WPI 342.03 Definition of Unreasonable Force—Fourth Amendment

Use this instruction with WPI 342.01 (Unreasonable Force—Fourth Amendment—Burden of Proof on the Issues) and WPI 340.01 (Claims Instruction for Section 1983 Cases) if the case involves an unreasonable force claim under the Fourth Amendment. Do not use this instruction if the claim is excessive use of force involving a plaintiff who is incarcerated pursuant to a judgment and sentence. See the Comment to WPI 342.01 (Unreasonable Force—Fourth Amendment—Burden of Proof on the Issues). For excessive force claims that involve persons who are in custody, serving a sentence after being convicted of a crime, see WPI 343.08 (Conditions of Confinement—Eighth Amendment—Excessive Force—Burden of Proof on the Issues).

The court may include a reference to factors that reflect relevant circumstances, presented here in brackets, if the specific factor is supported by substantial evidence at trial.

As the majority of unreasonable force cases involve police officers, the language of the jury instruction refers to police officers; the instruction will need to be modified appropriately if the defendant or defendants are other individuals acting under color of state law.

See the Comment for discussion of the following issues: excessive force claims concerning persons who have been arrested, but not yet charged with a crime; excessive force claims concerning persons who have been charged with a crime, but have not yet been sentenced; claims concerning bystanders affected by police conduct during someone else's arrest or seizure.

This instruction has been revised for this edition. Subsection (i) has been added to the instruction. See Tennessee v. Garner, 471 U.S. 1, 11–12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

General background. This instruction is based on Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), Graham v. Connor, 490 U.S. 386, 396–97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and Tennessee v. Garner, 471 U.S. 1, 11–12, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). See generally Luchtel v. Hagemann, 623 F.3d 975, 980–83 (9th Cir. 2010) (examining factors and deciding as a matter of law that force was reasonable). The factors in the instruction above are similar to those described in the Ninth Circuit Model Civil Jury Instruction 9.22 (2007).

With regard to avoiding comments on the evidence, see the Comment to WPI 340.01 (Claims Instruction for Section 1983 Cases).

In Graham, the U.S. Supreme Court concluded that the test of reasonableness in the use of force or threat of force to arrest or stop is “not capable of precise definition or mechanical application,” and therefore:

Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (citations omitted).

The balancing test is the same when police use deadly force. Scott v. Harris, 550 U.S. 372, 382–83,127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); see also, Estate of Lee v. City of Spokane, 101 Wn.App. 158, 163–70, 2 P.3d 979 (2000).

In Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir. 2000), the court discussed the appropriateness of the instruction focusing on the totality of the circumstances, rather than a list of particular factors. See also Robinson v. Solano County, 278 F.3d 1007 (9th Cir. 2002) (citing Graham).

Persons who have been arrested, but not yet charged—Persons who have been charged but not yet subject to judgment and sentence—Fourth and Fourteenth Amendment standards. There is considerable debate about the analysis for use-of-force claims involving a person in custody after arrest but before any judgment and sentence are entered. See Graham v. Connor, 490 U.S. at 395 n.10; see also County of Riverside v. McLaughlin, 500 U.S. 44, 52–57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); City of Revere v. Mass. Gen'l Hosp., 463 U.S. 239, 243–44, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983); Bell v. Wolfish, 441 U.S. 520, 535–39, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Gerstein v. Pugh, 420 U.S. 103, 111–26, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The Supreme Court addressed unlawful pretrial detention claims in Manuel v. City of Joliet, U.S. , 137 S.Ct. 911, 197 L.Ed.2d 312 (2017), and determined that the Fourth Amendment governs unlawful pretrial detention claims, but did not address unconstitutional use of force.

In Pierce v. Multnomah County, 76 F.3d 1032, 1042 (9th Cir. 1996), the court relied on the Fourth Amendment to analyze a use-of-force claim regarding a pretrial detainee. In Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir. 2004), the court relied on the Fourteenth Amendment to analyze a conditions of confinement claim regarding pretrial detainees. See also White v. Roper, 901 F.2d 1501, 1506–07 (9th Cir. 1990) (recognizing the different approaches under the Fourth and Fourteenth Amendments). For a detailed discussion of the different standards, see Comment, The Antithetical Definition of Personal Seizure: Filling the Supreme Court Gap in Analyzing Section 1983 Excessive-Force Claims Arising After Arrest and Before Pretrial Detention, 59 Cath. U. L. Rev. 493 (2010); Note, Judicial Illumination of the Constitutional “Twilight Zone”: Protecting Post-Arrest Pretrial Suspects from Excessive Force at the Hands of Law Enforcement, 44 Boston C. L. Rev. 1351 (2003).

Bystanders. For Section 1983 claims by bystander plaintiffs, who are neither seized by police nor in custody, if the alleged harm occurred while police were in hot pursuit of a suspect, the Fourteenth Amendment applies and the standard is the same as in Whitley v. Albers, 475 U.S. 312, 320–21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). The test for reasonableness of force in such circumstances is whether the challenged governmental action is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” and “whether force was applied in a good faith effort [to subdue a suspect] or [was used] maliciously and sadistically for the very purpose of causing harm.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 853, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); see generally Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed.2d 183 (1952).

When the claim involves a bystander inadvertently stung by police using pepper spray to subdue a crowd, this Fourteenth Amendment standard has been used. Logan v. City of Pullman, 392 F.Supp.2d 1246, 1263–65 (E.D. Wash. 2005). However, if a potential suspect is affected by pepper spray, the use of that chemical device may itself constitute a seizure and trigger the Fourth Amendment use-of-force standard. See State v. Garcia, 147 N.M. 134, 140–42, 217 P.3d 1032 (2009) (examining the question of whether effect of pepper spray on suspect constituted a seizure under California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)); see also Nelson v. City of Davis, 709 F.Supp.2d 978, 987–90 (E.D. Cal. 2010), affirmed, 685 F.3d 867 (9th Cir. 2012) (police used pepper ball launcher to lob pepper spray at group of party-goers in an attempt to quell a large and violent crowd; a pepper spray ball hit plaintiff in the eye; the court determined that plaintiff was probably among a sub-group in a particular location specifically targeted by police; because the facts alleged in summary judgment documents showed plaintiff was within a group identified as potential suspects, there was a genuine question of material fact for the jury—whether plaintiff was seized by use of the pepper ball on that group; the court analyzed use of force, and the issue of qualified immunity, under the Fourth Amendment standard).