Evolving Jury Instructions for Police Liability Claims/Articles/CLM Magazine

October 14, 2020

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Few moments have captivated an entire nation and pushed its institutions to change like what we are witnessing after the death of George Floyd on May 25, 2020, which has resulted in nationwide protests and calls for racial equality.

Recent events and protests have drawn particular attention to our nation’s policing practices. While there are no national policing standards for the nearly 18,000 law enforcement agencies across the country, some states have already introduced or passed reforms to police practices. The conversation surrounding police reform has frequently centered on police unions, use-of-force policies, transparency regarding discipline records, qualified immunity, and even calls to defund or abolish the police. But for California cities and counties and their law enforcement agencies, they are seeing change and pressure from a less notable source—jury instructions.

In California, the Advisory Committee on Civil Jury Instructions has posted proposed additions and revisions to the Judicial Council of California Civil Jury Instructions (CACI). The Advisory Committee is responsible for regularly reviewing case law and statutes affecting jury instructions, and for making recommendations to the Judicial Council for updating, revising, and adding topics to the council’s civil jury instructions. Some of the current proposals that are open for public comment strike at the heart of police liability claims.

The Advisory Committee is proposing revisions to three of its civil jury instructions relating to police liability while also adding a new jury instruction. Of particular note is a proposed revision to CACI 440, presently titled, “Unreasonable Force by Law Enforcement Officer in Arrest or Other Seizure Essential Factual Elements,” and the addition of a new instruction specific to deadly force. Presently, there is a single instruction for unreasonable force cases, regardless of whether the case involves non-deadly or deadly force.

The terms “unreasonable force” and “excessive force” have been a bedrock for evaluating police misconduct. Those terms have not only been used in countless judicial opinions, but also have found their way into the mainstream, with even non-lawyers and potential jurors being familiar with the terms. But the current proposal includes changing the title of CACI 440 to “Negligent Use of Nondeadly Force by Law Enforcement Officer in Arrest or Other Seizure—Essential Factual Elements.” The new proposed title doesn’t quite roll off the tongue as well as “unreasonable force,” but the proposed change doesn’t affect the substantive elements and instead highlights the distinction between intentional and negligent tort theories relating to use-of-force claims against police. Although a negligence theory and intentional tort theory are seemingly inconsistent, the proposed changes make clear that these inconsistent theories can still be pursued together for unreasonable force claims.

The proposed changes to CACI 440 also serve to compliment a new proposed instruction titled, “Negligent Use of Deadly Force by Peace Officer—Essential Factual Elements.” The new instruction reflects a change in law in California (California Penal Code § 835a) that creates a separate, higher standard that authorizes a peace officer to use deadly force only when “necessary in defense of human life.”

Another proposed change is to CACI 1305, titled, “Battery by Peace Officer—Essential Factual Elements.” The primary change proposed to this instruction is to make it consistent with the new California standard for use of deadly force by peace officers—that deadly force may only be used where necessary in defense of human life.

Most attorneys and claims professionals are adept at keeping apprised of new laws and important judicial opinions that will or may impact claims and litigation. But changes to jury instruction can go unnoticed until just before trial when attorneys are preparing to submit their jury instructions to the court. The recent proposed changes to jury instructions in California by the Advisory Committee on Civil Jury Instructions are an important reminder for all attorneys and claims professionals to pay attention to changes to jury instructions in your respective jurisdictions and area of practice. Oftentimes, like the case in California, there is opportunity to provide input and comment upon proposed changes.