incident, a reasonable person would have believed she was not free to leave). 

A seizure requires the use of force with an intent to restrain. The Supreme Court has defined a seizure of a person as “a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original); see also Torres v. Madrid, 592 U.S. 306, 317 (2021) (“A seizure requires the use of force with intent to restrain. Accidental force will not qualify.”); Brendlin v. California, 551 U.S. 249, 254 (2007). Thus, this instruction includes an optional definition of the term “intentionally” for use when it would be helpful to the jury. “[A] passenger struck by a bullet intended to stop the driver of a vehicle” has been seized. Villanueva v. California, 986 F.3d 1158, 1165 (9th Cir. 2021).  In Sanderlin v. Panighetti, the Ninth Circuit held that the defendant seized the plaintiff when he “intentionally applied physical force, and as a result, [the plaintiff’s] ‘freedom of movement [was] restrained.’” 116 F.4th 905, 912 (9th Cir. 2024) (citation omitted). It did not matter that the defendant’s incapacitation of the plaintiff was limited in duration nor was it relevant that the plaintiff was able to walk away. Id. Further, the method of force that the defendant used—firing foam batons—incapacitated its target, and a reasonable trier of fact could conclude that by firing a projectile at plaintiff, the defendant objectively manifested an intent to restrain the plaintiff. Id. The defendant’s subjective intent was irrelevant. Id.

A seizure, however, “does not occur simply because a police officer approaches an individual and asks a few questions.” Bostick, 501 U.S. at 434; accord United States v. Brown, 996 F.3d 998, 1005 (9th Cir. 2021). The general rule is that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“characterizing every street encounter between a citizen and the police as a ‘seizure,’ while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices”); see also Dees, 960 F.3d at 1154 (holding that a seizure occurs if, in view of all circumstances surrounding incident, a reasonable person would have believed she was not free to leave). In addition, a seizure “requires either physical force … or, where that is absent, submission to the assertion of authority.” California v. Hodari D., 499 U.S. 621, 626 (1991); Hill v. City of Fountain Valley, 70 F.4th 507, 514 (9th Cir. 2023) (“Put another way, if a plaintiff did not comply with an officer’s orders, then the officer did not seize the plaintiff.”). Attempted seizures are not protected by the Fourth Amendment. County of Sacramento v. Lewis, 523 U.S. 833, 845 n.7 (1998) (“Attempted seizures . . . are beyond the scope of the Fourth Amendment.”); Cuevas v. City of Tulare, 107 F.4th 894, 899 (9th Cir. 2024) (holding that a driver was not seized when the driver’s vehicle became stuck in the mud on the roadside as driver attempted to flee a felony stop but was seized when officer put police canine through broken window of vehicle, instructing canine to bite driver, and when officers fired at driver after driver shot the canine and his handler). An “application of force with an objective intent merely to disperse or exclude persons from an area—and without any measures objectively aimed at detaining or confining them in the process—does not involve the necessary ‘intent to restrain’ that might give rise to a ‘seizure.’” Puente v City of Phoenix, 123 F.4th 1035, 1052 (9th Cir. 2024) (emphasis in original) (holding that the use of chemical irritants to disperse a crowd did not constitute a seizure because there was no basis in the record for concluding that it was undertaken with the necessary objective intent to restrain). 

            In determining whether a reasonable person would have felt free to ignore police presence, the Ninth Circuit considers five factors:  “(1) the number of officers; (2) whether weapons were displayed; (3) whether the encounter occurred in a public or nonpublic setting; (4) whether the officer’s officious or authoritative manner would imply that compliance would be compelled; and (5) whether the officers advised the detainee of his right to terminate the encounter.” United States v. Brown, 563 F.3d 410, 415 (9th Cir. 2009) (quoting United States v. Washington, 387 F.3d 1060, 1068 (9th Cir. 2004)). In Morgan v. Woessner, 997 F.2d 1244 (9th Cir. 1993), the Ninth Circuit explained that “stops” under the Fourth Amendment fall into three categories: 

First, police may stop a citizen for questioning at any time, so long as that citizen recognizes that he or she is free to leave. Such brief, “consensual” exchanges need not be supported by any suspicion that the citizen is engaged in wrongdoing, and such stops are not considered seizures. Second, the police may “seize” citizens for brief, investigatory stops. This class of stops is not consensual, and such stops must be supported by “reasonable suspicion.” Finally, police stops may be full-scale arrests. These stops, of course, are seizures, and must be supported by probable cause. 

Id. at 1252 (citations omitted). 

            Section 1983 “contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.” OSU Student All. v. Ray, 699 F.3d 1053, 1071-72 (9th Cir. 2012) (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)). It is well settled that “negligent acts do not incur constitutional liability.” Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002), abrogated on other grounds by County of Los Angeles v. Mendez, 581 U.S. 420 (2017). Specific intent to violate a person’s rights “is not a prerequisite to liability under § 1983.” Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992) (holding the district court erred in instructing the jury that, in order to prevail on his § 1983 claim for false arrest, the plaintiff was required to show that the defendant specifically intended to deprive him of his constitutional rights). 

In a school setting, however, “while the traditional Fourth Amendment analysis ‘is predominantly an objective inquiry,’ the ‘actual motivations’ of officers may be considered when applying the special needs” exception to the warrant and probable cause requirements of the Fourth Amendment. Scott v. City of San Bernardino, 903 F.3d 943, 949 (9th Cir. 2018) (affirming summary judgment in favor of the plaintiff middle school students unreasonably arrested without probable cause). A Fourth Amendment seizure of a bystander can occur when officers intentionally use force that injures the bystander. Villanueva v. California, 986 F.3d 1158, 1168 (9th Cir. 2021) (citing Nelson v. City of Davis, 685 F.3d 867, 876 (9th Cir. 2012)). 

No separate instruction is provided for a child’s claim for unreasonable removal by social workers. Such action may violate the child’s Fourth Amendment rights if the child is removed in the absence of either a warrant or exigent circumstances. See, e.g., Kirkpatrick v. County of Washoe, 843 F.3d 784, 790-91 (9th Cir. 2016) (en banc) (holding that government official may take child away from parents’ home without judicial authorization only “when officials have reasonable cause to believe that the child is likely to experience serious bodily harm in the time that would be required to obtain a warrant”); see also Demaree v. Pederson, 887 F.3d 870, 878 (9th Cir. 2018) (“There are narrow circumstances in which the government may constitutionally remove children from their families temporarily without judicial authorization.”); Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007) (stating the facts did not support an imminent risk of serious bodily harm, and therefore, a warrant was required). 

A parent may also be able to assert a Fourteenth Amendment claim in such circumstances for interference with the parent–child relationship. See Instruction 9.32 (Particular Rights—Fourteenth Amendment—Due Process—Interference with Parent/Child Relationship). 

If the court is able to determine as a matter of law that the plaintiff was seized, the Committee recommends the court instruct the jury accordingly and omit the portions of this instruction that define a seizure. 

Revised March 2025

            In general, a seizure of a person for an investigatory stop is reasonable if, under all of the circumstances known to the officer[s] at the time: 

            First, the officer[s] had a reasonable suspicion that the person seized was engaged in [criminal activity] [other conduct justifying investigation, e.g., a traffic infraction]; and                                               

            Second, the length and scope of the seizure was reasonable. 

            In order to prove the seizure in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that the officer[s] lacked reasonable suspicion to stop [him] [her] [other pronoun]or that the length or scope of the stop was excessive. 

            “Reasonable suspicion” is a particularized and objective basis for suspecting the plaintiff of criminal activity.  The officer[s] [is] [are] permitted to draw on [his] [her] [other pronoun]  own experience and specialized training to make inferences from and deductions about the cumulative information available to [him] [her] [other pronoun]. 

            In determining whether the length or scope of the seizure was reasonable, consider all of the circumstances, including: 

            (1)       the intrusiveness of the stop, such as the methods the police used, the restriction on the plaintiff’s liberty, and the length of the stop; 

            (2)       whether the methods used were reasonable under the circumstances; and 

            [(3)      insert other factors applicable to this case.] 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instruction 9.3–9.8, and in conjunction with Instruction 9.20 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Generally). 

            A police officer may conduct a brief stop for investigatory purposes when the officer has “reasonable suspicion” to believe the stopped individual is engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 23-27 (1968). An investigatory stop of a vehicle is justified under the Fourth Amendment if the officer reasonably suspects that a traffic violation has occurred. Melendres v. Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012). However, a traffic stop “exceeding the time needed to handle the matter for which the stop was made” violates the constitutional protection against unreasonable seizures. Rodriguez v. United States, 575 U.S. 348, 351 (2015). Handling the traffic stop includes checking driver’s licenses, determining whether there are outstanding warrants, and inspecting the car’s registration and proof of insurance. Id. at 355. A stop is not prolonged beyond the mission of the original traffic stop where officers conduct an investigation into matters such as a criminal history check, because such an investigation “stems from the mission of the stop itself” and “is a ‘negligibly burdensome precaution’ necessary ‘to complete the stop safely.’” United States v. Taylor, 60 F.4th 1233, 1241 (9th Cir. 2023) (quoting United States v. Hylton, 30 F.4th 842, 848 (9th Cir. 2022)). Likewise, officers do not prolong a stop by conducting a pat down search for weapons where the officers have reasonable suspicion “that the driver ‘might be armed and presently dangerous.’” Taylor, 60 F.4th at 1242(quoting Arizona v. Johnson, 555 U.S. 323, 331 (2009)). Further, there is no Fourth Amendment violation “even if officers prolonged the encounter beyond the original mission of the traffic stop,” so long as the officers “had a sufficient basis to do so,” which includes “reasonable suspicion of an independent offense.” Taylor, 60 F.4that 1242 (holding that the stop was not prolonged where “officers knew about [defendant’s] traffic offenses and that he was on federal supervision for being a felon in possession, and once [defendant] stepped out of the car, the officers could clearly see [defendant’s] unzipped, empty fanny pack,” which officers knew from experience was commonly used to store weapons). An officer may not conduct unrelated checks (such as a dog sniff) “in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Rodriguez, 575 U.S. at 355.

            “Reasonable suspicion” is defined as “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013). The reasonable suspicion standard “is not a particularly high threshold to reach.” United States v. Bontemps, 977 F.3d 909, 915 (9th Cir. 2020) (“[A] bulge suggestive of a firearm can be sufficient to create reasonable suspicion.”). It requires only “a minimal level of objective justification.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). Because the standard is objective, an officer need not tell the individual the real reason for the stop. United States v. Magallon-Lopez, 817 F.3d 671, 675 (9th Cir. 2016) (holding that an officer may lie to individual about basis for Terry stop). An officer is permitted to draw on the officer’s own “experience and specialized training to make inferences from and deductions about the cumulative information available to the officer that might otherwise elude an untrained person.”Valdes-Vega, 738 F.3d at 1078 (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). A court must consider the totality of the circumstances when determining whether reasonable suspicion existed. Id. Additional information acquired through consensual questioning combined with an officer’s knowledge and training can give rise to reasonable, articulable suspicion. See United States v. Brown, 996 F.3d 998, 1007 (9th Cir. 2021); Taylor, 60 F.4th at 1242 (upholding a Terry search where officers knew about defendant’s traffic offenses and that he was on federal supervision for being felon in possession of firearm; after defendant stepped out of car, officers could clearly see defendant’s unzipped, empty fanny pack, which officers knew from their experience was commonly used to store weapons). However, “avoidance of the police, standing alone, does not give rise to a particularized, reasonable suspicion that a person is committing a crime.” Liberal v. Estrada, 632 F.3d 1064, 1078 (9th Cir. 2011) (stating that no reasonable suspicion existed where “Plaintiff was trying to avoid him by making several turns and then parking next to a dumpster in a darkened alley. [Although in] some circumstances, a suspect’s unprovoked, headlong flight can support an officer’s reasonable suspicion.”), abrogated in part, Hampton v. California, 83 F.4th 754, 773 (9th Cir. 2023) (concluding that immunities stated in California's Government Claims Act are defenses to liability, not immunities from suit). 

           In cases involving multiple individuals who are searched or seized, “[a] search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) (listing several limited circumstances where suspicionless searches are permitted). However, an officer’s lack of individualized suspicion does not, standing alone, make the search and seizure automatically unlawful. See Lyall v. City of Los Angeles, 807 F.3d 1178, 1194-95 (9th Cir. 2015) (“the fact that the officers’ reasonable suspicion of wrongdoing is not particularized to each member of a group of individuals present at the same location does not automatically mean that a search of the people in the group is unlawful”). The reasonableness of the search and seizure must be determined in light of the circumstances. Id.  

           “[R]ace is a trait that, when combined with others, can reasonably lead an officer to zero in on a particular suspect,” but “[r]ace is of little value in distinguishing one suspect from others, particularly where everyone in the pool of possible suspects is of the same race.” Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1174-75 (9th Cir. 2013). 

          In the case of a Terry stop to investigate a completed misdemeanor, the court must “consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger (e.g., drunken and/or reckless driving), and any risk of escalation (e.g., disorderly conduct, assault, domestic violence)” when determining “whether the Fourth Amendment permits an officer to detain a suspected misdemeanant.” Johnson, 724 F.3d at 1175. 

           “There is no bright-line rule to determine when an investigatory stop becomes an arrest.”  Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996) (citing United States v. Parr, 843 F.2d 1228, 1231 (9th Cir. 1988)). The analysis depends on the “totality of the circumstances” and is “fact-specific.” Id. 

In looking at the totality of the circumstances, we consider both the intrusiveness of the stop, i.e., the aggressiveness of the police methods and how much the plaintiff’s liberty was restricted, and the justification for the use of such tactics, i.e., whether the officer had sufficient basis to fear for his safety to warrant the intrusiveness of the action taken. In short, we decide whether the police action constitutes a Terry stop or an arrest by evaluating not only how intrusive the stop was, but also whether the methods used were reasonable given the specific circumstances. As a result, we have held that while certain police actions constitute an arrest in certain circumstances, e.g., where the “suspects” are cooperative, those same actions may not constitute an arrest where the suspect is uncooperative or the police have specific reasons to believe that a serious threat to the safety of the officers exists. The relevant inquiry is always one of reasonableness under the circumstances. 

Id. (citations omitted); see also Lyall, 807 F.3d at 1193 n.13 (permitting the jury to conclude that detention of plaintiffs for 30-45 minutes for field identification did not transform detention from a Terry stop into an arrest requiring a more demanding showing of probable cause). 

            In Reynaga Hernandez v. Skinner, 969 F.3d 930, 937-40 (9th Cir. 2020), the court held that detaining individuals based solely on reasonable suspicion or knowledge that a person was unlawfully present in the United States, which is not a crime under 8 U.S.C. § 1325, is not sufficiently “premised on criminality” to justify a stop under Terry. See also United States v. Cabrera, 83 F.4th 729, 735 (9th Cir. 2023) (explaining that a stop meets the requirements of Terry when an officer has reasonable suspicion to believe that the defendant may have been entering the country illegally, the detention was brief, the limited restraint was reasonable under the circumstances, and the questioning was reasonablyrelated to the justification for the stop).

Revised November 2024

            In general, a search of a person is unreasonable under the Fourth Amendment if the search is not authorized by a search warrant. [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.] Under an exception to this rule, a warrantless search of a person for weapons is permissible when an officer reasonably believes that the person is armed and dangerous.

             A search for weapons is permissible if, under all the circumstances known to the officer[s] at the time: 

1.         the officer[s] had a reasonable suspicion that the person was armed and presently dangerous to the officer[s] or to others; and 

2.         the scope of the search was strictly limited to that which is necessary for the discovery of weapons. 

           “Reasonable suspicion” is a particularized and objective basis for suspecting the plaintiff is armed. The officer[s] [is] [are] permitted to draw on [his] [her] [other pronoun] own experience and specialized training to make inferences from and deductions about the cumulative information available to [him] [her] [other pronoun]. 

Comment 

            A police officer may conduct a patdown search to determine whether a person is carrying a weapon when the officer has a reasonable suspicion that the person is armed and presently dangerous to the officer or to others. Terry v. Ohio, 392 U.S. 1, 24 (1983). “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.”Adams v. Williams, 407 U.S. 143, 146 (1972). Thus, the scope of the search “must be strictly ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.’” Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (quoting Terry, 392 U.S. at 24). 

            A Terry search must be “confined in scope” to a “carefully limited search of the outer clothing . . . in an attempt to discover weapons.” United States v. Baker, 58 F.4th 1109, 1117 (9th Cir. 2023) (citing Terry, 392 U.S. at 29). In Baker, a police officer exceeded the permissible scope of Terry stop and frisk by removing a car key visibly hanging from defendant’s belt loop and searching for the car that corresponded to it. Baker, 58 F.4th at 1117-18. In United States v. Brown, 996 F.3d 998 (9th Cir. 2021), the court considered whether an officer conducting a Terry stop could lawfully reach into the detainee’s pocket as the initial means of conducting a patdown search. Id. at 1009. The court held that even if the officer “was authorized to conduct a protective frisk, his search of [the defendant’s] right pocket exceeded what Terry and its progeny allow.” Id. at 1008. Thus, “[a] lawful frisk does not always flow from a justified stop.” United States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988). Rather, “[e]ach element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined.” Id. 

            Reasonable suspicion is an objective standard, which requires consideration of the totality of the circumstances. Terry, 392 U.S. at 28. 

In assessing the totality of the circumstances, relevant considerations may include: observing a visible bulge in a person’s clothing that could indicate the presence of a weapon; seeing a weapon in an area the suspect controls, such as a car; “sudden movements” suggesting a potential assault or “attempts to reach for an object that was not immediately visible”; “evasive and deceptive responses” to an officer’s questions about what an individual was up to; unnatural hand postures that suggest an effort to conceal a firearm; and whether the officer observes anything during an encounter with the suspect that would dispel the officer’s suspicions regarding the suspect’s potential involvement in a crime or likelihood of being armed.

Thomas v. Dillard, 818 F.3d 864, 877 (9th Cir. 2016) (internal citations omitted). The reasonable suspicion standard “is not a particularly high threshold to reach.” United States v. Bontemps, 977 F.3d 909, 915 (9th Cir. 2020) (“[A] bulge suggestive of a firearm can be sufficient to create reasonable suspicion.”). While suspected domestic violence is a relevant consideration in assessing whether a person is armed and dangerous, suspicion of such a crime by itself does not provide a reason to suspect a person is armed.  Thomas, 818 F.3d at 878; see United States v. Taylor, 60 F.4th 1233, 1242 (9th Cir. 2023) (upholding a Terry search where officers knew about defendant’s traffic offenses, that he was on federal supervision for being felon in possession of firearm; after defendant stepped out of car, officers could clearly see defendant’s unzipped, empty fanny pack, which officers knew from their experience was commonly used to store weapons).

             For Terry stops, use Instruction 9.21 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Exception to Warrant Requirement—Terry Stop). 

Revised November 2024

            In general, a seizure of a person by arrest without a warrant is reasonable if the arresting officer[s] had probable cause to believe the plaintiff has committed or was committing a crime. 

            In order to prove the seizure in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that [he] [she] [other pronoun] was arrested without probable cause. 

            “Probable cause” exists when, under all of the circumstances known to the officer[s] at the time, an objectively reasonable police officer would conclude there is a fair probability that the plaintiff has committed or was committing a crime. 

            Although the facts known to the officer are relevant to your inquiry, the officer’s intent or motive is not relevant to your inquiry. 

            Under [federal] [state] law, it is a crime to [insert elements or description of applicable crime for which probable cause must have existed]. 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and in conjunction with Instruction 9.20 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Generally). 

            “In the context of a § 1983 action, a Fourth Amendment violation occurs when a person is arrested ‘without probable cause or other justification.’” Vanegas v. City of Pasadena, 46 F.4th 1159, 1164 (9th Cir. 2022) (quoting Lacey v. Maricopa County, 693 F.3d 896, 918 (9th Cir. 2012) (en banc)).   “Probable cause exists if the arresting officers had knowledge and reasonably trustworthy information of facts and circumstances sufficient to lead a prudent person to believe that [the arrestee] had committed or was committing a crime.”Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097-98 (9th Cir. 2013)(alteration in original) (quoting Maxwell v. County of San Diego, 697 F.3d 941, 951 (9th Cir. 2012)). “To determine whether an officer had probable cause for an arrest, we examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. Because probable cause deals with probabilities and depends on the totality of the circumstances, it is a fluid concept that is not readily, or even usefully, reduced to a neat set of legal rules. It requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. Probable cause is not a high bar.” District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (internal quotations and citations omitted); see also Miller v. City of Scottsdale, 88 F.4th 800, 804 (9th Cir. 2023) (“For probable cause, officers may rely on information gained by other officers under the ‘collective knowledge’ doctrine.”).

            In Devenpeck v. Alford, the Supreme Court reiterated the Fourth Amendment standards applicable in a § 1983 claim for false arrest: 

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

 

In conformity with the rule at common law, a warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed. Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.

 

Our cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” . . . “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.” 

Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004) (citations omitted) (emphasis in original). 

            “There is probable cause for a warrantless arrest and a search incident to that arrest if, under the totality of the facts and circumstances known to the arresting officer, a prudent person would have concluded that there was a fair probability that the suspect had committed a crime.” United States v. Struckman, 603 F.3d 731, 739 (9th Cir. 2010). “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).“‘[S]tate restrictions [on arrest] do not alter the Fourth Amendment’s protections,’ and under federal law, ‘warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution.’” Edgerly v. City & County of San Francisco, 599 F.3d 946, 956 (9th Cir. 2010) (second alteration in original) (quoting Virginia v. Moore, 553 U.S. 164, 176 (2008)). A warrantless arrest for a crime committed in the presence of an arresting officer is permitted, even if the offense, as a matter of state law, was one for which the officers should have issued a summons rather than made an arrest. Moore, 553 U.S. at 167-72. 

           Absent exigent circumstances, however, authority to make a warrantless arrest based on probable cause ends at the threshold of a private dwelling, and police may not make a warrantless, nonconsensual entry into a suspect’s residence to make a felony arrest. Payton v. New York, 445 U.S. 573, 590 (1980); see also Hopkins v. Bonvicino, 573 F.3d 752, 773 (9th Cir. 2009) (stating that police officers may not execute a warrantless arrest in a home unless they have both probable cause and exigent circumstances). “[A] ‘person may not be arrested, or must be released from arrest, if previously established probable cause has dissipated.’” Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019) (“[I]t was soon apparent to the officers that the teenagers were unarmed, posed no threat to anyone, and were not engaged in any criminal activity.”).

In Reynaga Hernandez v. Skinner, 969 F.3d 930, 940-41 (9th Cir. 2020), the Ninth Circuit explained that to determine whether a Terry stop has escalated into a full-blown arrest, courts evaluate the severity of the intrusion, the aggressiveness of the officer’s actions, and the reasonableness of the officer’s methods under the circumstances.

             Additionally, in a school setting, “while the traditional Fourth Amendment analysis ‘is predominantly an objective inquiry,’ the ‘actual motivations’ of officers may be considered when applying the special needs” exception to the warrant and probable cause requirements of the Fourth Amendment. Scott v. City of San Bernardino, 903 F.3d 943, 949 (9th Cir. 2018) (affirming summary judgment in favor of the plaintiff middle school students unreasonably arrested without probable cause). 

Revised November 2024

            In general, a law enforcement officer may detain [a person in the immediate vicinity] [an occupant] of a premises during a search of that premises authorized by a search warrant so long as the officer detains the person in a reasonable manner and does not detain the person any longer than the time it takes to complete the search. 

            To prove the seizure in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that [he] [she] [other pronoun] was detained in an unreasonable manner or for an unreasonable period of time after the search was completed or both.          

            In determining whether the officer[s] detained the plaintiff unreasonably in this case, consider all of the circumstances known to the officer[s] on the scene, including: 

1.         the severity of the suspected crime or other circumstances that led to the search warrant; 

2.         whether the plaintiff was the subject of the investigation that led to the search warrant; 

3.         whether the plaintiff posed an immediate threat to the safety of the officer[s] or to others or to the ability of the officer[s] to conduct the search safely; 

4.         whether the plaintiff was actively resisting arrest or attempting to flee; 

5.         whether the detention of the plaintiff was unnecessarily painful, degrading, prolonged, or involved an undue invasion of privacy; 

6.         whether the detention of the plaintiff facilitated the orderly completion of the search; and 

[7.        insert other factors particular to the case.] 

            Under the Fourth Amendment, an officer may use only such force to detain a person as is “objectively reasonable” under the circumstances. In other words, you must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight.  

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and in conjunction with Instruction 9.20 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Generally). 

            This instruction is based on the district court’s jury instructions approved in Muehler v. Mena, 544 U.S. 93, 104 n.2, 108 (2005) (Stevens, J., concurring). In Muehler, the Supreme Court reiterated its holding in Michigan v. Summers, 452 U.S. 692 (1981), that “officers executing a search warrant for contraband have the authority ‘to detain the occupants of the premises while a proper search is conducted.’” Id. at 98. The Court noted that Summers had

posited three legitimate law enforcement interests that provide substantial justification for detaining an occupant: “preventing flight in the event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of the search,” as detainees’ “self-interest may induce them to open locked doors or locked containers to avoid the use of force” . . . Inherent in Summers’ authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention.  

Muehler, 544 U.S. at 98-99 (citations omitted); see also Blight v. City of Manteca, 944 F.3d 1061, 1068 (9th Cir. 2019) (“The reasons for such a detention are particularly applicable in the context of a narcotics search because there is a heightened risk that an occupant could destroy evidence.”). Summers applies only to search warrants and does not give law enforcement officers the categorical authority to detain home occupants incident to the execution of an arrest warrant. Sharp v. County of Orange, 871 F.3d 901, 915 (9th Cir. 2017) (noting, however, that “entry into a home for the purpose of arresting an occupant can be a dangerous effort, and officers ought to have reasonable tools at their disposal to take command of the situation to protect their own safety and the safety of others”). Whether such a detention is authorized depends on the particular circumstances confronting the officer, such as the need to detain “occupants to stabilize the situation while searching for the subject of an arrest warrant or conducting a lawful protective sweep of the premises.” Sharp, 871 F.3d at 915; see also Blight, 944 F.3d at 1068 (detention of the suspect’s elderly mother for duration of the search of his property was reasonable under Fourth Amendment, notwithstanding her age, lack of evidence linking her to suspect’s marijuana operation, and length of time of detention, where the detainee was never personally searched or interrogated, and detention lasted no longer than one hour). 

            After Muehler, the Ninth Circuit noted in Dawson v. City of Seattle that “[t]o determine whether a detention incident to a search is constitutionally reasonable, [a court should] balance the law enforcement interests served by the detention against the public’s privacy interests.” 435 F.3d 1054, 1065-66 (9th Cir. 2006). “[D]etaining a building’s occupants serves at least three law enforcement interests:  first, detention prevents a suspect from fleeing before the police discover contraband; second, detention minimizes the risk that an officer or an occupant might be harmed during the search; and third, detention often expedites a search.” Id. at 1066. The court held:    

[T]he duration of a detention may be coextensive with the period of a search and require no further justification. The police do not, however, have unfettered authority to detain a building’s occupants in any way they see fit. Muehler confirms an officer’s authority to detain a building’s occupants during a search so long as the officer conducts the detention in a reasonable manner.

Id. (citations omitted); see also Howell v. Polk, 532 F.3d 1025, 1026 (9th Cir. 2008) (per curiam) (holding that whether “knock-and-announce” search warrant was unreasonably executed was a jury question to be determined under the totality of the circumstances). 

            A spatial or geographical boundary can be used to determine the area within which both the search and detention incident to that search may occur.  In Bailey v. United States, 568 U.S. 186, 201 (2013), the Supreme Court concluded that because the rule announced in Summers “grants substantial authority to police officers to detain outside of the traditional rules of the Fourth Amendment, it must be circumscribed.” The Court decided “[a] spatial constraint defined by the immediate vicinity of the premises to be searched is therefore required for detentions incident to the execution of a search warrant.” Id. (holding that detention of a person one mile from premises, who had left premises before search began, was not sufficiently connected to search of premises). “Confining an officer’s authority to detain under Summers to the immediate vicinity of a premises to be searched is a proper limit because it accords with the rationale of the rule.” Id. Thus, as in Bailey, when law enforcement waits to stop or detain a suspect until after he or she has left the search location, “the lawfulness of detention is controlled [not by Summers, but] by other standards,” namely, probable cause or reasonable suspicion. Id. at 202; see also United States v. Ramirez, 976 F.3d 946, 956 (9th Cir. 2020) (holding a Fourth Amendment violation occurred where “[i]t was only by posing as police officers investigating a fictitious home burglary that the agents convinced Ramirez to drive home, thereby creating the authority to seize him and his car that did not otherwise exist at the time”). 

Revised November 2024

             Under the Fourth Amendment, a police officer may use only such force as is “objectively reasonable” under all of the circumstances. You must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight. Although the facts known to the officer are relevant to your inquiry, an officer’s subjective intent or motive is not relevant to your inquiry.

             In determining whether the officer[s] used excessive force in this case, consider all of the circumstances known to the officer[s] on the scene, including:

             (1)        the nature of the crime or other circumstances known to the officer[s] at the time force was
                          applied;

             (2)        whether the [plaintiff] [decedent] posed an immediate threat to the safety of the officer[s] or to
                          others;

             [(3)      whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight;]

             (4)        the amount of time the officer[s] had to determine the type and amount of force that reasonably

                          appeared necessary, and any changing circumstances during that period;

             (5)        the relationship between the need for the use of force and the amount of force used;

 

 (6)        the extent of the [plaintiff’s] [decedent’s] injury;

 

 (7)        any effort made by the officer[s] to temper or to limit the amount of force;

 

 (8)        the severity of the security problem at issue;

 

             [(9)      the availability of alternative methods [to take the plaintiff into custody] [to subdue the plaintiff;]]

 

             [(10)      the number of lives at risk (motorists, pedestrians, police officers) and the parties’relative 
                           culpability; i.e.,which party created the dangerous situation, and which party is more innocent;]

             [(11)      whether it was practical for the officer[s] to give warning of the imminent use of force, and
                           whether such warning was given;]

             [(12)      whether the officer[s] [was] [were] responding to a domestic violence disturbance;]

             [(13)    whether it should have been apparent to the officer[s] that the person [he] [she] [other pronoun] used force
                         against was emotionally disturbed;]

             [(14)    whether a reasonable officer would have or should have accurately perceived a mistaken fact;]

             [(15)    whether there was probable cause for a reasonable officer to believe that the suspect had committed
                         a crime involving the infliction or threatened infliction of serious physical harm; and]
 

             [“Probable cause” exists when, under all of the circumstances known to the officer[s] at the time, an objectively reasonable police officer would conclude there is a fair probability that the plaintiff has committed or was committing a crime.] [and]

             [(16)    insert other factors particular to the case.]

              “Probable cause” exists when, under all of the circumstances known to the officer[s] at the time, an objectively reasonable police officer would conclude there is a fair probability that the plaintiff has committed or was committing a crime.

 Comment

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and in conjunction with Instruction 9.20 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Generally).

            In general, all claims of excessive force, whether deadly or not, should be analyzed under the objective reasonableness standard of the Fourth Amendment as set forth in Lombardo v. City of St. Louis, 594 U.S. 464, 467 (2021), County of Los Angeles v. Mendez, 581 U.S. 420, 428 (2017), Scott v. Harris, 550 U.S. 372, 381-85 (2007), Graham v. Connor, 490 U.S. 386, 397 (1989), and Tennessee v. Garner, 471 U.S. 1, 7-12 (1985). See alsoLombardo, 594 U.S. at 467 n.2 (explaining that the objective reasonableness standard applies whether the excessive force claim is brought under Fourth Amendment or Fourteenth Amendment). The objective reasonableness of such conduct is assessed by balancing the nature and quality of the intrusion on Fourth Amendment rights against the government’s countervailing interest in the force used. Estate of Aguirre v. County of Riverside, 29 F.4th 624, 628 (9th Cir. 2022) (quoting Graham, 490 U.S. at 396); see Mendez, 581 U.S. at 427 (“[D]etermining whether the force used to effect a particular seizure is reasonable requires balancing of the individual’s Fourth Amendment interests against the relevant government interests.” (internal quotation marks omitted) (quoting Graham, 490 U.S. at 396)). 

         In assessing “whether an officer’s actions were objectively reasonable, we consider: ‘(1) the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted, (2) the government’s interest in the use of force, and (3) the balance between the gravity of the intrusion on the individual and the government’s need for that intrusion.’” Williamson v. City of Nat’l City, 23 F.4th 1146, 1151 (9th Cir. 2022) (quoting Rice v. Morehouse, 989 F.3d 1112, 1121 (9th Cir. 2021)). “Our analysis must make ‘allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.’” Williamson, 23 F.4th at 1151. “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.” Graham, 490 U.S. at 396; see Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (“A court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.”); see also Demarest v. City of Vallejo, 44 F.4th 1209, 1226 (9th Cir. 2022) (“[A]n ‘officer’s use of force cannot be deemed excessive based on facts that he [or she] reasonably would not have known or anticipated.’”). Further, the “analysis is not static, and the reasonableness of force may change as the circumstances evolve.” Hyde v. City of Willcox, 23 F.4th 863, 870 (9th Cir. 2022); see also Andrews v. City of Henderson, 35 F.4th 710, 715 (9th Cir. 2022) (“The detectives’ interest in using significant force against Andrews is undermined by their knowledge that he was unarmed; his lack of any aggressive, threatening, or evasive behavior; and the detectives’ failure to provide any prior warning or consider less intrusive alternatives before forcibly tackling him to the ground.”). An officer’s subjective intent or motivation is not relevant to the reasonableness inquiry. See Graham, 490 U.S. at 397; Shafer v. County of Santa Barbara, 868 F.3d 1110, 1116 (9th Cir. 2017); see Singh v. City of Phoenix, 124 F.4th 746, 751-754 (9th Cir. 2024) (explaining that although the plaintiff failed to comply with the officers’ commands to drop a knife, and the plaintiff had established a plausible but not conclusive constitutional violation, id. at 750, the Ninth Circuit’s decision in Glenn v. Washington County, 673 F.3d 864, 873 (9th Cir. 2011) clearly established that the officer’s use of deadly “force was objectively unreasonable in the circumstances.”) In Glenn, a number of other circumstances weighed “against deeming him ‘an immediate threat to the safety of the officers or others,’” including that he “was ‘not in possession of any guns,’ that he was ‘not in a physical altercation with anyone,’” and he “did not attack the officers . . . [nor] did he even threaten to attack any of them.” id. at 752 (quoting, Glenn v. Washington County, 673 F.3d at 864, 873). 

            In assessing the governmental interest in the use of force, the jury should consider the three non-exclusive factors set forth by the Supreme Court in Graham v. Connor. See Williamson, 23 F.4th at 1153; Rice, 989 F.3d at 1121. These factors are commonly referred to as Graham factors. See, e.g., Estate of Aguirre, 29 F.4th at 628. The three Graham factors are: (1) the severity of the crime at issue; (2) whether the individual posed an immediate threat to the safety of the officers or others; and (3) whether the individual was actively resisting arrest or attempting to evade arrest by flight. Graham, 490 U.S. at 396; Seidner v. de Vries, 39 F.4th 591, 599 (9th Cir. 2022); see also Estate of Aguirre, 29 F.4th at 628 (describing the second Graham factor as “the level of immediate threat [the individual] posed to the officer or others”).  The Ninth Circuit has repeatedly emphasized that “the most important Graham factor” is whether the individual posed an immediate threat to the safety of the officers or others. Bernal v. Sacramento Cnty. Sheriff's Dep’t, 73 F.4th 678, 692 (9th Cir. 2023) (characterizing the threat to the officer as “minimal and quickly mitigated” when officer was standing momentarily behind an operational vehicle); see, e.g., Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). The importance of this second Graham factor was highlighted by the Ninth Circuit when it held that the immediacy of the threat of a person pointing a replica gun at officers outweighed the bulk of Graham factors favoring the person fatally shot. Estate of Strickland v. Nevada County, 69 F.4th 614, 621-22 (9th Cir. 2023) (distinguishing the case from other replica/toy gun cases on the basis that in those cases the persons holding the toy/replica guns did not point it at officers and the courts’ analysis did not hinge on the misidentification of the gun).  When faced with a threat, officers “need not avail themselves of the least intrusive means of responding to an exigent situation.” Napouk v. Las Vegas Metro. Police Dep’t, 123 F.4th 906, 919 (9th Cir. 2024) (declining “to create a rule by which officers have a duty to indefinitely retreat when faced with an immediate threat” (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). 

            “Other factors, in addition to the three Graham factors, may be pertinent in deciding whether a use of force was reasonable under the totality of the circumstances.” Nehad v. Browder, 929 F.3d 1125, 1137 (9th Cir. 2019); see also Mattos, 661 F.3d at 441 (“[W]e examine the totality of the circumstances and consider whatever specific factors may be appropriate in a particular case, whether or not listed in Graham.” (internal quotation marks omitted)).  

            In Kingsley, the Supreme Court listed several additional factors that are relevant to an excessive force inquiry.  See 576 U.S. at 397.  The Supreme Court has referred to these factors as the Kingsley factors.  See, e.g., Lombardo, 594 U.S. at 466-67.  The Kingsley factors are:

 the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.

Lombardo, 594 U.S. at 466-67 (quoting Kingsley, 576 U.S. at 397); accord Demarest, 44 F.4th at 1225.

            Additional factors set forth by the Ninth Circuit in other cases include:

        1.        the type and amount of force used, see Chinaryan v. City of Los Angeles, 113 F.4th 888, 907 (9th Cir. 2024) (“The district court’s instruction on excessive force, adapted from the Manual of Model Civil Jury Instructions, provided the general reasonableness standard and listed eight case-relevant factors to consider, including ‘the type and amount of force used.’ This instruction sufficiently covered the officers’ use of high-risk tactics in this case.”); see Seidner, 39 F.4th at 596; Williamson, 23 F.4th at 1151–52 (“The nature and degree of physical contact are relevant to this analysis, as are the ‘risk of harm and the actual harm experienced.’” (citations omitted)); see also Lombardo, 594 U.S. at 467 (listing as a factor: “the relationship between the need for the use of force and the amount of force used” (quoting Kingsley, 576 U.S. at 397));

        2.        “whether ‘less intrusive alternatives’ were available to law enforcement,” Seidner, 39 F.4th at 599; see Nehad, 929 F.3d at 1138 (listing as a factor: “‘the availability of alternative methods of capturing or subduing a suspect” (quoting Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir. 2005))); see alsoLombardo, 594 U.S. at 467 (listing as a factor: “any effort made by the officer to temper or to limit the amount of force” (quoting Kingsley, 576 U.S. at 397)); Nehad, 929 F.3d at 1138 (“Police need not employ the least intrusive means available; they need only act within the range of reasonable conduct.”); Rice, 989 F.3d at 1124 (“officers ‘need not avail themselves of the least intrusive means of responding to an exigent situation’”);

       2.       “the number of lives at risk” and the parties’ “relative culpability,” Mattos, 661 F.3d at 441 (quoting Scott, 550 U.S. at 384); see Williamson, 23 F.4th at 1153 (“Where an arrestee’s conduct risks the lives or safety of innocent bystanders, the court also considers her relative culpability under the second [Graham] factor.”);

        3.        whether the officers independently evaluated the situation when they arrived, seeRice, 989 F.3d at 1122 (“[O]fficers have a duty to independently evaluate a situation when they arrive, if they have an opportunity to do so.”);

       4.        whether the individual “was given ‘proper warnings’ before force was used,” Seidner, 39 F.4th at 599 (quoting Rice, 989 F.3d at 1122); see Nehad, 929 F.3d at 1137 (“Whether an officer warned a suspect that failure to comply with the officer’s commands would result in the use of force is another relevant factor in an excessive force analysis.”); see also Estate of Aguirre, 29 F.4th at 628 (“Before using deadly force, law enforcement must, ‘where feasible,’ issue a warning.” (quoting Garner, 471 U.S. at 11-12));

      5.         whether the officers were responding to a domestic violence disturbance, see George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013) (“Domestic violence situations are ‘particularly dangerous’ because ‘more officers are killed or injured on domestic violence calls than on any other type of call.’” (quoting Mattos, 661 F.3d at 450));

      6.       “whether it should have been apparent to officers that the person they used force against was emotionally disturbed,” Tabares v. City of Huntington Beach, 988 F.3d 1119, 1126 (9th Cir. 2021) (quoting Glenn v. Washington County, 673 F.3d 864, 872 (9th Cir. 2011)); seeCrawford v. City of Bakersfield, 944 F.3d 1070, 1078 (9th Cir. 2019) (“[W]hether the suspect has exhibited signs of mental illness is one of the factors the court will consider in assessing the reasonableness of the force used.”);

       7.        where “an officer’s particular use of force is based on a mistake of fact, . . . whether a reasonable officer would have or should have accurately perceived that fact,” Nehad, 929 F.3d at 1133 (emphasis in original); Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011) (“[U]nder Graham, whether the mistake was an honest one is not the concern, only whether it was a reasonable one”); Napouk, 123 F.4th at 916 (concluding no rational jury could find officers’ mistake of fact was unreasonable where no facts “suggest[ed] circumstances by which the officers should have known the object, which was made to look like a knife, was not actually a knife”).

 

         8.         whether the police officer failed “to identify himself or herself as such,” Nehad, 929 F.3d at 1138;

       9.       when the use of deadly force is at issue, whether the officer has probable cause to believe that the individual poses a significant threat of death or serious physical injury to the officer or others, see Tabares, 988 F.3d at 1126 (“Under federal law, deadly force can be reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” (internal quotation marks omitted) (quoting Garner, 471 U.S. at 3)); see also Zion v. County of Orange, 874 F.3d 1072, 1076 (9th Cir. 2017) (“use of deadly force against a non-threatening suspect is unreasonable” (citing Garner, 471 U.S. at 11–12)))); Villanueva v. California, 986 F.3d 1158 (9th Cir. 2021) (holding that an officer who shoots at a slow-moving car when the officer can easily step out of the way violates the Fourth Amendment); and

       10.       when deadly force is at issue, how quickly the officer used deadly force after encountering the individual, see A. K. H v. City of Tustin, 837 F.3d 1005, 1012 (9th Cir. 2016) (determining that “perhaps most important” was that the officer at issue “escalated to deadly force very quickly”).

            The jury must consider “the type and amount of force,” Seidner, 39 F.4th at 596, which may be quantified. “Some uses of force can be quantified categorically. The best example is shooting a firearm, which by definition is ‘deadly force’: force that ‘creates a substantial risk of causing death or serious bodily injury.’” Id. “Most often, however, quantifying a particular use of force requires consideration of the ‘specific factual circumstances’ surrounding the event.” Id. “For example, [the Ninth Circuit] has classified deployment of a police dog as both a severe use of force and a moderate use of force depending on the suspect’s condition when the dog was ordered to attack, how long the attack lasted, and whether the dog was within its handler’s control.” Id. See also Rosenbaum v. City of San Jose, 107 F.4th 919, 922 (9th Cir. 2024) (holding that whether officers acted reasonably in permitting a police dog to hold a bite for 20 seconds after a suspect had fully surrendered and was under officer control presents a triable question to be decided by a jury).

           Similarly, “physical contact like hitting and shoving” and “roadblocks” are each “a type of force that must be quantified in reference to the surrounding circumstances.” Id. at 597. In Seidner, the Ninth Circuit held that an officer who used his patrol car to block a suspect fleeing on his bicycle had used “intermediate force,” defined as “force capable of inflicting significant pain and causing serious injury.” Id. at 599. The court declined to create “a blanket rule that using a vehicle to block the path of a quickly moving cyclist, without allowing sufficient distance for the cyclist to avoid a collision, constitutes deadly force,” because “[n]ot all roadblocks used [to stop cyclists] present the same level of risk, and the extent of the ‘risk of harm and the actual harm experienced’ are essential inquiries in determining whether an officer’s actions were reasonable under the Fourth Amendment.” Id.

             If deadly force is used, it is excessive unless the officer has “probable cause to believe that the suspect poses a significant threat of death or serious physical injury.” Garner, 471 U.S. at 3. By contrast, “the use of intermediate force must be justified by more than ‘a minimal interest’ held by the government.” Seidner, 39 F.4th at 600. “[A] suspect’s previous violent conduct does not justify non-trivial force where the suspect poses no immediate safety threat.” Andrews, 35 F.4th at 719.

             The first Graham factor, the “severity of the crime at issue,” should be modified as appropriate when officers are acting in a “community caretaking capacity” rather than to counter crime. Ames v. King County, 846 F.3d 340, 349 (9th Cir. 2017). In such circumstances, “the better analytical approach” focuses the inquiry on the seriousness of the situation that gives rise to the community-caretaking function. See id. Also, with respect to the severity-of-the-crime Graham factor, the factor slightly weighs in favor of defendant officers who used force when the plaintiff was not involved in a crime but nevertheless had information useful to address an unfolding emergency of a threatened school shooting. Bernal v. Sacramento Cnty. Sheriff’s Dep’t, 73 F.4th 678, 694 (9th Cir. 2023) (citing Ames, 846 F.3d at 349). In Sabbe v. Washington County Board of Commissioners, 84 F.4th 807, 819-25 (9th Cir. 2023), the Ninth Circuit applied the Graham factorsto law enforcement’s use of an armored personnel carrier, which weighs several times as much as a typical police cruiser, to collide with a suspect’s pickup in the hope of stopping it.  “Because a reasonable jury could decide that Sabbe did not pose an imminent threat to the officers or to others at that point, and that the balance of the other factors also favors Plaintiff, a jury could decide that the second PIT maneuver constituted the use of excessive force within the meaning of the Fourth Amendment.” Sabbe, 84 F.4th at 825..See also Hyer v. City and County of Honolulu, 118 F.4th 1044, 1061 (9th Cir. 2024) (in assessing the severity of the crime at issue–which is the first of the three primary Graham factors for determining the strength of the government’s interests–the courts look at whether the circumstances of the case warrant the conclusion that the suspect was a particularly dangerous criminal or that his offense was especially egregious, which may entail consideration of, first, the time that had elapsed between the alleged crimes, and second, the fact that the crimes were not the reason the police initially sought to apprehend the suspect). 

   It is not error for a trial court to decline to single out one factor in the reasonableness inquiry, when the instructions properly charge the jury to consider all of the circumstances that confronted the officer. See Lam v. City of San Jose, 869 F.3d 1077, 1087 (9th Cir. 2017) (affirming district court declining to give an instruction as to the officers’ “bad tactics”). It is not error for a trial court to decline to instruct explicitly on the availability of “alternative courses of action” when the instructions as a whole “fairly and adequately cover[ed] the issues presented.” Brewer v. City of Napa, 210 F.3d 1093, 1096-97 (9th Cir. 2000). 

In County of Los Angeles v. Mendez, 581 U.S. 420, 427 (2017), the Supreme Court rejected the Ninth Circuit’s “provocation rule” and abrogated Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002). The provocation rule had permitted a law enforcement officer to be held responsible for an otherwise reasonable use of force when the officer intentionally or recklessly provoked a violent confrontation through a warrantless entry that was itself an independent Fourth Amendment violation. 

 

Revised March 2025

            Under the Sixth Amendment, a criminal defendant has the right to have compulsory process for obtaining witnesses in his or her favor. This right includes both the right to offer the testimony of witnesses, and to compel their attendance, if necessary. The plaintiff asserts that the defendant interfered with this right and caused a favorable witness not to testify in the plaintiff’s trial.  

            To prove that the defendant unlawfully interfered with the plaintiff’s right to present testimony, the plaintiff must prove by a preponderance of the evidence:  

First, that the defendant’s conduct substantially interfered with the plaintiff’s witness;  

Second, that the defendant’s conduct caused the witness not to testify; and  

Third, that the witness’ testimony would have been favorable and material.  

            Testimony is material if it would have been sufficient to cast doubt on the government’s case. 

            [Testimony could have been material to the plaintiff’s trial even if the plaintiff was not convicted.]

Comment 

            This instruction is based on Park v. Thompson, 851 F.3d 910 (9th Cir. 2017). As discussed in Park, the Ninth Circuit has not yet decided what the appropriate standard is to satisfy the causation element of this claim. See id. at 921-22 (comparing the various circuit court tests, including “plausible showing,” “plausible nexus,” “but for,” and “decisive factor”). Although the Committee recognizes that trial courts may need to instruct juries regarding the standard for proving causation, it takes no position on the appropriate test pending further guidance from the Ninth Circuit or the Supreme Court.

Revised November 2024

As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the Eighth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].  

            First, the defendant used excessive and unnecessary force under all of the circumstances; 

Second, the defendant acted maliciously and sadistically for the purpose of causing harm, and not in a good faith effort to maintain or restore discipline; and 

            Third, the act[s] of the defendant caused harm to the plaintiff. 

            In determining whether these three elements have been met in this case, consider the following factors:           

            When the prisoner claims unconstitutional conditions of confinement, including inadequate medical care, use Instruction 9.27 (Particular Rights—Eighth Amendment—Convicted Prisoner’s Claim re Conditions of Confinement/Medical Care), which sets out the applicable deliberate indifference standard. 

            The Ninth Circuit has held that failing to give a jury deference instruction based on the general principles outlined in Bell was an error. Norwood, 591 F.3d at 1066-67 (“Prison officials are entitled to deference whether a prisoner challenges excessive force or conditions of confinement.”). In subsequent cases, the Ninth Circuit explained that a deference instruction should be given only where both of the conditions in Bell were present: first, the prison officials adopted and executed “policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security,” Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018) (quoting Bell, 441 U.S. at 547), and second, the record did not contain “substantial evidence showing [that the prison’s] policies are an unnecessary or unjustified response to problems of jail security.” Id. (quoting Florence, 566 U.S. at 323); see also Fierro v. Smith, 39 F.4th 640, 648 (9th Cir. 2022) (restating the rule that “two conditions” inform whether the deference instruction should be given when prisoners assert Eighth Amendment claims challenging their treatment in prison, namely “whether the treatment the prisoner challenges (1) was provided pursuant to a security-based policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to security needs”). 

In light of the two Bell conditions, the Ninth Circuit has explained the contours of giving a deference instruction in different scenarios. The plaintiff bears the burden of producing “substantial evidence” in the record that the two conditions are not met. Shorter, 895 F.3d at 1183 (“In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to [security] considerations courts should ordinarily defer to their expert judgment in such matters” (citing Block v. Rutherford, 468 U.S. 576, 584-85 (1984)). If the plaintiff has failed to carry this burden, or if the parties do not dispute that both Bellconditions are met, the trial court must give a jury the deference instruction. Fierro, 39 F.4th at 648; Norwood, 591 F.3d at 1067. Where the parties agree that one condition is met and one is absent, or that both conditions are absent, then the trial court may not give the jury deference instruction. Fierro, 39 F.4th at 648. 

In cases involving the denial of medical care to prisoners, which highlight Bell’s first condition (whether the policy or procedure addressed the need for prison security), the deference instruction should not be given “unless a party’s presentation of the case draws a plausible connection between a security-based policy or practice and the challenged medical care decision.” Chess v. Dovey, 790 F.3d 961, 972 (9th Cir. 2015); see also Shorter, 895 F.3d at 1184 (holding that “the [jury deference] instruction may be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy”); Coston v. Nangalama, 13 F.4th 729, 734 (9th Cir. 2021) (holding, in a medical care case, that the deference instruction should not have been given because, among other things, defendants “did not draw a plausible connection between a security-based policy or practice and the challenged decision to terminate [defendant’s] morphine prescription without tapering”). 

In a case highlighting Bell’s second condition (whether there was substantial evidence that prison officials had exaggerated their response), a deference instruction was not appropriate when the record contained substantial evidence that the jail’s search practice “was an unnecessary, unjustified, and exaggerated response to jail officials’ need for prison security.” Shorter, 895 F.3d at 1184 (stating that “jail officials concede[d] that there was no legitimate penological purpose for shackling mentally ill, virtually unclothed, female pretrial detainees to their cell doors for hours at a time”). 

Finally, in some cases, whether or not to give deference to prison officials should be left to the jury to decide. Coston, 13 F.4th 735. If the plaintiff offered substantial evidence that the prison official’s action “was not provided pursuant to a security-based policy or practice,” and the policy at issue was “an unnecessary, unjustified, or exaggerated response,” but in response the prison adduced substantial evidence that the prison official’s “actions were (1) taken because of a security-based policy or practice and (2) necessary, justified, and not exaggerated,” Coston, 13 F.4th at 735, then “it might be appropriate to instruct the jury that ‘whether to give deference to prison officials [is] left to the jury to decide.’” Fierro, 39 F.4th at 648-49 (citing Coston, 13 F.4th at 735). 

This framework also applies to pretrial detainees challenging use of force and other conditions of confinement. See Fierro, 39 F.4th 648. n.6 (“This framework also applies to pretrial detainees challenging their conditions of confinement under the Fourteenth Amendment.”). A court must also account for the “legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained,” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security.” Kingsley, 576 U.S. at 397 (quoting Bell v. Wolfish, 441 U.S. at 540). See also Bell v. Williams, 108 F.4th 809, 828 (9th Cir. 2024) (approving instructing the jury on deference owed to jail’s security interests for pretrial detainee’s claims under the ADA and Rehabilitation Act: “consider a detention facility's legitimate correctional interests, and whether there is a valid, rational connection between the action taken and the legitimate and neutral governmental interest put forward to justify it.”).

The Eighth Amendment applies equally to convicted prisoners who are inside the walls of a penal institution and convicted prisoners, such as escapees, who are outside the walls of a penal institution. See Hughes v. Rodriguez, 31 F.4th 1211, 1220-21 (9th Cir. 2022).        

           As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the Eighth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].  

            Under the Eighth Amendment, a convicted prisoner has the right to be free from “cruel and unusual punishments.” This includes the right to [specify particular constitutional interest].  To prove the defendant deprived the plaintiff of this right, the plaintiff must prove the following additional elements by a preponderance of the evidence:    

             First, [the plaintiff faced a substantial risk of serious harm] [the plaintiff faced a serious medical need];  

Second, the defendant was deliberately indifferent to that [risk] [medical need], that is, the defendant knew of it and disregarded it by failing to take reasonable measures to address it; and  

            Third, the [act[s]] [failure to act] of the defendant caused harm to the plaintiff.  

            “Deliberate indifference” is the conscious choice to disregard the consequences of one’s acts or omissions.       

              [When the defendant lacks authority over budgeting decisions, the issue of whether a prison official met [his] [her] [other pronoun] duties to an inmate under the Eighth Amendment must be considered in the context of the personnel, financial and other resources available to the defendant or which [he] [she] [other pronoun] could reasonably obtain.]

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and when the plaintiff is a convicted prisoner and claims the defendants’ deliberate indifference to a substantial risk of serious harm or serious medical needs.   

            When a convicted prisoner claims unconstitutional use of force, use Instruction 9.26 (Particular Rights—Eighth Amendment—Convicted Prisoner’s Claim of Excessive Force).  When a pretrial detainee claims unconstitutional use of force, see Instruction 9.29 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Excessive Force).  When a pretrial detainee claims unconstitutional failure to protect, use Instruction 9.31 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Failure to Protect).   

           The Eighth Amendment imposes certain duties on prison officials: (1) to provide humane conditions of confinement; (2) to ensure that inmates receive adequate food, clothing, shelter, and medical care; and (3) to “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). An Eighth Amendment claim based on deliberate indifference must satisfy both an objective and a subjective component test. Farmer, 511 U.S. at 834. A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’ Id. at 837; accord Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (“The inmates must demonstrate that they were confined under conditions posing a risk of ‘objectively, sufficiently serious’ harm and that the officials had a ‘sufficiently culpable state of mind’ in denying the proper medical care. Thus, there is both an objective and a subjective component to an actionable Eighth Amendment violation.” (citation omitted)) “Deliberate indifference has both subjective and objective components. A prison official must ‘be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and . . .  must also draw the inference.’” Labatad v. Corr. Corp. of Am., 714 F.3d 1155, 1160 (9th Cir. 2013) (quoting Farmer, 511 U.S. at 837); Hampton v. California, 83 F.4th 754, 767 (9th Cir. 2023) (stating the plaintiff alleged a claim of “a conscious disregard to the health and safety” when the defendants “did not take precautions to avoid transferring COVID-positive inmates to San Quentin or to decrease the likelihood that COVID-19 would spread” once the inmates arrived).  

            In Estelle v. Gamble, the Supreme Court held that a prison official’s deliberate indifference to serious medical needs violates the Eighth Amendment. 429 U.S. 97, 106 (1976). An Eighth Amendment claim for inadequate medical care requires the plaintiff to show that an official acted with deliberate indifference to a serious medical need, that is, that “the course of treatment the official chose was medically unacceptable under the circumstances and that the official chose this course in conscious disregard of an excessive risk to the plaintiff's health.” Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 2019). Accepted standards of care and practice within the medical community are highly relevant in determining what care is medically acceptable and unacceptable. Id. at 786 (explaining transgender prisoner established that the course of treatment chosen by the Idaho Department of Corrections and its medical provider to alleviate her gender dysphoria was medically unacceptable under the circumstances.) A serious medical need is present, when, for example, the “failure to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Clement, 298 F.3d at 904 (citations omitted). A serious medical need includes the “existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Russell v. Lumitap, 31 F.4th 729, 739 (9th Cir. 2022) (quoting Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).For example, a prisoner who suffered from a cataract in one eye but did not suffer from pain and retained good vision in the other eye, has a serious medical need for cataract removal surgery because “his monocular blindness caused him physical injury.” Colwell, 763 F.3d at 1067.  

            Denying, delaying, or intentionally interfering with medical treatment can violate the constitution. Stewart v. Aranas, 32 F.4th 1192, 1195 (9th Cir. 2022) (quoting Colwell, 763 F.3d at 1066). In Stewart, years-long denial and delay of medical treatment of the plaintiff’s enlarged prostate resulted in long-term issues including kidney disease and erectile dysfunction, where the prisoner’s condition sharply deteriorated during his last few years at the correctional facility.  Stewart, 32 F.4th at 1195-96 (noting that “[a]t some point ‘wait and see’ becomes deny and delay.”) 

Appropriate mental health care is also mandated by the Eighth Amendment. “[T]he Eighth Amendment’s prohibition against cruel and unusual punishment requires that prisons provide mental health care that meets ‘minimum constitutional requirements.’ Disability Rights Montanav. Batista, 930 F.3d 1090, 1097 (9th Cir. 2019), quoting Brown v. Plata, 563 U.S. 493, 510 (2011). 

            Certain conditions of confinement may violate the Eighth Amendment. For example, excess noise and prison conditions may deprive inmates of “identifiable human need[s],” such as sleep. See Wilson v. Seiter, 501 U.S. 294, 304 (1991); accord Rico v. Ducart, 980 F.3d 1292, 1299 (9th Cir. 2020) (addressing the lawfulness of officer-created noise while conducting court-ordered suicide-prevention welfare checks in a maximum security facility). While an inmate does not have a right to a quiet environment, an inmate has a right to an environment that is “reasonably free” from constant, excessive noise caused by other inmates. Keenan v Hall, 83 F.3d 1083, 1090–91 (9th Cir. 1996), amended by, 135 F.3d 1318 (9th Cir. 1998) (holding that an inmate had stated a separate Eighth Amendment claim for being subjected to constant illumination with no legitimate penological purpose). An inmate has the right to outdoor exercise and personal hygiene. Keenan, 83 F.3d at 1089-91 (noting that “[d]eprivation of outdoor exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term segregation” and that “[i]ndigent inmates have the right to personal hygiene supplies such as toothbrushes and soap”); Polanco v. Diaz, 76 F.4th 918, 929 (9th Cir. 2023) (describing a “textbook case of deliberate indifference: Defendants were repeatedly admonished by experts that their COVID-19 policies were inadequate, yet they chose to disregard those warnings”). In addition, while adequate food is a basic human need protected by the Eighth Amendment (see Keenan, 83 F.3d at 1091), “[t]he Eighth Amendment ‘requires only that prisoners receive food that is adequate to maintain health.’” Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1259 (9th Cir. 2016) (citation omitted). Some conditions of confinement may establish an Eighth Amendment violation “in combination” when each alone would not suffice, but only when they have a combined effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise—for example, a low cell temperature at night combined with a failure to issue blankets. Wilson, 501 U.S. at 304-05. 

           The Ninth Circuit rejected the argument that a plaintiff need only prove the defendant’s constructive knowledge of a substantial risk of serious harm. Harrington v. Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015) (noting, however, that the “obviousness of a risk may be used to prove subjective knowledge”). With respect to claims arising under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), a plaintiff must show the municipality’s deliberate indifference under an “objective inquiry.” Castro v. County of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en banc). “[T]his objective standard necessarily applied to municipalities for the practical reason that government entities, unlike individuals, do not themselves have states of mind[.]” Id.

           Whether a prison official met his or her duties to an inmate under the Eighth Amendment must be considered in the context of the personnel, financial, and other resources available to the official or that he or she could reasonably obtain, at least when the official lacks authority over budgeting decisions. Peralta v. Dillard, 744 F.3d 1076, 1083-84 (9th Cir. 2014) (en banc) (holding that weighing the resources available for prison dental care and the security concerns related to providing care in prison was appropriate in determining if the defendants acted with deliberate indifference). 

             In the appropriate case, the trial court may instruct the jury that in considering the elements, it should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison. Bell v. Wolfish, 441 U.S. 520, 547 (1979). Courts “must defer to the judgment of correctional officials unless the record contains substantial evidence showing [that] their policies are an unnecessary or unjustified response to problems of jail security.” Florence v. Bd. of Chosen Freeholders Cnty. of Burlington, 566 U.S. 318, 322-23 (2012). “It is well established that judges and juries must defer to prison officials’ expert judgments.” Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010). 

             The Ninth Circuit has held that failing to give a jury deference instruction based on the general principles outlined in Bell was an error. Norwood, 591 F.3d at 1066-67 (“Prison officials are entitled to deference whether a prisoner challenges excessive force or conditions of confinement.”). In subsequent cases, the Ninth Circuit explained that a deference instruction should be given only where both of the conditions in Bell were present: first, the prison officials adopted and executed “policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security,” Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018)  (quoting Bell, 441 U.S. at 547), and second, the record did not contain “substantial evidence showing [that the prison’s] policies are an unnecessary or unjustified response to problems of jail security.” Id. (quoting Florence, 566 U.S. at 323); see also Fierro v. Smith, 39 F.4th 640, 648 (9th Cir. 2022) (restating the rule that “two conditions” inform whether the deference instruction should be given when prisoners assert Eighth Amendment claims challenging their treatment in prison, namely “whether the treatment the prisoner challenges (1) was provided pursuant to a security-based policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to security needs”). 

In light of the two Bell conditions, the Ninth Circuit has explained the contours of giving a deference instruction in different scenarios. The plaintiff bears the burden of producing “substantial evidence” in the record that the two conditions are not met. Shorter, 895 F.3d at 1183 (“In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to [security] considerations courts should ordinarily defer to their expert judgment in such matters” (citing Block v. Rutherford, 468 U.S. 576, 584-85 (1984)). If the plaintiff has failed to carry this burden, or if the parties do not dispute that both Bell conditions are met, the trial court must give a jury the deference instruction. Fierro, 39 F.4th at 648; Norwood, 591 F.3d at 1067. Where the parties agree that one condition is met and one is absent, or that both conditions are absent, then the trial court may not give the jury deference instruction. Fierro, 39 F.4th at 648. 

In cases involving the denial of medical care to prisoners, which highlight Bell’s first condition (whether the policy or procedure addressed the need for prison security), the deference instruction should not be given “unless a party’s presentation of the case draws a plausible connection between a security-based policy or practice and the challenged medical care decision.” Chess v. Dovey, 790 F.3d 961, 972 (9th Cir. 2015); see alsoShorter, 895 F.3d at 1184 (holding that “the [jury deference] instruction may be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy”); Coston v. Nangalama, 13 F.4th 729, 734 (9th Cir. 2021) (holding, in a medical care case, that the deference instruction should not have been given because, among other things, defendants “did not draw a plausible connection between a security-based policy or practice and the challenged decision to terminate [defendant’s] morphine prescription without tapering”). 

In a case highlighting Bell’s second condition (whether there was substantial evidence that prison officials had exaggerated their response), a deference instruction was not appropriate when the record contained substantial evidence that the jail’s search practice “was an unnecessary, unjustified, and exaggerated response to jail officials’ need for prison security.” Shorter, 895 F.3d at 1184 (stating that “jail officials concede[d] that there was no legitimate penological purpose for shackling mentally ill, virtually unclothed, female pretrial detainees to their cell doors for hours at a time”). 

            Finally, in some cases, whether or not to give deference to prison officials should be left to the jury to decide. Coston, 13 F.4th 735. If the plaintiff offered substantial evidence that the prison official’s action “was not provided pursuant to a security-based policy or practice,” and the policy at issue was “an unnecessary, unjustified, or exaggerated response,” but in response the prison adduced substantial evidence that the prison official’s “actions were (1) taken because of a security-based policy or practice and (2) necessary, justified, and not exaggerated,” Coston, 13 F.4th at 735, then “it might be appropriate to instruct the jury that ‘whether to give deference to prison officials [is] left to the jury to decide.’” Fierro, 39 F.4that 648-49 (citing Coston, 13 F.4th at 735). 

This framework also applies to pretrial detainees challenging use of force and other conditions of confinement. See Fierro, 39 F.4th 648. n.6 (“This framework also applies to pretrial detainees challenging their conditions of confinement under the Fourteenth Amendment.”). A court must also account for the “legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained,” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security.” Kingsley, 576 U.S. at 397 (quoting Bell v. Wolfish, 441 U.S. at 540). See also Bell v. Williams, 108 F.4th 809, 828 (9th Cir. 2024) (approving instructing the jury on deference owed to jail’s security interests for pretrial detainee’s claims under the ADA and Rehabilitation Act: “consider a detention facility's legitimate correctional interests, and whether there is a valid, rational connection between the action taken and the legitimate and neutral governmental interest put forward to justify it.”). 

            The Ninth Circuit also addressed the relationship between the principle of deference to prison officials and strict scrutiny in a case which included a race discrimination equal protection claim. When a prisoner case includes an equal protection claim involving strict scrutiny, “prison security and deference to prison authorities do not trump” the narrow tailoring required for equal protection claims. See Harrington, 785 F.3d at 1306. Indeed, “[p]risoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). When a prisoner brings an equal protection claim, “the plaintiff must prove by a preponderance of the evidence that defendants . . . acted with an intent or purpose to discriminate against the plaintiff, or against a class of which the plaintiff is a member, based on his race.” Harrington, 785 F.3d at 1305. In this context, “[i]ntentional discrimination means that a defendant acted at least in part because of the plaintiff’s race.” Id. 

 The state must show that its race-based action is “necessary to further a compelling governmental interest” and is “narrowly tailored to serve such a governmental interest.” Id. “The necessities of prison security and discipline, are a compelling government interest justifying only those uses of race that are narrowly tailored to address those necessities.” Johnson v. California, 543 U.S. 499, 512 (2005) (internal quotation omitted); Harrington, 785 F.3d at 1307 (“[T]he court also erred by allowing the jury to defer generally to officials when considering [the plaintiff’s] equal protection claim, rather than assessing whether the challenged race-based actions were narrowly tailored.”).

Revised November 2024

          As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant deprived the plaintiff of particular rights under the United States Constitution.  In this case, the plaintiff alleges the defendant deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the Eighth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim]. 

             Under the Eighth Amendment, a convicted prisoner has the right to be free from “cruel and unusual punishments.”  To prove the defendant deprived the plaintiff of this Eighth Amendment right, the plaintiff must prove the following elements by a preponderance of the evidence: 

             First, the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined;

             Second, those conditions put the plaintiff at substantial risk of suffering serious harm;

             Third, the defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and

             Fourth, by not taking such measures, the defendant caused the plaintiff’s injuries.

             With respect to the third element, the defendant’s conduct must be both objectively unreasonable and done with a subjective awareness of the risk of harm. In other words, the defendant must have known facts from which an inference could be drawn that there was a substantial risk of serious harm, and the defendant must have actually drawn that inference.  

  Comment 

             The Eighth Amendment imposes on prison officials a duty to “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). This includes a duty to protect prisoners from violence at the hands of other prisoners. Id. at 833. See also Cortez v. Skol, 776 F.3d 1046, 1050-53 (9th Cir. 2015) (holding that the mother of prisoner who suffered severe brain damage following an attack by two other inmates raised genuine issues on Eighth Amendment claim in light of evidence that one guard escorted three hostile, half-restrained, high-security prisoners through isolated prison passage in contravention of prison policy and practice). “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer, 511 U.S. at 828 (citing Wilson v. Seiter, 501 U.S. 294 (1991); and Estelle v. Gamble, 429 U.S. 97 (1976)). “While Estelle establishes that deliberate indifference entails something more than mere negligence, the cases are also clear that it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id. at 835.

             In Farmer, the Supreme Court held that an Eighth Amendment claim based on deliberate indifference must satisfy both an objective and a subjective component test. Farmer, 511 U.S. at 834. “The Eighth Amendment imposes a duty on prison officials to protect inmates from violence at the hands of other inmates. A prison official violates this duty when two requirements are met. First, objectively viewed, the prison official’s act or omission must cause a substantial risk of serious harm. Second, the official must be subjectively aware of that risk and act with deliberate indifference to inmate health or safety. In other words, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Cortez, 776 F.3d at 1050 (9th Cir. 2015) (holding that an officer leading three inmates through a prison was deliberately indifferent to the risk that the inmates would be violent with one another, citing evidence that the officer knew about (1) the hostility between the inmates, (2) the inmate victim’s protective custody status, and (3) a prison policy requiring leg restraints when moving detention unit inmates) (internal quotations and citations omitted). See also Castro v. County of Los Angeles, 833 F.3d. 1060, 1068, 1070-71 (9th Cir. 2016) (en banc) (distinguishing a convicted prisoner’s claim of failure to protect under the Eighth Amendment from pretrial detainee’s claim under Fourteenth Amendment, and noting that in the prison context, “the official must demonstrate a subjective awareness of the risk of harm”); but see Kingsley v. Hendrickson, 576 U.S. 389, 402 (2015) (“We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.”).     

In the appropriate case, the trial court may instruct the jury that in considering the elements, it should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison. Bell v. Wolfish, 441 U.S. 520, 547 (1979). Courts “must defer to the judgment of correctional officials unless the record contains substantial evidence showing [that] their policies are an unnecessary or unjustified response to problems of jail security.” Florence v. Bd. of Chosen Freeholders Cnty. of Burlington, 566 U.S. 318, 322-23 (2012). “It is well established that judges and juries must defer to prison officials’ expert judgments.” Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010).

           The Ninth Circuit has held that failing to give a jury deference instruction based on the general principles outlined in Bell was an error. Norwood, 591 F.3d at 1066-67 (“Prison officials are entitled to deference whether a prisoner challenges excessive force or conditions of confinement.”). In subsequent cases, the Ninth Circuit explained that a deference instruction should be given only where both of the conditions in Bell were present: first, the prison officials adopted and executed “policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security,” Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018) (quoting Bell, 441 U.S. at 547), and second, the record did not contain “substantial evidence showing [that the prison’s] policies are an unnecessary or unjustified response to problems of jail security.” Id. (quoting Florence, 566 U.S. at 323); see also Fierro v. Smith, 39 F.4th 640, 648 (9th Cir. 2022) (restating the rule that “two conditions” inform whether the deference instruction should be given when prisoners assert Eighth Amendment claims challenging their treatment in prison, namely “whether the treatment the prisoner challenges (1) was provided pursuant to a security-based policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to security needs”). 

            In light of the two Bell conditions, the Ninth Circuit has explained the contours of giving a deference instruction in different scenarios. The plaintiff bears the burden of producing “substantial evidence” in the record that the two conditions are not met. Shorter, 895 F.3d at 1183 (“In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to [security] considerations courts should ordinarily defer to their expert judgment in such matters” (citing Block v. Rutherford, 468 U.S. 576, 584-85 (1984)). If the plaintiff has failed to carry this burden, or if the parties do not dispute that both Bell conditions are met, the trial court must give a jury the deference instruction. Fierro, 39 F.4th at 648; Norwood, 591 F.3d at 1067. Where the parties agree that one condition is met and one is absent, or that both conditions are absent, then the trial court may not give the jury deference instruction. Fierro, 39 F.4th at 648. 

            In cases involving the denial of medical care to prisoners, which highlight Bell’s first condition (whether the policy or procedure addressed the need for prison security), the deference instruction should not be given “unless a party’s presentation of the case draws a plausible connection between a security-based policy or practice and the challenged medical care decision.” Chess v. Dovey, 790 F.3d 961, 972 (9th Cir. 2015); see also Shorter, 895 F.3d at 1184 (holding that “the [jury deference] instruction may be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy”); Coston v. Nangalama, 13 F.4th 729, 734 (9th Cir. 2021) (holding, in a medical care case, that the deference instruction should not have been given because, among other things, defendants “did not draw a plausible connection between a security-based policy or practice and the challenged decision to terminate [defendant’s] morphine prescription without tapering”).

            In a case highlighting Bell’s second condition (whether there was substantial evidence that prison officials had exaggerated their response), a deference instruction was not appropriate when the record contained substantial evidence that the jail’s search practice “was an unnecessary, unjustified, and exaggerated response to jail officials’ need for prison security.” Shorter, 895 F.3d at 1184 (stating that “jail officials concede[d] that there was no legitimate penological purpose for shackling mentally ill, virtually unclothed, female pretrial detainees to their cell doors for hours at a time”). 

           Finally, in some cases, whether or not to give deference to prison officials should be left to the jury to decide. Coston, 13 F.4th 735. If the plaintiff offered substantial evidence that the prison official’s action “was not provided pursuant to a security-based policy or practice,” and the policy at issue was “an unnecessary, unjustified, or exaggerated response,” but in response the prison adduced substantial evidence that the prison official’s “actions were (1) taken because of a security-based policy or practice and (2) necessary, justified, and not exaggerated,” Coston, 13 F.4th at 735, then “it might be appropriate to instruct the jury that ‘whether to give deference to prison officials [is] left to the jury to decide.’” Fierro, 39 F.4that 648-49 (citing Coston, 13 F.4th at 735).

Revised November 2024

As previously explained, the plaintiff has the burden to prove that the acts or failures to act of the defendant deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the Fourteenth Amendment to the Constitution when the defendant used excessive force against the plaintiff. 

            Under the Fourteenth Amendment, an officer may use only such force as is “objectively reasonable” under all of the circumstances. You must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight. Although the facts known to the officer are relevant to your inquiry, an officer’s subjective intent or motive is not relevant to your inquiry. 

To prove the defendant deprived the plaintiff of this Fourteenth Amendment right, the plaintiff must prove the following elements by a preponderance of the evidence: 

First, the defendant purposely or knowingly used force against the plaintiff; 

Second, the force used against the plaintiff was objectively unreasonable; and 

Third, the acts of the defendant caused harm to the plaintiff. 

In determining the objective reasonableness or unreasonableness of the force used, consider the following factors: 

(1) The relationship between the need for the use of force and the amount of force used; 

(2) The extent of the plaintiff’s injury; 

(3) Any effort made by the defendant to temper or to limit the amount of force; 

(4) The severity of the security problem at issue; 

(5) The threat reasonably perceived by the defendant; and 

(6) Whether the plaintiff was actively resisting. 

Comment 

Revised November 2024 

In Alexander v. Nguyen, 78 F.4th 1140, 1144 (9th Cir. 2023), the Ninth Circuit noted that “the law governing pretrial detainees’ claims of inadequate medical care and other dangerous conditions of confinement is still developing in the wake of the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015)[.]” The court added that under the third element discussed in the 2018 decision in Gordon, “[t]he plaintiff must ‘prove more than negligence but less than subjective intent—something akin to reckless disregard.’” Alexander, 78 F.4th at 1145 (stating that the “mere lack of due care by a state official is not enough to show a constitutional violation” under the Fourteenth Amendment) (quoting Gordon, 888 F.3d at 1125). The Fourth Amendment may also be applicable. 

In Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), the Supreme Court observed that it was an open question “whether the Fourth Amendment continues to provide individuals with protection against deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins[.]” But with regard to pre-arraignment custody, the Ninth Circuit held that the Fourth Amendment provides protection against the use of excessive force. Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996) (“We hold, therefore, that the Fourth Amendment sets the applicable constitutional limitations on the treatment of an arrestee detained without a warrant up until the time such arrestee is released or found to be legally in custody based upon probable cause for arrest.”).

In the appropriate case, the trial court may instruct the jury that in considering the elements, it should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison. Bell v. Wolfish, 441 U.S. 520, 547 (1979). Courts “must defer to the judgment of correctional officials unless the record contains substantial evidence showing [that] their policies are an unnecessary or unjustified response to problems of jail security.” Florence v. Bd. of Chosen Freeholders Cnty. of Burlington, 566 U.S. 318, 322-23 (2012). “It is well established that judges and juries must defer to prison officials’ expert judgments.” Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010). 

The Ninth Circuit has held that failing to give a jury deference instruction based on the general principles outlined in Bell was an error. Norwood, 591 F.3d at 1066-67 (“Prison officials are entitled to deference whether a prisoner challenges excessive force or conditions of confinement.”). In subsequent cases, the Ninth Circuit explained that a deference instruction should be given only where both of the conditions in Bell were present: first, the prison officials adopted and executed “policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security,”  Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018) (quoting Bell, 441 U.S. at 547), and second, the record did not contain “substantial evidence showing [that the prison’s] policies are an unnecessary or unjustified response to problems of jail security.” Id. (quoting Florence, 566 U.S. at 323); see also Fierro v. Smith, 39 F.4th 640, 648 (9th Cir. 2022) (restating the rule that “two conditions” inform whether the deference instruction should be given when prisoners assert Eighth Amendment claims challenging their treatment in prison, namely “whether the treatment the prisoner challenges (1) was provided pursuant to a security-based policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to security needs”). 

In light of the two Bell conditions, the Ninth Circuit has explained the contours of giving a deference instruction in different scenarios. The plaintiff bears the burden of producing “substantial evidence” in the record that the two conditions are not met. Shorter, 895 F.3d at 1183 (“In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to [security] considerations courts should ordinarily defer to their expert judgment in such matters” (citing Block v. Rutherford, 468 U.S. 576, 584-85 (1984)). If the plaintiff has failed to carry this burden, or if the parties do not dispute that both Bell conditions are met, the trial court must give a jury the deference instruction. Fierro, 39 F.4th at 648; Norwood, 591 F.3d at 1067. Where the parties agree that one condition is met and one is absent, or that both conditions are absent, then the trial court may not give the jury deference instruction. Fierro, 39 F.4th at 648. 

In cases involving the denial of medical care to prisoners, which highlight Bell’s first condition (whether the policy or procedure addressed the need for prison security), the deference instruction should not be given “unless a party’s presentation of the case draws a plausible connection between a security-based policy or practice and the challenged medical care decision.” Chess v. Dovey, 790 F.3d 961, 972 (9th Cir. 2015); see also Shorter, 895 F.3d at 1184 (holding that “the [jury deference] instruction may be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy”); Coston v. Nangalama, 13 F.4th 729, 734 (9th Cir. 2021) (holding, in a medical care case, that the deference instruction should not have been given because, among other things, defendants “did not draw a plausible connection between a security-based policy or practice and the challenged decision to terminate [defendant’s] morphine prescription without tapering”). 

            In a case highlighting Bell’s second condition (whether there was substantial evidence that prison officials had exaggerated their response), a deference instruction was not appropriate when the record contained substantial evidence that the jail’s search practice “was an unnecessary, unjustified, and exaggerated response to jail officials’ need for prison security.” Shorter, 895 F.3d at 1184 (stating that “jail officials concede[d] that there was no legitimate penological purpose for shackling mentally ill, virtually unclothed, female pretrial detainees to their cell doors for hours at a time”).  

            Finally, in some cases, whether or not to give deference to prison officials should be left to the jury to decide. Coston, 13 F.4th 735. If the plaintiff offered substantial evidence that the prison official’s action “was not provided pursuant to a security-based policy or practice,” and the policy at issue was “an unnecessary, unjustified, or exaggerated response,” but in response the prison adduced substantial evidence that the prison official’s “actions were (1) taken because of a security-based policy or practice and (2) necessary, justified, and not exaggerated,” Coston, 13 F.4th at 735, then “it might be appropriate to instruct the jury that ‘whether to give deference to prison officials [is] left to the jury to decide.’” Fierro, 39 F.4that 648-49 (citing Coston, 13 F.4th at 735). 

This framework also applies to pretrial detainees challenging use of force and other conditions of confinement. See Fierro, 39 F.4th 648. n. 6 (“This framework also applies to pretrial detainees challenging their conditions of confinement under the Fourteenth Amendment.”). A court must also account for the “legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained,” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security.” Kingsley, 576 U.S. at 397 (quoting Bell v. Wolfish, 441 U.S. at 540). See also Bell v. Williams, 108 F.4th 809, 828 (9th Cir. 2024) (approving instructing the jury on deference owed to jail’s security interests for pretrial detainee’s claims under the ADA and Rehabilitation Act: “consider a detention facility's legitimate correctional interests, and whether there is a valid, rational connection between the action taken and the legitimate and neutral governmental interest put forward to justify it.”).

 

            As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the Fourteenth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim]. Under the Fourteenth Amendment, a pretrial detainee has the right to be protected while in custody.   

To prove the defendant deprived the plaintiff of this right, the plaintiff must prove the following additional elements by a preponderance of the evidence: 

First, he defendant made an intentional decision regarding the conditions under which the plaintiff was confined;  

Second, those conditions put the plaintiff at substantial risk of suffering serious harm;  

Third, the defendant did not take reasonable available measures to abate or reduce that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and  

Fourth, by not taking such measures, the defendant caused the plaintiff’s injuries.   

            With respect to the third element, the defendant’s conduct must be objectively unreasonable.  

Comment

After the Supreme Court decided Kingsley v. Hendrickson, 576 U.S. 389 (2015), the Ninth Circuit decided Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc).  In Castro, the Ninth Circuit held that Castro, a pretrial detainee who was injured by an inmate while detained in a sobering cell, “had a due process right to be free from violence from other inmates.” Id. at 1067. The Ninth Circuit focused its discussion on the Fourteenth Amendment, but “neither Castro nor the majority claim[ed] that any other constitutional right [was] at issue.” Id. at 1067-70, 1084 (Ikuta, J., dissenting). Analogizing to the Supreme Court’s excessive force analysis in Kingsley, the Ninth Circuit in Castro approved the following elements for a pretrial detainee’s failure-to-protect claim under the Fourteenth Amendment:

(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable officer in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff’s injuries.

Id. at 1071.

           In the appropriate case, the trial court may instruct the jury that in considering the elements, it should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison. Bell v. Wolfish, 441 U.S. 520, 547 (1979). Courts “must defer to the judgment of correctional officials unless the record contains substantial evidence showing [that] their policies are an unnecessary or unjustified response to problems of jail security.” Florence v. Bd. of Chosen Freeholders Cnty. of Burlington, 566 U.S. 318, 322-23 (2012). “It is well established that judges and juries must defer to prison officials’ expert judgments.” Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010). 

           The Ninth Circuit has held that failing to give a jury deference instruction based on the general principles outlined in Bell was an error. Norwood, 591 F.3d at 1066-67 (“Prison officials are entitled to deference whether a prisoner challenges excessive force or conditions of confinement.”). In subsequent cases, the Ninth Circuit explained that a deference instruction should be given only where both of the conditions in Bell were present: first, the prison officials adopted and executed “policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security,” Shorter v. Baca, 895 F.3d 1176, 1183 (9th Cir. 2018) (quoting Bell, 441 U.S. at 547), and second, the record did not contain “substantial evidence showing [that the prison’s] policies are an unnecessary or unjustified response to problems of jail security.” Id. (quoting Florence, 566 U.S. at 323); see also Fierro v. Smith, 39 F.4th 640, 648 (9th Cir. 2022) (restating the rule that “two conditions” inform whether the deference instruction should be given when prisoners assert Eighth Amendment claims challenging their treatment in prison, namely “whether the treatment the prisoner challenges (1) was provided pursuant to a security-based policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to security needs”). 

            In light of the two Bell conditions, the Ninth Circuit has explained the contours of giving a deference instruction in different scenarios. The plaintiff bears the burden of producing “substantial evidence” in the record that the two conditions are not met. Shorter, 895 F.3d at 1183 (“In the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to [security] considerations courts should ordinarily defer to their expert judgment in such matters” (citing Block v. Rutherford, 468 U.S. 576, 584-85 (1984)). If the plaintiff has failed to carry this burden, or if the parties do not dispute that both Bellconditions are met, the trial court must give a jury the deference instruction. Fierro, 39 F.4th at 648; Norwood, 591 F.3d at 1067. Where the parties agree that one condition is met and one is absent, or that both conditions are absent, then the trial court may not give the jury deference instruction. Fierro, 39 F.4th at 648. 

            In cases involving the denial of medical care to prisoners, which highlight Bell’s first condition (whether the policy or procedure addressed the need for prison security), the deference instruction should not be given “unless a party’s presentation of the case draws a plausible connection between a security-based policy or practice and the challenged medical care decision.” Chess v. Dovey, 790 F.3d 961, 972 (9th Cir. 2015); see also Shorter, 895 F.3d at 1184 (holding that “the [jury deference] instruction may be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy”); Coston v. Nangalama, 13 F.4th 729, 734 (9th Cir. 2021) (holding, in a medical care case, that the deference instruction should not have been given because, among other things, defendants “did not draw a plausible connection between a security-based policy or practice and the challenged decision to terminate [defendant’s] morphine prescription without tapering”). 

            In a case highlighting Bell’s second condition (whether there was substantial evidence that prison officials had exaggerated their response), a deference instruction was not appropriate when the record contained substantial evidence that the jail’s search practice “was an unnecessary, unjustified, and exaggerated response to jail officials’ need for prison security.” Shorter, 895 F.3d at 1184 (stating that “jail officials concede[d] that there was no legitimate penological purpose for shackling mentally ill, virtually unclothed, female pretrial detainees to their cell doors for hours at a time”). 

            Finally, in some cases, whether or not to give deference to prison officials should be left to the jury to decide. Coston, 13 F.4th 735. If the plaintiff offered substantial evidence that the prison official’s action “was not provided pursuant to a security-based policy or practice,” and the policy at issue was “an unnecessary, unjustified, or exaggerated response,” but in response the prison adduced substantial evidence that the prison official’s “actions were (1) taken because of a security-based policy or practice and (2) necessary, justified, and not exaggerated,” Coston, 13 F.4th at 735, then “it might be appropriate to instruct the jury that ‘whether to give deference to prison officials [is] left to the jury to decide.’” Fierro, 39 F.4that 648-49 (citing Coston, 13 F.4th at 735). 

This framework also applies to pretrial detainees challenging use of force and other conditions of confinement. See Fierro, 39 F.4th 648. n. 6 (“This framework also applies to pretrial detainees challenging their conditions of confinement under the Fourteenth Amendment.”). A court must also account for the “legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained,” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are needed to preserve internal order and discipline and to maintain institutional security.” Kingsley, 576 U.S. at 397 (quoting Bell, 441 U.S. at 540). See also Bell v. Williams, 108 F.4th 809,828 (9th Cir. 2024) (approving instructing the jury on deference owed to jail’s security interests for pretrial detainee’s claims under the ADA and Rehabilitation Act: “consider a detention facility's legitimate correctional interests, and whether there is a valid, rational connection between the action taken and the legitimate and neutral governmental interest put forward to justify it.”). 

            The Fourth Amendment may also be applicable. In Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), the Supreme Court observed that it was an open question “whether the Fourth Amendment continues to provide individuals with protection against deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins.” But with regard to pre-arraignment custody, the Ninth Circuit held that the Fourth Amendment provides protection against the use of excessive force. Pierce v. Multnomah County, 76 F.3d 1032, 1043 (9th Cir. 1996) (“We hold, therefore, that the Fourth Amendment sets the applicable constitutional limitations on the treatment of an arrestee detained without a warrant up until the time such arrestee is released or found to be legally in custody based upon probable cause for arrest.”). 

            In Alexander v. Nguyen, 78 F.4th 1140, 1144 (9th Cir. 2023), the Ninth Circuit noted that “the law governing pretrial detainees’ claims of inadequate medical care and other dangerous conditions of confinement is still developing in the wake of the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015).” Alexander involved alleged failure to prevent violence among pretrial detainees. After Alexander was injured by another pretrial detainee, the defendant doctor evaluated the circumstances, consulted with others, and opted not to move Alexander. Less than two weeks later, the same pretrial detainee struck Alexander again. The Ninth Circuit concluded under Gordon that “[t]hough Alexander was, regrettably, attacked a second time, the evidence shows that [the defendant doctor’s] responses to both incidents were thorough and careful.” Alexander, 78 F.4th at 1145 (“[T]he benefit of hindsight from the fact that Alexander was attacked a second time [by the same pretrial detainee] does not show that [the defendant doctor’s] original decision was unreasonable.”). 

Revised November 2024

 Comment

I.          Introduction

             Parents and children possess a constitutionally protected liberty interest in companionship and society with each other. Smith v. City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc). This liberty interest is rooted in the Fourteenth Amendment, which states in relevant part that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. State interference with these liberty interests may give rise to a Fourteenth Amendment due process claim that is cognizable under 42 U.S.C. § 1983. Kelson v. City of Springfield, 767 F.2d 651, 654 (9th Cir. 1985), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)).   

The protected liberty interest is independently held by both parent and child. City of Fontana, 818 F.2d at 1418. A parent’s right includes a custodial interest (but only while the child is a minor), and a companionship interest (even after a child reaches the age of majority). Id. at 1419; see, e.g., Strandberg v. City of Helena, 791 F.2d 744, 748 n.1 (9th Cir. 1986) (recognizing that parents of deceased 22-year-old son could not allege constitutional right to parent a minor child, but could claim violation of right to companionship and society). Children, including adult children, may claim a violation of their right to familial association, but that right includes only a companionship interest. City of Fontana, 818 F.2d at 1419; Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998). Parents and children raising such claims are alleging a deprivation of their own liberty rights; they are not asserting the rights of the decedent or injured child or parent. Kelson, 767 F.2d at653 n.2.

           The mere existence of a biological link between parent and child is not a sufficient basis to support a Fourteenth Amendment claim for loss of familial relationship rights.Wheeler v. City of Santa Clara, 894 F.3d 1046, 1058 (9th Cir. 2018). In order to bring a Fourteenth Amendment due process claim, the parent and child must have relationships “which reflect some assumption ‘of parental responsibility.’” Kirkpatrick v. County of Washoe, 843 F.3d 784, 789 (9th Cir. 2016) (en banc) (“It is when an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child that his interest in personal contact with his child acquires substantial protection under the due process clause.”) (internal quotation marks and brackets omitted). Parents can bring a Fourteenth Amendment due process claim only if they demonstrate “consistent involvement in a child’s life and participation in child-rearing activities.” Wheeler, 894 F.3d at 1058.Children must make the same showing. See id. (holding relationship between child adopted as infant and biological mother insufficient for child to bring Fourteenth Amendment loss of companionship claim).

            Other familial relationships may not give rise to a protectable liberty interest. The extent to which grandparents have such an interest has not been decided, although a noncustodial grandparent generally does not have a protectable interest. See Miller v. California, 355 F.3d 1172, 1176 (9th Cir. 2004) (holding that grandparents had neither a “substantive due process right to family integrity or association as noncustodial grandparents of children who are dependents of the court, nor of a liberty interest in visiting their grandchildren”). Siblings cannot bring claims under the Fourteenth Amendment for the deprivation of their liberty interest arising out of their relationship with their sibling. Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1991), as amended on denial of reh’g  (June 16, 1992). 

           In Peck v. Montoya, 51 F.4th 877, 893 (9th Cir. 2022), the Ninth Circuit noted that it had not previously held whether a substantive due process right exists in the context of a familial association claim asserted by a spouse, rather than a parent or child and that other courts of appeal have reached conflicting conclusions. The Ninth Circuit did not reach this issue in this case. 

 II.        Two Types of Claims: Procedural and Substantive 

            A claim of interference with the parent/child relationship in violation of the Fourteenth Amendment may be brought as either a procedural due process claim or a substantive due process claim.  See City of Fontana, 818 F.2d at 1419-20 (“whether a particular interference with a liberty interest constitutes a substantive or a procedural due process violation depends on whether the interference was ‘for purposes of oppression,’ rather than for the purpose of furthering legitimate state interests” (citation omitted)). 

            A procedural due process claim may arise when the state interferes with the parent-child relationship for the purpose of furthering a legitimate state interest. See id. at 1419.  Thus, “where the best interests of the child arguably warrants termination of the parent’s custodial rights, the state may legitimately interfere so long as it provides ‘fundamentally fair procedures.’”  Id. (quoting Santosky v. Kramer, 455 U.S. 745, 754 (1982)).  

            A substantive due process claim may arise when the state interferes with the parent-child relationship “for purposes of oppression.” Id. (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). For instance, “the state has no legitimate interest in interfering with this liberty interest through the use of excessive force by police officers.” Id. at 1419-20. Each type of claim is evaluated under a distinct standard.

             A.        Standard for Procedural Due Process Violation 

            Procedural due process claims typically arise when a state official removes a child from a parent’s care. For such claims, “[t]he Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.” Rogers v. County of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007) (quoting Mabe v. San Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1107 (9th Cir. 2001)). Removing a child from a parent’s custody violates the Fourteenth Amendment unless the removal (1) is authorized by a court order (typically a warrant); or (2) is supported by “reasonable cause to believe that the child is in imminent danger of serious bodily injury,” and the scope of intrusion does not extend beyond that which is reasonably necessary.Id. (quoting Mabe, 237 F.3d at 1106). Even if the removal is pursuant to a court order, the right may be violated if the court order was obtained through judicial deception, that is, if a plaintiff alleges “(1) a misrepresentation or omission (2) made deliberately or with a reckless disregard for the truth, that was (3) material to the judicial deception.” David v. Kaulukukui, 38 F.4th 792, 801 (9th Cir. 2022). “A misrepresentation or omission is material if a court would have declined to issue the order had [the defendant] been truthful.” Id. Judicial deception can arise when true observations are made misleading by omission of facts “that are not themselves material[, but] may result in an affidavit that, considered as a whole, is materially misleading.” Scanlon v. County of Los Angeles, 92 F.4th 781, 799 (9th Cir. 2024). The “mere threat of separation” is insufficient to give rise to a Fourteenth Amendment claim “based on a minor being separated from his or her parents.” Dees v. County of San Diego, 960 F.3d 1145, 1152 (9th Cir. 2020).   

            Removing children from their parents’ custody without court authorization is permissible when officials have reasonable cause to believe that the children are at imminent risk of serious bodily injury or molestation in the time it would take them to get a warrant. Rogers, 487 F.3d at 1294-95; see also Wallis v. Spencer, 202 F.3d 1126, 1138 (9th Cir. 2000). Serious allegations of abuse must be investigated and corroborated before they will give rise to “a reasonable inference of imminent danger sufficient to justify taking children into temporary custody.” Demaree v. Pederson, 887 F.3d 870, 879 (9th Cir. 2018) (per curiam) (internal quotation marks omitted). There must be “specific, articulable evidence that provides reasonable cause to believe that a child is in imminent danger of abuse.” Wallis, 202 F.3d at 1138; see also Sjurset v. Button, 810 F.3d 609, 622 (9th Cir. 2015) (holding officials’ belief of imminent danger objectively reasonable where mother who had tested positive for drugs and had previously been convicted of child endangerment prevented officers from verifying child’s safety, and officials could not have obtained court order for 36 hours). 

            Conversely, removing children from their parents’ custody without a court’s authorization can give rise to a violation of a liberty interest when there is no imminent risk of physical or sexual abuse. Demaree, 887 F.3d at 879 (holding that officials unconstitutionally removed children from parents’ custody because officials’ fear of “sexual exploitation” based on nude photos of children was not objectively reasonable since photos were not distributed, did not depict sexual conduct, and did not reflect risk of physical sexual abuse). Evidence that children are malnourished, their home is disorderly or unsanitary, or that their parents lack health insurance or fail to provide them daycare does not constitute exigent circumstances. Rogers,487 F.3d at 1296.

             B.        Standard for Substantive Due Process Violation 

            A substantive due process claim of impermissible interference with familial association arises when a state official harms a parent or child in a manner that shocks the conscience. Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). Parents and children have a substantive due process right to a familial relationship free from unwarranted state interference. Scott v. Smith, 109 F.4th 1215, 1228 (9th Cir. 2024); Hardwick v. County of Orange, 980 F.3d 733, 740–41 & n.9 (9th Cir. 2020).  To show a violation of the right to familial association under the Fourteenth Amendment based on an officer’s use of force, a plaintiff must establish that an officer’s conduct “shocks the conscience.” Scott, 109 F.4th at 1228; Nicholson v. City of Los Angeles, 935 F.3d 685, 692 (9th Cir. 2019).

            A Fourteenth Amendment substantive due process claim is distinct from a claim arising under the Fourth Amendment. See Lewis, 523 U.S.at 843. A Fourth Amendment excessive force claim requires the victim to establish that the officer’s conduct was objectively unreasonable. Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th Cir. 2022). But that Fourth Amendment standard is less demanding than the “shocks the conscience” standard that applies to substantive due processfamilial association claims under the Fourteenth Amendment brought by the parent or child of the victim. See id. at 1056-57. Accordingly, “it may be possible for an officer’s conduct to be objectively unreasonable under the Fourth Amendment yet still not infringe the more demanding standard that governs substantive due process claims under the Fourteenth Amendment.” Id. at 1057(internal quotation marks and brackets omitted).

 “There are two tests used to decide whether officers’ conduct ‘shocks the conscience.’” Id. at 1056. A state official’s conduct may shock the conscience if (1) the official acted with a “purpose to harm” the victim for reasons unrelated to legitimate law enforcement objectives; or (2) the official acted with “deliberate indifference” to the victim. Scott 109 F.4th at 1228. Which test applies turns on the specific circumstances of the underlying events in each case. Ochoa, 26 F.4th at 1056 (“Which test applies turns on whether the officers had time to deliberate their conduct.”). If the encounter at issue escalated so quickly that the officer had to make a snap judgment, the plaintiff must show the officer acted with a “purpose to harm.” See Porter, 546 F.3d at 1137. However, if the situation evolved within a time frame that allowed officers to reflect before acting, the plaintiff must show the officer acted with “deliberate indifference.” See id. To decide which test to apply, we must thus ask whether actual deliberation by the officer was “practical.” Scott,109 F.4th at 1228, citing Porter, 546 F.3d at 1137. 

                         1.       Purpose to Harm Standard 

           The Supreme Court developed the purpose-to-harm standard in recognition that not every harm caused by government officials gives rise to a Fourteenth Amendment claim. See Lewis, 523 U.S. at 848-49. For instance, “when unforeseen circumstances demand an officer’s instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose” so as to shock the conscience. Id. at 853.These circumstances may include high speed police chases, see id. at 855, responding to a gunfight in a crowded parking lot, Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 368 (9th Cir. 1998), and other situations requiring split-second decisions, where the officer did not have a “practical” opportunity for “actual deliberation.” Lewis,523 U.S. at 851;  see also Puente v. City of Phoenix, 123 F.4th 1035, 1056 (9th Cir. 2024) (explaining that the Fourteenth Amendment’s “purpose to harm” standard (rather than the Fourth Amendment’s reasonableness standard) governs the defendant officers’ use of chemical irritants and flash-bangs where the situation had escalated quickly, requiring officers to respond promptly without the luxury of having time to make unhurried judgments).  

           In Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008),the Ninth Circuit held that the “purpose to harm” standard applied to a Fourteenth Amendment familial association claim brought by the surviving parents of a motorist who was shot and killed, “[d]ue to the rapidly escalating nature of the confrontation” with the motorist, such that actual deliberation was not practical. Id. at 1137. Similarly, in Ochoathe Ninth Circuit applied the purpose to harm standard to a familial association claim brought by the surviving relatives of a suspect who was fatally shot after he took a step towards officers while carrying a knife. Ochoa, 26 F.4th 1056 (stating that under the purpose to harm standard of culpability the plaintiffs must prove that the officer’s purpose was “to cause harm unrelated to the legitimate object of arrest”). 

           By contrast, when an officer shot twelve rounds at an occupied vehicle even though the car presented no immediate threat, the Ninth Circuit held that the jury could have reasonably concluded that the officer “acted with the purpose to harm unrelated to a legitimate law enforcement objective,” and upheld the jury’s verdict for the suspect’s surviving children. A.D. v. Cal. Highway Patrol, 712 F.3d 446, 458 (9th Cir. 2013) (stating that the officer acted “with a purpose to harm unrelated to the legitimate law enforcement objectives of arrest, self-defense, or defense of others”). 

            Zion v. County of Orange exemplifies the distinction between legitimate and illegitimate official conduct. The officer in Zion did not violate the Fourteenth Amendment when he emptied his weapon at a suspect who was fleeing after stabbing an officer because the officer had no time for reflection, and “[w]hether excessive or not, the shootings served the legitimate purpose of stopping a dangerous suspect.” 874 F.3d 1072, 1077 (9th Cir. 2017). However, there was a genuine issue of fact as to whether the officer acted with a purpose to harm when, after the suspect was lying on the ground in a fetal position, the officer walked around in a circle for several seconds, then took a running start and stomped on the suspect’s head three times. See id. (reversing summary judgment in favor of officer defendant).

                         2.       Deliberate Indifference Standard   

            The deliberate indifference standard applies in situations where the officers who caused the harm to the parent or child acted (or failed to act) in a situation when “actual deliberation is practical.” Lewis, 523 U.S. at 851. When officials have “time to make unhurried judgments,” and “extended opportunities to do better,” but unreasonably allow harm to occur, then their “protracted failure even to care” can shock the conscience, thus giving rise to a substantive due process claim. Id. “Actual deliberation” requires a longer period of time than “deliberation” as that term is used in homicide law. See id. at 851 n.11 (“By ‘actual deliberation,’ we do not mean ‘deliberation’ in the narrow, technical sense in which it has sometimes been used in traditional homicide law.”). Deliberation may be practical even without an extended timeline of events.  See Scott, 109 F.4th at 1228;  Nicholson v. City of Los Angeles, 935 F.3d 685, 693-94 (9th Cir. 2019) (“An officer had time to deliberate when, after seeing a teenager with a toy gun, he jumped out of a car and fired several shots.”). Because it shocks the conscience for officials to cause harm to a parent or child with deliberate indifference, a substantive due process claim of impermissible interference with familial association can arise in these circumstances. Porter, 546 F.3d at 1137; Scott, 109 F.4th at 1228 (stating the officers had time to deliberate because the encounter was not escalating, officers had time to consider their next steps, seven minutes passed after the officers arrived on the scene and had called their sergeant to ask for guidance).

            The deliberate indifference standard often applies in cases of state officials’ inaction or failure to protect. Although the Fourteenth Amendment’s due process clause generally does not create an affirmative right to governmental aid, see DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195-96 (1989), a state actor’s failure to protect “may give rise to a § 1983 claim under the state-created danger exception when the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger.” Herrera v. Los Angeles Unified Sch. Dist., 18 F.4th 1156, 1158 (9th Cir. 2021) (internal quotation marks omitted). A state actor’s failure to protect may also create liability under § 1983 if the state “takes a person into its custody and holds him there against his will.” DeShaney, 489 U.S. at 199-200 (“[T]he Constitution imposes upon [the state] a corresponding duty to assume some responsibility for his safety and general well-being.”). The types of custody giving rise to the duty to protect are “incarceration, institutionalization, or other similar restraint of personal liberty.” Id. at 200. The Ninth Circuit has clarified that “the only two exceptions to the general rule against failure-to-act liability for § 1983 claims presently recognized by this court are the special-relationship exception and the state-created danger exception.” Murguia v. Langdon, 61 F.4th 1096, 1108 (9th Cir. 2023) (“we make clear that the only two exceptions to the general rule against failure-to-act liability for § 1983 claims presently recognized by this court are the special-relationship exception and the state-created danger exception”); Sinclair v. City of Seattle, 61 F.4th 674, 684 (9th Cir. 2023) (stating that police abandoning a portion of the city to unchecked lawlessness is a “shocking contempt towards its promise to citizens” that “[t]here shall be maintained adequate police protection in each district of the City.” (quotations omitted)). “[T]he mere failure to perform a legally required act is [not] grounds for § 1983 liability based on a substantive due process violation.” Murguia, 61 F.4th at 1108.

            The deliberate indifference standard as it applies in cases alleging a deprivation of a familial relationship is a subjective standard. For a defendant to act with deliberate indifference, he must “recognize the unreasonable risk and actually intend to expose the [victim] to such risks without regard to the consequences to the [victim].” Herrera, 18 F.4th at 1158(internal quotation marks and brackets omitted). “Ultimately, a state actor needs to know that something is going to happen but ignore the risk and expose the [victim] to it.” Id. at 1158-59 (internal quotation marks and brackets omitted); see, e.g., Polanco v. Diaz, 76 F.4th 918, 926-27 (9th Cir. 2023) (upholding claim of state-created danger by prison officials in a case arising from prison guard’s death from COVID-19 complications after 122 COVID ill inmates were transferred from another prison, placing decedent in a more dangerous position); Murguia, 61 F.4th at 1115-116 (determining that father stated a plausible claim against a social worker for subjective deliberate indifference under the state-created danger theory by alleging that social worker was aware of mother’s history of violence and mental health issues, including multiple specific instances of physical violence against her own family members, but falsely represented to police sergeant that mother was homeless and had no criminal history or history of child abuse); Sinclair, 61 F.4th at 674 (explaining the danger of uncontrolled lawlessness allegedly created by the city’s decision to withdraw law enforcement from neighborhood and surrender it to protestors was not sufficiently particularized to support mother’s claim that city’s actions deprived her of her substantive due process right to companionship of son pursuant to state-created danger doctrine because it was a generalized danger experienced by all members of the public). 

            Herrera shows how the subjective standard applies to a parent’s claim for deprivation of familial relationship. In Herrera, parents claimed that a school aide’s failure to protect their autistic child from drowning in a park swimming pool during a school outing was actionable under the state-created danger exception, and gave rise to a § 1983 claim for deprivation of a parent-child relationship in violation of the Fourteenth Amendment. See 18 F.4that 1161. The Ninth Circuit held that the school aide had not acted with deliberate indifference because he was unaware of any immediate danger to the child (mistakenly thinking the child was in the locker room rather than in the pool), and there was therefore no evidence that the aide subjectively recognized the risk to the child. See id. at 1162. Accordingly, no reasonable jury could conclude that the parents’ Fourteenth Amendment rights were violated. See id.; see also Patel v. Kent Sch. Dist., 648 F.3d 965, 971–72 (9th Cir. 2011) (holding that schoolteacher did not violate student’s Fourteenth Amendment rights by failing to protect the student from having sex with another student in restroom, because there was no proof that teacher knew about any immediate risk). 

            Pretrial detainees have a Fourteenth Amendment due process right “to be free from violence from other inmates.” Castro v. County of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016) (en banc). In cases where the victim is a detainee and the plaintiff is the victim or the victim’s estate, the Ninth Circuit has applied an objective standard for the deliberate indifference inquiry. Castro, 833 F.3d at 1070-71. Under the objective standard, a pretrial detainee can maintain a Fourteenth Amendment claim by proving the conduct was objectively unreasonable. See id. at 1071. The objective standard has been extended to cases where the detainee is in an immigration facility, See Roman v. Wolf, 977 F.3d 935, 943 (9th Cir. 2020) (per curiam), and where the detainee alleges that state officials failed to provide medical care, See Gordon v. County of Orange, 888 F.3d 1118, 1122-24 (9th Cir. 2018). See Instructions 9.29 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Excessive Force), 9.30 (Particular Rights—Fourteenth Amendment— Pretrial Detainee’s Claim re Conditions of Confinement/Medical Care), 9.31 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Failure to Protect), and 9.32A (Particular Rights—Fourteenth Amendment—Due Process—Civil Commitment). 

            In considering whether the objective or subjective standard applied, Herrera discussed the objective standard as applied in Castro and its progeny, but concluded that the subjective standard for deliberate indifference applied because the victim in the case was not a detainee. See 18 F.4th at 1160 (“Erick was not detained at the time of his death . . . . We therefore apply a purely subjective standard, consistent with our precedent, requiring the plaintiff to show that the state actor recognized an unreasonable risk and actually intended to expose the plaintiff to such risk.”). Herrera's analysis suggests that the objective standard applies in a case alleging a deprivation of familial association when the victim is a detainee. However, the Ninth Circuit has not squarely addressed that question.  

Revised March 2025 

Comment

            In King v. County of Los Angeles, 885 F.3d 548 (9th Cir. 2018), the Ninth Circuit recognized a substantive due process constitutional claim for individuals confined pursuant to a civil commitment, if the conditions of confinement “amount to punishment.” Id. at 557. In determining whether the conditions of confinement amount to punishment, a comparison is made between the conditions of confinement of the civil detainee and the conditions of confinement of the “criminal counterparts” of a civil detainee. Id. 

            Relying on the court’s prior decision in Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004), the court reiterated that “under the Due Process Clause of the Fourteenth Amendment, an individual detained under civil process cannot be subjected to conditions that amount to punishment.” King, 885 F.3d at 556-57. Conditions of confinement are presumed to be punitive if: (1) they are “identical to, similar to, or more restrictive than, those in which a civil pretrial detainee’s criminal counterparts are held,” or (2) they are “more restrictive than those the individual would face following SVPA commitment.” Id. at 557. “If either presumption applies, the burden shifts to the defendant to show (1) legitimate, non-punitive interests justifying the conditions of the detainee’s confinement; and (2) that the restrictions imposed are not excessive in relation to those interests.” Id. Legitimate interests may include “ensuring a detainee’s presence at trial, maintaining jail security, and effective management of a detention facility.” Id. at 558. However, conditions of confinement may still be considered punitive if “alternative and less harsh” methods exist to achieve the specified interests. Id.; see also Fraihat v. U.S. Immigration & Customs Enf’t, 16 F.4th 613, 648-49 (9th Cir. 2021) (assuming without deciding that King v. County of Los Angeles and Jones v. Blanas would “be appropriate to invoke that presumption in the immigration context” but ultimately stating that the “record lacks evidence from which to draw any relevant comparisons between the overall conditions of confinement of ICE detainees as compared to those in criminal custody”). 

            For a pretrial detainee, violations arise under the Due Process Clause of the Fourteenth Amendment.  Use Instructions 9.29 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Excessive Force), 9.30 (Particular Rights—Fourteenth Amendment— Pretrial Detainee’s Claim re Conditions of Confinement/Medical Care), and 9.31 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim of Failure to Protect). 　

Revised September 2024

            As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant deprived the plaintiff of particular rights under the United States Constitution. The Fourteenth Amendment protects against being subjected to criminal charges on the basis of false evidence that was deliberately fabricated. In this case, the plaintiff alleges the defendant deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the Fourteenth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].  

            For the plaintiff to prevail on [his][her] [other pronoun] claim of deliberate fabrication of evidence, the plaintiff must prove [at least one of] the following element[s] by a preponderance of the evidence: 

[The defendant deliberately fabricated evidence that was used to [[criminally charge][prosecute][convict][other deprivation of liberty]] the plaintiff.] 

or 

[The defendant continued [his] [her] [other pronoun] investigation of the plaintiff despite the fact that [he] [she] [other pronoun] knew that the plaintiff was innocent, or was deliberately indifferent to the plaintiff’s innocence, and the results of the investigation were used to [[criminally charge][prosecute][convict] [other deprivation of liberty]] the plaintiff.] 

or 

[The defendant used techniques that were so coercive and abusive that [he][she] [other pronoun] knew, or was deliberately indifferent, that those techniques would yield false information that was used to [[criminally charge][prosecute][convict] [other deprivation of liberty]] the plaintiff. 

            “Deliberate indifference” is the conscious or reckless disregard of the consequences of one’s acts or omissions.  

            [If the plaintiff proves that the defendant deliberately fabricated evidence that was used to [criminally charge][prosecute][convict] [other deprivation of liberty] the plaintiff, then the plaintiff is not required to prove that the defendant knew the plaintiff was innocent or was deliberately indifferent to the plaintiff’s innocence.] 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8.          

            “[T]here is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government.” Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc). The deliberate fabrication of evidence implicates “the fundamental due process right to a fair trial.” Richards v. County of San Bernadino, 39 F.4th 562, 572 (9th Cir. 2022). This is true “regardless of the plaintiff’s innocence or guilt . . . the right to a fair trial is impinged either way.” Id. In Devereaux, the Ninth Circuit stated that to establish deliberate fabrication of evidence, a plaintiff: 

must, at a minimum, point to evidence that supports at least one of the following two propositions: (1) Defendants continued their investigation of [the plaintiff] despite the fact that they knew or should have known that he was innocent; or (2) Defendants used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information. 

263 F.3d at 1076. Stated another way, “[t]o prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the plaintiff's deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017) (citations omitted). To establish the second element of causation, the plaintiff must show “that (a) the act was the cause in fact of the deprivation of liberty, meaning that the injury would not have occurred in the absence of the conduct; and (b) the act was the ‘proximate cause’ or ‘legal cause’ of the injury, meaning that the injury is of a type that a reasonable person would see as a likely result of the conduct in question.” Spencer, 857 F.3d at 798 (citations omitted). In Richards, the court said that rather than a but-for causation standard, the appropriate standard of causation is the “materiality causation standard,” under which causation is established if the plaintiff “can show a reasonable likelihood that the allegedly fabricated [] evidence could have affected the judgment of the jury.” Richards, 39 F.4that 573-74; see Caldwell v. City & Cnty. of San Francisco, 889 F.3d 1105, 1115 (9th Cir. 2018) (“[P]laintiff need not be convicted on the basis of the fabricated evidence to have suffered a deprivation of liberty—being criminally charged is enough.”). 

            Inaccuracies in an investigative report do not all give rise to a constitutional claim. “Mere carelessness is insufficient, as are mistakes of tone. Errors concerning trivial matters cannot establish causation, a necessary element of any § 1983 claim. And fabricated evidence does not give rise to a claim if the plaintiff cannot show the fabrication actually injured her in some way.” Spencer,857 F.3d at 798 (citations and internal quotations omitted); see also O’Doan v. Sanford, 991 F.3d 1027, 1046 (9th Cir. 2021) (following Devereaux v. Abbey,but noting that “a minor discrepancy” is not fabrication).

            The language in a Ninth Circuit case suggests that the mere use of fabricated evidence is violative of due process regardless of whether the person was convicted. In Richards, the plaintiff had been convicted of first-degree murder, but that conviction was later vacated based on false evidence. Richards, 39 F.4that 566. The plaintiff then filed a § 1983 action against the County and various law enforcement officers. The court said “regardless of the plaintiff’s innocence or guilt, that “[i]t would be anomalous to turn away a plaintiff who has been injured by deliberately fabricated evidence simply because that evidence alone was not sufficient to cause the conviction - the right to a fair trial is impinged either way.” Id. at 573.  Other courts have held that such evidence may not be used to prosecute or convict an individual.  Devereaux, 263 F.3d. at 1075 (“the knowing use by the prosecution of perjured testimony in order to secure a criminal conviction violates the Constitution”); Cole v. Carson, 802 F.3d 752, 768 (5th Cir.2015) (“a victim of intentional fabrication of evidence by officials is denied due process when he is either convicted or acquitted”). Thus, the instruction should be modified depending on whether the plaintiff was criminally charged, prosecuted, or convicted based on fabricated evidence. This instruction includes prosecution as a means to satisfy the three elements for a trial court to consider. 

            “Typically, in constitutional tort cases the ‘[f]iling of a criminal complaint immunizes investigating officers . . . because it is presumed that the prosecutor filing the complaint exercised independent judgment in determining that probable cause for an accused’s arrest exists at that time.’” Caldwell, 889 F.3d at 1115 (quoting Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981), overruled on other grounds by Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008)). However, the presumption can be overcome if a plaintiff establishes that officers “either presented false evidence to or withheld crucial information from the prosecutor.” Caldwell, 889 F.3d at 1116. At that point, “the analysis reverts back to a normal causation question” and the issue again becomes whether the constitutional violation caused the plaintiff’s harm. Id. 

            An official’s deliberate fabrication of evidence or use of perjury also violates the rights of a parent or child when introduced in a civil dependency proceeding. “[G]overnment perjury and knowing use of false evidence are absolutely and obviously irreconcilable with the Fourteenth Amendment’s guarantee of Due Process in our courts . . .There are no circumstances in a dependency proceeding that would permit government officials to bear false witness against a parent.” Hardwick v. Vreeken, 844 F.3d 1112, 1120 (9th Cir. 2017). For claims against social workers involving fabrication of evidence in child dependency proceedings, see 9.32 (Particular Rights—Fourteenth Amendment—Due Process—Interference with Parent/Child Relationship).

            Imposing a deliberate indifference or reckless disregard for an accused’s rights or for the truth standard is appropriate in the substantive due process context. See Gantt v. City of Los Angeles, 717 F.3d 702, 708 (9th Cir. 2013) (approving a deliberate indifference instruction stating that “[d]eliberate indifference is the conscious or reckless disregard of the consequences of one's acts or omissions. It entails something more than negligence but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result”); Tennison v. City & County of San Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009). Deliberate indifference encompasses recklessness. Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc), noted that the “deliberate indifference” standard, at least in the context of a Fourteenth Amendment failure to protect claim, requires the plaintiff “to prove more than negligence but less than subjective intent—something akin to reckless disregard.” See Gantt, 717 F.3d at 708 (concluding no error in the portion of instruction stating “deliberate indifference is the conscious or reckless disregard of the consequences of one’s acts or omissions”); see also Tatum v. Moody, 768 F.3d 806, 821 (9th Cir. 2014) (approving alternative instruction that also encompassed recklessness).           

Revised November 2024

            As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant deprived the plaintiff of particular rights under the United States Constitution. The Fourteenth Amendment protects against a person being subjected to a criminal trial when favorable evidence has been deliberately or recklessly withheld from the prosecutor. In this case, the plaintiff alleges the defendant deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the Fourteenth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim]. 

            For the plaintiff to prevail on [his][her] [other pronoun] claim of deliberate or reckless suppression of evidence, the plaintiff must prove the following elements by a preponderance of the evidence: 

First, the defendant suppressed evidence that was favorable to the accused from the prosecutor and the defense; 

Second, the suppression harmed the accused; and 

Third, the defendant acted with deliberate indifference to an accused’s rights or for the truth in suppressing the evidence. 

            “Deliberate indifference” is the conscious or reckless disregard of the consequences of one’s acts or omissions. 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8. 

In Tatum, the Ninth Circuit permitted a criminal defendant to pursue a due process claim for 27 months of pretrial detention that would not have occurred if “significant exculpatory evidence” had been disclosed by law enforcement to prosecutors. Tatum v. Moody, 768 F.3d 806, 819-820 (9th Cir. 2014). The Ninth Circuit resolved the appeal without deciding “the scope and protections established by Brady and its progeny,” (id.) instead, the court “emphasize[d] the narrowness of the constitutional rule we enforce today,” which it restricted to: “detentions of (1) unusual length, (2) caused by the investigating officers' failure to disclose highly significant exculpatory evidence to prosecutors, and (3) due to conduct that is culpable in that the officers understood the risks to the plaintiff’s rights from withholding the information or were completely indifferent to those risks.” Id. (“If police officers have been instrumental in the plaintiff’s continued confinement or prosecution, they cannot escape liability by pointing to the decisions of prosecutors or grand jurors or magistrates to confine or prosecute him. They cannot hide behind the officials whom they have defrauded.”). 

See also Mellen v. Winn, 900 F.3d 1085, 1096 (9th Cir. 2018) (stating elements); Tennison v. City & County of San Francisco, 570 F.3d 1078, 1087, 1089 (9th Cir. 2009) (“We therefore hold that a § 1983 plaintiff must show that police officers acted with deliberate indifference to or reckless disregard for an accused’s rights or for the truth in withholding evidence from prosecutors. This standard is consistent with the standard imposed in the substantive due process context, in which government action may violate due process if it ‘shocks the conscience.’”); see also Carrillo v. County of Los Angeles, 798 F.3d 1210, 1219 (9th Cir. 2015) (“The law in 1984 clearly established that police officers were bound to disclose material, exculpatory evidence.”). 

Revised November 2024

            As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant deprived the plaintiff of particular rights under the United States Constitution.  

            In this case, the plaintiff alleges that the defendant deprived the plaintiff of [his] [her] [other pronoun] rights under the Fourteenth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].  

            Under the Fourteenth Amendment, a person has the constitutional right to be free from a government employee affirmatively placing that person in a position of actual, particularized danger (or in a situation of actual, particularized danger that is more dangerous than the position that the person already faced) if the government employee acted with deliberate indifference to a known or obvious danger.  

            To prove the defendant deprived the plaintiff of this Fourteenth Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:  

            First, the defendant committed an affirmative act;  

            Second, the affirmative act placed the plaintiff in a position of an actual, particularized danger by creating or exposing the plaintiff to a danger that [he] [she] [other pronoun] would not have otherwise faced;  

            Third, the defendant acted with deliberate indifference to a known or obvious danger; and  

            Fourth, the affirmative act that created the actual, particularized danger caused injury to the plaintiff that was foreseeable.  

            In this context, “deliberate indifference” means that the defendant disregarded a known or obvious consequence of [his] [her] [other pronoun] action[s]. In other words, the defendant must have known that something was going to happen but ignored the risk and still exposed the plaintiff to that risk. 

Comment 

             Use this instruction only in conjunction with the applicable elements instruction from Instructions 9.3–9.8. 

            The “state may be constitutionally required to protect a plaintiff that it affirmatively places in danger by acting with deliberate indifference to a known or obvious danger.” Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019) (quotations omitted); see also Martinez v. High, 91 F.4th 1022, 1028-29 (9th Cir. 2024) (explaining that an officer acted with deliberate indifference when the police officer disclosed a domestic violence victim’s confidential report of domestic violence to victim’s alleged abuser, who was another police officer, and knew victim was in the room with the abuser and would thus be exposed to his violent reaction, after which the abuser further physically abused the plaintiff); Polanco v. Diaz, 76 F.4th 918, 925-29 (9th Cir. 2023) (upholding a claim of state-created danger against prison officials in a case arising from prison guard’s death from COVID-19 complications after 122 ill inmates with COVID-19 were transferred from another prison); Murguia v. Langdon, 61 F.4th 1096, 1110-17 (9th Cir. 2023) (“In examining whether an officer affirmatively places an individual in danger, . . . we examine whether the officers left the person in a situation that was more dangerous than the one in which they found him.”); Sinclair v. City of Seattle, 61 F.4th 674, 682 (9th Cir. 2023) (holding that the danger of uncontrolled lawlessness created by the city’s decision to withdraw law enforcement from a neighborhood and surrender it to protestors failed to allege that the danger was sufficiently particularized to support a mother’s claim that the city’s actions deprived her of her substantive due process right to son’s companionship); Hernandez v. City of San Jose, 897 F.3d 1125, 1133-35 (9th Cir. 2018) (stating police officers “shepherding” of presidential candidate’s supporters into a crowd of violent counter-protesters increased the danger to the attendees and was in deliberate indifference to that danger).

Revised November 2024

Comment

         The Committee has not formulated any instructions concerning qualified immunity because most issues of qualified immunity are resolved before trial, or the ultimate question of qualified immunity is reserved for the judge to be decided after trial based on the jury’s resolution of the disputed facts. The trend of the Ninth Circuit’s qualified immunity jurisprudence has been toward resolving qualified immunity as a legal issue before trial whenever possible. Morales v. Fry, 873 F.3d 817, 823 (9th Cir. 2017). 

To guide the trial court and the parties, this Comment provides general authority related to qualified immunity. This Comment also provides guidance should factual disputes preclude resolution of qualified immunity before trial, and the issue proceeds to trial for resolution. 

Two-Prong Analysis 

             The qualified immunity analysis consists of two prongs: whether the defendant’s conduct “(1) violated a constitutional right that (2) was clearly established at the time of the violation.” Polanco v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023); Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020) (explaining that the qualified immunity analysis consists of a two-prong analysis: (1) “whether the facts taken in the light most favorable to the plaintiff show that the officer’s conduct violated a constitutional right”; and (2) if so, “whether the right in question was clearly established at the time of the officer’s actions, such that any reasonably well-trained officer would have known that his conduct was unlawful”). A court may “exercise [its] sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Pearson v. Callahan, 555 U.S. 223, 236 (2009); Evan v. Skolnick, 997 F.3d 1060, 1064 (9th Cir. 2021) (“A court may address the two prong analysis in either order”); O’Doan v. Sanford, 991 F.3d 1027, 1036 (9th Cir. 2021) (“Although qualified immunity involves a two-step analysis, we may exercise our discretion to resolve a case only on the second ground when no clearly established law shows that the officers’ conduct was unconstitutional.”) (citations omitted). 

“Under the first prong [of the qualified immunity inquiry,] we ask whether, ‘[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?’” Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022); Pearson, 555 U.S. at 236 (noting that analyzing the first then second prong, while not mandatory, “is often beneficial [,] . . . promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable”). To evaluate whether there is a constitutional violation, the court applies the current law. See Sandoval v. County of San Diego, 985 F.3d 657, 678 (9th Cir. 2021) (stating that “when the governing law has changed since the time of the incident, we apply the current law to determine if a constitutional violation took place under the first prong of qualified immunity analysis”). 

Regarding the second prong, the Ninth Circuit has explained: “We begin our inquiry into whether this constitutional violation was clearly established by defining the law at issue in a concrete, particularized manner.” Shafer v. County of Santa Barbara, 868 F.3d 1110, 1117-18 (9th Cir. 2017) (stating that the plaintiff bears the burden of showing that the rights allegedly violated were clearly established); Gordon v. County of Orange, 6 F.4th 961, 969 (9th Cir. 2021) (“[t]he plaintiff bears the burden of proving that the right allegedly violated was clearly established” at the time of the violation). Moreover, to show that a right was clearly established, the plaintiff must demonstrate that, at the time of the alleged violation, the state of the law gave fair warning that the relevant conduct was unconstitutional. See Ballentine, 28 F.4th at 64. A case directly on point is not necessary to defeat qualified immunity, but existing case law must have put “every reasonable official” on notice that the conduct was unconstitutional. Martinez v. High, 91 F.4th 1022, 1031 (9th Cir. 2024); Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (stating that a plaintiff need not find “a case directly on point,” but existing precedent must have placed the statutory or constitutional question beyond debate); accord Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5-6 (2021) (“Although this Court’s caselaw does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate. This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition.” (internal quotation marks and citations omitted)); Sandoval, 985 F.3d at 674 (stating that the second prong remains what it has always been: an objective examination “that compares the factual circumstances faced by the defendant to the factual circumstances of prior cases to determine whether the decisions in the earlier cases would have made clear to the defendant that his conduct violated the law”); see Singh v. City of Phoenix, 124 F.4th 746 (9th Cir. 2024) (comparing the instant case with key facts from a plaintiff-identified similar case for the second step of qualified immunity which purportedly put the defendant officer on notice that the officer’s conduct might violate the Constitution and the instant case).  

In deciding which precedents apply, the Ninth Circuit routinely relies “on the intersection of multiple cases when holding that a constitutional right has been clearly established.” Polanco, 76 F.4th at 930 n.8 (“We routinely rely on the intersection of multiple cases when holding that a constitutional right has been clearly established . . .This approach is required by the Supreme Court’s instruction that qualified immunity is improper where ‘a legal principle [has] a sufficiently clear foundation in then-existing precedent.’”) (citations omitted); see also Russell v. Lumitap, 31 F.4th 729, 737 (9th Cir. 2022) (“The precedent must be ‘controlling’—from the Ninth Circuit or the Supreme Court—or otherwise be embraced by a ‘consensus’ of courts outside the relevant jurisdiction.”); accord Martinez, 91 F.4th at 1031 (“existing case law must be ‘controlling law’—from the Ninth Circuit, the Supreme Court, or from a consensus of courts outside the relevant jurisdiction.”). “Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” Scanlon v. County of Los Angeles, 92 F.4th 781, 809 (9th Cir. 2024) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)). Only the judge can decide whether a particular constitutional right was “clearly established” once any factual issues are resolved by a fact finder. See Morales, 873 F.3d at 823. 

Qualified Immunity as a Matter of Law  

A defendant is entitled to qualified immunity as a matter of law only if, taking the facts in the light most favorable to the nonmoving party, he or she did not violate any clearly established constitutional right.Torres v. City of Los Angeles, 548 F.3d 1197, 1210 (9th Cir. 2008). If reasonable jurors could believe that the defendant violated the plaintiff’s constitutional right, and the right at issue was clearly established, the case should proceed to trial. Id.; see also LaLonde v. County of Riverside, 204 F.3d 947, 953 (9th Cir. 2000) (“If … there is a material dispute as to the facts regarding what the officer or the plaintiff actually did, the case must proceed to trial, before a jury if requested.”). “Though we may excuse the reasonable officer for … a mistake, it sometimes proves necessary for a jury to determine first whether the mistake, was, in fact, reasonable.” Johnson v. Bay Area Rapid Transit Dist., 724 F.3d 1159, 1168 (9th Cir. 2013) (citations omitted). 

The Ninth Circuit has decided numerous cases of “clearly established” law. Limited examples of “clearly established” law follow. The Committee suggests review of the Ninth Circuit’s website for a more robust accumulation of case authorities. See Ninth Circuit Section 1983 Outline [1].  

1.    Excessive Force  

In Rice v. Morehouse, the Ninth Circuit reiterated that, for purposes of clearly established law, “we clearly established one’s ‘right to be free from the application of non-trivial force for engaging in mere passive resistance.’” Rice v. Morehouse, 989 F.3d 1112, 1125 (9th Cir. 2021) (quoting Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013)) (citing Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012) (explaining that cases dating back to 2001 established that “a failure to fully or immediately comply with an officer’s orders neither rises to the level of active resistance nor justifies the application of a non-trivial amount of force”); Sanderlin v. Dwyer, 116 F.4th 905, 915-17 (9th Cir. 2024) (holding that, under Nelson v. City of Davis, it was clearly established that an officer’s use of a foam projectile on protestor who was standing in front of the officer holding a sign above his head and who did not move when ordered to stand aside constituted excessive force).

An arrestee’s right to be free from the use of deadly force as long as he was not directly threatening a police officer with a weapon was clearly established at the time of the decedent’s death in June 2018.  And an arrestee’s right to be free from the use of chemical munitions as long as he was suspected of a minor crime, posed no threat to officers or others, and was engaged in only passive resistance was also clearly established at that time.  But the arrestee’s right to be free from the use of a police dog under the circumstances was not then clearly established. Hyer v. City and County of Honolulu, 118 F.4th 1044, 1067-70 (9th Cir. 2024).

 It is clearly established that officers cannot use intermediate force when a suspect is restrained, has stopped resisting, and does not pose a threat. See Hyde v. City of Willcox, 23 F.4th 863, 873 (9th Cir. 2022) (stating, however, that “we are generally loath to second-guess law enforcement officers’ actions in a dangerous situation by analyzing each act without looking at the entire event and considering the officers’ mindset amid the uncertainty and chaos”); Tuuamalemalo v. Greene, 946 F.3d 471, 477 (9th Cir. 2019) (“[I]t was clearly established that the use of a chokehold on a non-resisting, restrained person violates the Fourth Amendment’s prohibition on the use of excessive force.”). Police officers were not entitled to qualified immunity for continuing to detain bystanders for five hours, while handcuffed, in violation of the plaintiffs’ Fourth Amendment rights, because it became apparent to officers almost immediately that the bystanders were not armed, were not engaging in any criminal activity, and were minors, and the detention continued long after any probable cause had dissipated. Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019). It was clearly established that the use of deadly force against a man who was walking down the street carrying gun in his waistband, posing no immediate threat, and failing to comply with conflicting commands violated Fourth Amendment. Calonge v. City of San Jose, 104 F.4th 39, 48 (9th Cir. 2024) (“When a man is walking down the street carrying a gun in his waistband, posing no immediate threat, police officers may not shout conflicting commands at him and then kill him.”); Rosenbaum v. City of San Jose, 107 F.4th 919, 926 (9th Cir. 2024) (stating that is clearly established that a suspect has right to be free from excessive force under the Fourth Amendment when the officer allows a police dog to continue biting the suspect after the suspect has fully surrendered and is under officer control when he lay on his stomach with his arms outstretched, was not actively resisting arrest or attempting to get up or flee, and where officers had immobilized his arms and legs and were pointing their firearm at him); Scott v. Smith, 109 F.4th 1215, 1226 (9th Cir. 2024) (stating that it was clearly established that bodyweight force on the back of a prone, unarmed person suffering a mental health crisis, who is not suspected of a crime is constitutionally excessive); Drummond ex rel. v. City of Anaheim, 343 F.3d 1052, 1056-57 (9th Cir. 2003) (holding that police officers’ alleged act of continuing to press their weight onto mentally ill detainee’s neck and torso as he lay handcuffed on ground and begged for air constituted use of excessive force under the circumstances); Spencer v. Pew, 117 F.4th 1130, 1143-44 (9th Cir. 2024) (holding that Drummond was “sufficiently materially similar to this case to provide adequate notice to [the defendant] that his post-handcuffing compression of [plaintiff’s] back and neck with his knee was excessive”); compare Perez v. City of Fresno, 98 F.4th 919, 926 (9th Cir. 2024) (“Given the specific context of this case, we cannot conclude that Drummond put the officers on fair notice that their actions—pressing on a backboard on top of a prone individual being restrained for medical transport, at the direction of a paramedic working to provide medical care—was unlawful.”). In Seidner, the Ninth Circuit held that because “[t]here are material differences between motorized and non-motorized vehicles,” it was not clearly established that police officer’s use of a patrol car as a roadblock to stop a bicyclist suspected of a minor traffic violation violated the Fourth Amendment’s prohibition against use of excessive force. Siedner v. De Vries,39 F.4th 591, 602 (9th Cir. 2022).  

2.     First Amendment 

It is clearly established that the First Amendment protects a person’s right to record or attempt to record police when the person is in a place where the person is permitted to be, is unarmed, and is not a suspect. See Bernal v. Sacramento Cnty. Sheriff’s Dep’t, 73 F.4th 678, 698-99 (9th Cir. 2023) (holding that qualified immunity did not shield law enforcement officers who forcibly restrained the unarmed, non-suspect plaintiff after he yelled at and filmed the officers in his front yard). “It was clearly established at the time of Defendants’ conduct that the First Amendment prohibits public officials from threatening to remove a child from an individual’s custody to chill protected speech out of retaliatory animus for such speech.” Sampson v. County of Los Angeles by & through Los Angeles Cnty. Dep’t of Child. & Fam. Servs., 974 F.3d 1012, 1020 (9th Cir. 2020). For a discussion of when a law enforcement officer may rely on a policy, an ordinance, or a permit scheme underlying the officer’s challenged actions that is not itself challenged, see Saved Magazine v. Spokane Police Dep’t, 19 F.4th 1193, 1200-01 (9th Cir. 2021).   

3.    Seizure 

It is also “clearly established” that “officers can be held liable for conducting a high-risk vehicle stop based on nothing more than a reasonable suspicion that the vehicle was stolen.” Chinaryan v. City of Los Angeles, 113 F.4th 888, 893 (9th Cir. 2024) (citing Washington v. Lambert, 98 F.3d 1181 (9th Cir. 1996), and Green v. City & County of San Francisco, 751 F.3d 1039 (9th Cir. 2014)).  Property owners brought § 1983 action against city and city police officers, alleging that officers violated the owners’ Fourth Amendment rights by stealing their property after conducting search and seizure pursuant to a warrant. Jessop v. City of Fresno, 936 F.3d 937, 939 (9th Cir. 2019). The Ninth Circuit stated that there was “no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant,” since the Ninth Circuit had not decided the issue and other circuits are divided. Id. Although officers “ought to have recognized that” stealing seized property “was morally wrong, they did not have clear notice that it violated the Fourth Amendment.” Id. at 942.  

4.    “Obvious” Unlawful Conduct without Controlling Case Law  

“[T]here can be the rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances.” District of Columbia v. Wesby, 538 U.S. 48, 64 (2018) (citing Brosseau, 543 U.S. at 199); see also Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018) (holding border patrol agent’s fatal shooting of teenager on other side of border for no apparent reason to be one such rare but obvious circumstance); Hernandez v. City of San Jose, 897 F.3d 1125, 1138 (9th Cir. 2018) (stating police officers “shepherding” of presidential candidate’s supporters into crowd of violent counter-protesters to be one such rare but obvious circumstance); Hardwick v. Vreeken, 844 F.3d 1112, 1120 (9th Cir. 2017) (identifying intentional use of perjured or fabricated evidence in child dependency hearing to be one such rare but obvious circumstance); Rieman v. Vazquez, 96 F.4th 1085, 1094 (9th Cir. 2024) (providing incomplete and false information to the juvenile court to convince the court the social worker had satisfied the due process notice requirement constitutes judicial deception and was an obvious violation of the Fourth Amendment). “[A] right can be clearly established despite a lack of factually analogous preexisting case law, and officers can be on notice that their conduct is unlawful even in novel factual circumstances.” Ballentine, 28 F.4th at 66 (stating it was “clearly established” that an arrest supported by probable cause, but made in retaliation for protected speech, violates the First Amendment) (quoting Ford v. City of Yakima, 706 F.3d 1188, 1195 (9th Cir. 2013), abrogated on other grounds by Nieves v. Bartlett, 587 U.S. 391, 403-04 (2019) (holding that a plaintiff pressing a retaliatory arrest claim based on speech protected by the First Amendment generally must plead and prove the absence of probable cause for the arrest); Spencer, 117 F.4th at 1138-40 (rejecting plaintiff’s assertion that his excessive force claim was an “obvious case,” because it was not obvious “from the Graham factors alone, that every reasonable official would have understood that what he is doing violates the right to be free from excessive force” (citing Graham v. Connor, 490 U.S. 386 (1989) (additional quotations and citations omitted)).  The Ninth Circuit noted the scarcity of such rare and obvious cases: “[W]e have repeatedly emphasized that such cases are few and far between, and thus, we are hesitant to find a right clearly established without a body of relevant case law.” Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 888 (9th Cir. 2022) (citations omitted).  

5.    State Action Required  

            The Ninth Circuit’s historical view of qualified immunity finds no basis to grant qualified immunity to officials not engaged in their duties as public servants. “State action for § 1983 purposes is not necessarily co-extensive with state action for which qualified immunity is available.” Bracken v. Okura, 869 F.3d 771, 776, 778 (9th Cir. 2017) (explaining that the inquiry is whether the person acted “in performance of public duties” or to “carry out the work of government.”). Thus, when an off-duty police officer, wearing his uniform, is working as a private security guard, qualified immunity does not apply, even if the off-duty work is with the consent of the police department and the off-duty officer may be found to have been acting under the color of state law. Id. at 776-78 (stating that qualified immunity would not be available when a government officer uses the badge of his authority in service of a private non-governmental goal).  

6.    State-Created Danger  

            “As a general rule, members of the public have no constitutional right to sue [public] employees who fail to protect them against harm inflicted by third parties.” Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018) (quoting L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992)). One exception to this general rule is the state-created danger doctrine. Under this exception, a government employee must have affirmatively placed the plaintiff in a position of danger, that is, the employee’s actions must have created or exposed an individual to a danger that he or she would not have otherwise faced. Id. To prove that the exception applies, “[t]he affirmative act must create an actual, particularized danger,” “the ultimate injury to the plaintiffs must be foreseeable,” and “the employees must have . . . acted with ‘deliberate indifference’ to a ‘known or obvious danger.’” Id. (citations omitted). As an example, it was not clearly established that at the time a police officer disclosed the victim’s confidential report of domestic violence to the victim’s alleged abuser, who was another police officer, such disclosure violated victim’s substantive due process rights under the state-created danger doctrine. The disclosing officer was entitled to qualified immunity from the victim’s § 1983 substantive due process claim. Martinez, 91 F.4th at 1031-32 (“[W]e now clarify that right going forward. An officer is liable under the state-created danger doctrine when the officer discloses a victim's confidential report to a violent perpetrator in a manner that increases the risk of retaliation against the victim.”). For a discussion of the state-created danger doctrine and the clearly established requirement in the context of a state prison exposing guards and inmates to a heightened danger from COVID‑19, see Polanco, 76 F.4th at 926-31. For a discussion of foster children’s clearly established right to state protection in the supervision, protection, and safe foster care placement by a social worker, see Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 846-47 (9th Cir. 2010).  

7.    Fourteenth Amendment 

There is a clearly established Fourteenth Amendment right to bodily privacy. Vazquez v. County of Kern, 949 F.3d 1153, 1165 (9th Cir. 2020) (stating that a correctional officer at a juvenile detention facility was not entitled to qualified immunity for allegedly violating female ward’s Fourteenth Amendment right to bodily privacy by peering through a gap in a curtain to shower stalls so that he could observe inmate as she showered in violation of clearly established law, “the Juvenile Hall administrative policies, and the training [defendant] likely attended.”). The Ninth Circuit has held that “casual, restricted, and obscured viewing of a prison inmate’s naked body is constitutionally permitted if it is justified by legitimate government interests such as prison security needs.” Ioane v. Hodges, 939 F.3d 945, 957 (9th Cir. 2019).  

There is a clearly established Fourteenth Amendment right “to be free from judicial deception in child custody proceedings.” Benavidez v. County of San Diego, 993 F.3d 1134, 1152-53 (9th Cir. 2021) (stating that county social workers were not entitled to qualified immunity for obtaining medical examinations of children that they had removed from parents’ home by means of knowingly or recklessly false representations to the juvenile court judge who authorized the examinations).  

In Gordon, the Ninth Circuit stated that “[w]e now hold that pre-trial detainees do have a right to direct-view safety checks sufficient to determine whether their presentation indicates the need for medical treatment.” Gordon, 6 F.4th at 973 (“[L]aw enforcement and prison personnel should heed this warning because the recognition of this constitutional right will protect future detainees.”); see also Sandoval,985 F.3d at 679-81 (holding it was clearly established that nurses at county jail were not entitled to qualified immunity for their alleged conduct in failing to monitor pretrial detainee who exhibited severe sweating, shaking, and other symptoms of being under the influence of drugs for several hours and failing to provide or obtain any medical treatment for detainee).

In Scott v. Smith, 109 F.4th at 1229-30, the Ninth Circuit recognized as a clearly established right under the Fourteenth Amendment “going forward,” that a child has a constitutionally protected interest in the companionship of a parent.  That right is violated by an officer's “conscience shocking” conduct, where the victim presents no immediate risk, was unarmed and in mental distress, complied with officers’ orders and was not suspected of a crime, who was then forcefully restrained through the officers’ bodyweight, and shortly after lost consciousness and was later pronounced dead.

In K.J. v. Jackson, 127 F.4th 1239, 1250 (9th Cir. 2025) (citing Goss v. Lopez, 419 U.S. 565 (1975)), the Ninth Circuit recognized as a clearly established right under the Fourteenth Amendment that a student facing suspension or extended suspension based on “a new accusation” has a right to “oral or written notice of the charges,” “an explanation of the evidence the authorities have in support of that charge,” and “an opportunity to present his side of the story” in response.    

8.    Monell Liability  

Qualified immunity does not apply to municipalities. Owen v. City of Independence, 445 U.S. 622, 645-47 (1980); Allen v. Santa Clara Cnty Corr. Peace Officers Ass’n, 38 F.4th 68, 71 (9th Cir. 2022) (“[P]recedent recognizes that municipalities are generally liable in the same way as private corporations in § 1983 actions” and a good faith defense may apply in limited circumstances).

The Ninth Circuit has rejected the view that municipal liability is precluded as a matter of law under § 1983 when the individual officers are exonerated of constitutional wrongdoing. Richards v. County of San Bernardino, 39 F.4th 562, 574 (9th Cir. 2022). If a plaintiff established he suffered constitutional injury by the county, the fact that individual officers are exonerated is immaterial to liability under § 1983. Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1250 n.12 (9th Cir. 2016) (citing Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002)). “This is true whether the officers are exonerated on the basis of qualified immunity, because they were merely negligent, or for other failure of proof.” Fairley, 281 F.3d at 917 n.4.

For instructions against local governing bodies, see the following: 9.5 (Section 1983 Claim Against Local Governing Body Defendants Based on Unlawful Official Policy, Practice, or  Custom—Elements and Burden of Proof), 9.6 (Section 1983 Claim Against Local Governing Body Defendants Based on Act of Final Policymaker—Elements and Burden of Proof), 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof), and 9.8 (Section 1983 Claim Against Local Governing Body Defendants Based on a Policy that Fails to Prevent Violations of Law or a Policy of Failure to Train—Elements and Burden of Proof).   

Qualified Immunity at Trial    

           In most cases in which qualified immunity remains an issue at trial, the court will have found some underlying factual dispute that precluded a pretrial ruling. Qualified immunity is then transformed from a doctrine providing immunity from suit to one providing a defense at trial. See Torres,548 F.3d at 1211 n.9. When a case proceeds to trial “qualified immunity can no longer rightly be called an ‘immunity from suit’ (since the suit has already proceeded to its conclusion); rather, it is now effectively a defense.” Sloman v. Tadlock, 21 F.3d 1462, 1468 n.6 (9th Cir. 1994).  

A dilemma arises when a qualified immunity case goes to trial because disputed factual issues remain. Torres, 548 F.3d at 1211 n.9. When there are disputed factual issues that are necessary to a qualified immunity decision, these issues must first be determined by the jury before the court can rule on qualified immunity. Morales, 873 F.3d at 824. “[C]omparing a given case with existing statutory or constitutional precedent is quintessentially a question of law for the judge, not the jury. A bifurcation of duties is unavoidable: only the jury can decide the disputed factual issues, while only the judge can decide whether the right was clearly established once the factual issues are resolved.” Id.  

 Special interrogatories to the jury can be used to establish disputed material facts. Morales, 873 F.3d at 824 (acknowledging jury interrogatories should be restricted to the who-what-when-where-why type of historical fact issues) (citing cases from the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Eleventh, and District of Columbia Circuits); Conner v. Heiman, 672 F.3d 1126, 1131 n.2 (9th Cir. 2012) (“while determining the facts is the jury’s job (where the facts are in dispute), determining what objectively reasonable inferences may be drawn from such facts may be determined by the court as a matter of logic and law.”). When the qualified immunity issue goes to trial, the jury itself decides the issues of historical fact that are determinative of the qualified immunity defense, but the jury does not apply the law relating to qualified immunity to those historical facts it finds; that is the court’s duty. Morales, 873 F.3d at 824-25. Thus, consistent with this case law, there may be particular cases in which a special verdict on a discrete fact is warranted in order to resolve a qualified immunity claim.  

But a special verdict is not required in every qualified immunity case involving disputed issues of material fact for the purpose of evaluating a post-verdict qualified immunity defense. See Lam v. City of San Jose, 869 F.3d 1077, 1086 (9th Cir. 2017) (“[T]he decision ‘whether to submit special interrogatories to the jury is a matter committed to the discretion of the district court’”), citing Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 522 (9th Cir. 1999) (stating that submitting special interrogatories to the jury is a matter of trial court discretion, but that “[w]e now expressly hold that a district court shall disclose [to the parties] at least the substance of special interrogatories before closing arguments have been completed”)); Sloman, 21 F.3d at 1468 (noting that sending the factual issues to the jury but reserving to the judge the ultimate “reasonable officer” determination leads to serious logistical difficulties: “Special jury verdicts would unnecessarily complicate easy cases, and might be unworkable in complicated ones”).  

At trial a litigant may preserve the qualified immunity issue by making a Rule 50(a) motion for judgment as a matter of law. Whether the right was clearly established is an issue for a judgment as a matter of law under Rule 50(a) and (b) and should be preserved in a Rule 50(a) motion at the close of evidence and then revisited, if appropriate, after the verdict in a Rule 50(b) motion. Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1083 (9th Cir. 2009) (“When a qualified immunity claim cannot be resolved before trial due to a factual conflict, it is a litigant’s responsibility to preserve the legal issue for determination after the jury resolves the factual conflict. A Rule 50(a) motion meets this requirement.”); Lam, 869 F.3d at 1089 (stating that the qualified immunity defense at trial is waived by “failure to preserve the defense by filing rule 50 motions”); see also A.D. v. Cal. High. Patrol, 712 F.3d 446, 452 n.2 (9th Cir. 2013) (noting that the defendant preserved his position on qualified immunity—renewed in Rule 50(b) motion after trial—by bringing Rule 50(a) motion for judgment as a matter of law before the case was submitted to jury). “[P]ost-verdict, a court must apply the qualified immunity framework to the facts that the jury found (including the defendant’s subjective intent).” A.D., 712 F.3d at 459. 

Please also refer to the Ninth Circuit Section 1983 Outline [1] for further discussion of qualified immunity cases maintained therein.  

Revised March 2025

9.35 Bivens Claim Against Federal Defendant in Individual Capacity—
Elements and Burden of Proof

            The plaintiff brings [his] [her] [other pronoun] claim[s] under a Supreme Court decision known as “Bivens,” which permits a plaintiff to seek damages from any person who, acting under color of federal law, deprives the plaintiff of certain rights, privileges, or immunities secured by the Constitution of the United States.

            To prevail on [his] [her] [other pronoun] Bivens claim against the defendant, the plaintiff must prove each of the following elements by a preponderance of the evidence:

First, the defendant acted under color of federal law; and

Second, the [act[s]] [failure to act] of the defendant deprived the plaintiff of [his] [her] [other pronoun] particular rights under the United States Constitution, as explained elsewhere in these instructions.

            A person acts “under color of federal law” when the person acts or purports to act in the performance of official duties under any federal law.  [[The parties have stipulated] [I instruct you] that the defendant acted under color of federal law.]

            If you find the plaintiff has proved each of these two elements, and if you also find that the plaintiff has proved all the elements [he] [she] [other pronoun] is required to prove under Instruction[s] [specify the instruction[s] that deal[s] with the particular right[s]], your verdict should be for the plaintiff.  If, on the other hand, you find that the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant. 

Comment 

            In 1971, the Supreme Court in Bivens adopted an “implied cause of action theory” that permits a plaintiff to seek damages from federal officers for the unreasonable search and seizure in plaintiff’s home.  See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).  Since then, the Supreme Court has limited the scope of Bivens actions. SeeEgbert v. Boule, 596 U.S. 482 (2022). Egbert “emphasized that recognizing a cause of action under Bivens is a ‘disfavored judicial activity.’” Id. at 491 (quoting Ziglar v. Abassi, 582 U.S. 120, 121 (2017)).

         With that consideration in mind, Egbert explained that to determine whether a Bivens remedy exists in a particular case, the court must undertake a two-step process. At the first step, a court must “ask whether the case presents a new Bivens context—i.e., is it meaningfully different from the three cases in which the [Supreme] Court has implied a damages action.” Egbert, 596 U.S. at 492 (internal quotations and alterations omitted). The three cases in which the Supreme Court has held that the Constitution provides an implied cause of action through which plaintiffs can seek damages from federal officers who violate their constitutional rights are Bivens, in which the Court held that a plaintiff could seek damages from the Federal Bureau of Narcotics agents who allegedly violated his Fourth Amendment right to be free from unreasonable searches and seizures; Davis v. Passman, 442 U.S. 228 (1979), in which the Court provided a remedy for the plaintiff who alleged that her employer, a Member of Congress, had discriminated against her because of her sex, which was a Fifth Amendment due process violation; and Carlson v. Green, 446 U.S. 14 (1980), in which the Court held that the estate of a deceased prisoner could seek damages from federal prison officials for violating the prisoner’s Eighth Amendment right to be free from cruel and unusual punishment. Pettibone v. Russell, 59 F.4th 449, 454 (9th Cir. 2023). In Pettibone, the Ninth Circuit explained that the plaintiff’s asserted Bivens claim that the defendant violated the Fourth Amendment presented a new context because the federal officer defendant was of a different rank than the officers in Bivens, his actions took place at a higher level of generality than the Bivens officers, his legal mandate of directing a multi-agency operation to protect federal property was under an executive order, and providing a Bivens remedy would create an increased risk of disruptive intrusion by the courts into the other branches’ functioning. Id. at 455, 457 (concluding that “no Bivens cause of action exists in this case”). 

The Ninth Circuit likewise rejected a claim in Mejia v. Miller, 61 F.4th 663, 668-69 (9th Cir. 2023), where the plaintiff’s Bivens excessive force claim against Bureau of Land Management (BLM) agents created a new context because the alleged conduct occurred on public lands, not in the plaintiff’s home, and a Fourth Amendment claim against BLM agents would have “systemwide consequences” for BLM’s mandate to maintain order on public lands. Further, in Harper v. Nedd, 71 F.4th 1181, 1187-8 (9th Cir. 2023), the court held that the employee plaintiff’s Fifth Amendment due process Bivens claim presented a new context from Davis, “because extending Bivens to allow government employees to sue their supervisors for damages over disciplinary actions would significantly intrude into [the Executive Branch in addressing disciplinary disputes].” See also Sheikh v. U.S. Dep’t of Homeland Sec., 106 F.4th 918, 926 (9th Cir. 2024) (holding Fourth and Fifth Amendment claims based on alleged fabrication of evidence by Department of Homeland Security agents arose in a new context from Bivens, and special factors counseled against extending Bivens to new context).

On the other hand, the Ninth Circuit has held that a prisoner’s claim of deliberate medical indifference under the Eighth Amendment was not meaningfully different from Carlson because, applying the Ziglar factors, the plaintiff’s claim involved an officer of the same rank, it implicated the same constitutional right, the claim was of the same specificity, there was extensive judicial guidance on how an officer should respond to the problem, the officer operated under the same legal framework, and there was the same risk of judicial disruption by recognizing a cause of action. Watanabe v. Derr, 115 F.4th 1034, 1039-40 (9th Cir. 2024).  In Watanabe , the Ninth Circuit rejected the defendant’s arguments that Watanabe’s claim meaningfully differed from Carlson because Watanabe’s injury was less serious or that a distinction existed based on whether the allegedly unconstitutional conduct was an overt act or an omission. Id. at 1041-42 (collecting cases). The Ninth Circuit also clarified that consideration of alternative remedial schemes is improper during the first step and is only relevant at step two. Id. at 1042. 

If the answer at the first step is yes, meaning that the “claim arises in a new context,” the second step dictates that “a Bivens remedy is unavailable if there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” Egbert, 596 U.S. at 492 (quoting Ziglar, 582 U.S. at 136). “If there is even a single ‘reason to pause before applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Id. (quoting Hernández v. Mesa, 589 U.S. 93, 102 (2020)). For example, “a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure.’” Id. at 493 (quoting Ziglar, 582 U.S. at 137); accord Harper, 71 F.4th at 1188 (noting that Congress provided alternative remedies for employment disputes which the plaintiff pursued). The existence of an alternative remedial structure precludes a Bivens action even where the available remedial scheme does not provide monetary relief. Pettibone, 59 F.4th at 457; see also Stanard v. Dy, 88 F.4th 811, 818 (9th Cir. 2023) (concluding Fifth Amendment claim for disparate treatment between pre-trial and post-sentencing inmates arises in new context but special factors existed, therefore Bivens remedy not available). Nor may a Bivens cause of action lie “where . . . national security is at issue.” Egbert, 596 U.S. at 494. See also Pettibone, 59 F.4th at 455 (holding that Bivens remedy cannot be extended where, “because [defendant] was carrying out an executive order, providing a Bivens remedy. . . would carry a greater risk of ‘disruptive intrusion by the Judiciary into the functioning of other branches’ than was present in Bivens.”) (quoting Ziglar, 582 U.S. at 122). See also Marquez v. Rodriguez, 81 F.4th 1027, 1031 (9th Cir. 2023) (rejecting the Bivens claim of a pretrial detainee alleging that federal correctional officers failed to protect him from other detainees because the claim presents a new Bivens context, there were no special factors, and Congress has already legislated on prison administration without providing a damages remedy against jail officials); Mejia, 61 F.4th at 669 (explaining plaintiff has alternative remedies to address his grievance). 

            A Bivens defendant is at risk of personal liability, including punitive damages, and a plaintiff is entitled to a jury trial in a Bivens action. See Carlson, 446 U.S. at 22. Because a Bivens action is brought against a federal official in the official’s personal capacity, it is not considered to be an action against the United States and thus is not barred by sovereign immunity. To be individually liable in a Bivens action, an individual must personally participate in an alleged deprivation of rights. See Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010). In a Bivens action, as with a § 1983 action, “the plaintiff must also demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.” Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). “To meet this causation requirement, the plaintiff must establish both causation-in-fact and proximate causation.” Id.           

            In a Bivens action, a supervisor can be held liable in his or her individual capacity only if (1) he or she personally participated in the constitutional violation, or (2) there is a “sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989); see also Chavez v. United States, 683 F.3d 1102, 1110 (9th Cir. 2012) (“[T]aking qualified immunity into account, a supervisor faces liability under the Fourth Amendment only where it would be clear to a reasonable [supervisor] that his conduct was unlawful in the situation he confronted.” (quotation marks omitted; first brackets added; second brackets in original)). Moreover, for liability to attach, supervisors must have actual supervisory authority over the government actor who committed the alleged violations. See Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018). In other words, “[t]hey cannot be supervisors of persons beyond their control.” Id. 

            If the plaintiff alleges that a supervisor personally participated in a constitutional violation, use the instruction shown above. If, however, the plaintiff alleges that a subordinate committed a constitutional violation and there is a causal connection between the violation and the supervisor’s wrongful conduct, use Instruction 9.4 (Section 1983 Claim Against Supervisory Defendant in Individual Capacity—Elements and Burden of Proof) and replace “state law” with “federal law.” 

            One of the defenses that may be available to a federal official in a Bivens lawsuit is official immunity from actions for damages. There are two types of official immunity available as affirmative defenses: absolute and qualified. Absolute immunity is often granted to judges, prosecutors, legislators, and the President, so long as they are acting within the scope of their duties. Trump v. United States, 603 U.S. -, 144 S. Ct. 2312, 2331 (2024) (discussing the scope of absolute presidential immunity as within the outer perimeter of his official responsibility). Qualified immunity applies to all other federal officials. See Harlow v. Fitzgerald, 457 U.S. 800, 807-808 (1982). “For purposes of immunity, we have not distinguished actions brought under 42 U.S.C. § 1983 against state officials from Bivens actions brought against federal officials.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 433 n.5 (1993). For a discussion of qualified immunity under § 1983, see Comment at Instruction 9.34 (Qualified Immunity). 

Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9–9.33, modified as necessary to reflect that the defendant is a federal actor, not a state actor. Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of a particular constitutional right.                                                                                                                                                                                                                                                                                                                                                                             

Revised March 2025