WPI 343.08 Conditions of Confinement—Eighth Amendment—Excessive Force—Burden of Proof on the Is...
6A WAPRAC WPI 343.08Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 343.08 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XVII. Civil Rights
Chapter 343. Civil Rights—Conditions of Confinement
WPI 343.08 Conditions of Confinement—Eighth Amendment—Excessive Force—Burden of Proof on the Issues
(Name of plaintiff)claims that(name of defendant)subjected(name of plaintiff)to a deprivation of [his] [her] Eighth Amendment constitutional right to be free from cruel and unusual punishment while incarcerated.
(Name of plaintiff)has the burden of proving each of the following propositions:
(1) That(name of plaintiff)was [imprisoned] [in custody] and(name of defendant)used force against [him] [her];
(2) That(name of defendant's)use of force against(name of plaintiff)was excessive and unnecessary;
(3) That(name of defendant)used force maliciously and sadistically for the purpose of causing harm [and not in a good faith effort to achieve a legitimate purpose];
(4) That(name of defendant)was acting under color of law; and
(5) That(name of defendant's)actions [proximately] caused injury or damage to(name of plaintiff).
In determining whether(name of defendant)used excessive and unnecessary force in this case, consider all of the circumstances known to the officer[s] on the scene [including but not limited to:
(1) The need to use force;
(2) The balance between the purpose for which(name of defendant)used force and the amount of force employed to serve that purpose;
(3) Whether(name of plaintiff)reasonably appeared to pose an immediate threat to(name of defendant)or others;
(4) Any efforts that were made to temper the severity of the force;
(5) Extent of injury.]
A small or insignificant injury does not, standing alone, prove that the force was or was not excessive.
NOTE ON USE
Use this instruction for an Eighth Amendment claim involving force used by corrections officers or other state officials.
Modify this instruction for an excessive force claim made by an inmate who has not been convicted and sentenced. See the Comment below for a discussion of the standards applicable to pre-conviction detention.
Use this instruction with WPI 340.01 (Claims Instruction for Section 1983 Cases) and WPI 340.03 (Civil Rights—“Under Color of Law”—Definition). Use this instruction in place of WPI 340.02 (Civil Rights—Individual Defendant—Burden of Proof on the Issues).
For discussions of causation and the bracketed word “proximately,” see the Comments to WPI 340.02 (Civil Rights—Individual Defendant—Burden of Proof on the Issues), WPI 340.04 (Civil Rights—“Subjects” and “Causes to be Subjected”—Definition), and WPI 340.06 (Causation—Comment Only).
Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of Evidence).
COMMENT
Prior to this edition, this instruction was designated as WPI 343.05. The instruction has been revised for this edition.
See the Comment to WPI 343.00 (Introduction—Conditions of Confinement—Eighth Amendment and Fourteenth Amendment) for a discussion of this and other Eighth and Fourteenth Amendment conditions of confinement claims.
The Eighth Amendment prohibits cruel and unusual punishment in prison; a prison official violates the Eighth Amendment if he or she uses force maliciously and sadistically for the purpose of causing harm, regardless of the degree of harm actually inflicted. Wilkins v. Gaddy, 559 U.S. 34, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010); Hudson v. McMillian, 503 U.S. 1, 4, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The plaintiff must show that the use of force is of a sort “repugnant to the conscience of mankind”, or that his or her injuries were more than de minimis. Wilkins v. Gaddy, 559 U.S. at 37–38.
Likewise, the Supreme Court has applied this standard to use of force during a prison riot: “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers, 75 U.S. 312, 320–21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), abrogated on other grounds in Wilkins v. Gaddy, 559 U.S. 34.
Factors listed for consideration by the jury are similar to those described in Ninth Circuit Pattern Civil Instruction 9.26 (2007).
If some or all of the allegations are that the defendant did not directly take action or fail to take action regarding the risks alleged by plaintiff, but instead defendant caused the plaintiff to be harmed by deliberate indifference because of the acts or omissions of others under official policies, the instruction will need to be modified accordingly.
Excessive force claims prior to conviction and sentencing. Claims of excessive force by inmates who have not been convicted and sentenced are analyzed under a Fourteenth Amendment objective reasonableness standard. Kingsley v. Hendrickson, U.S. , 135 S.Ct. 2466, 2472–73, 192 L.Ed.2d 416 (2015). This instruction should be modified for use in a claim of excessive force under the Fourteenth Amendment.
The Fourth Amendment may also apply. In Graham v. Connor, 490 U.S. 386, 395 n.10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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 has 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). If the court finds that a Fourth Amendment claim is viable, see WPI 342.01 (Unreasonable Force—Fourth Amendment—Burden of Proof on the Issues), WPI 342.02 (Definition of “Seizure” of a Person—Fourth Amendment), and WPI 342.03 (Definition of Unreasonable Force—Fourth Amendment) regarding the applicable pattern jury instruction.
[Current as of September 2018.]
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