9.11 PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEARCH—GENERALLY
As previously explained, the plaintiff has the burden to prove that the act[s] of the defendant[s] [name[s]] deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant[s] deprived [him] [her] of [his] [her] 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]. In order 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. [Name[s] of applicable defendant[s]] searched the plaintiff’s [person] [residence] [vehicle] [other];
2. in conducting the search, [name[s]] acted intentionally; and
3. the search was unreasonable.
[A person acts "intentionally" when the person acts with a conscious objective to engage in particular conduct. Thus, the plaintiff must prove the defendant meant to search the plaintiff’s [person] [residence] [vehicle] [other]. Although the plaintiff does not need to prove the defendant intended to violate the plaintiff’s Fourth Amendment rights, it is not enough if the plaintiff only proves the defendant acted negligently, accidentally or inadvertently in conducting the search.]
Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.2–9.7, and an applicable definition of an unreasonable search, such as Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest) and Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Consent). 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).
Section 1983 "contains no independent state-of-mind requirement" apart from what is necessary to state a violation of the underlying constitutional right. 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). 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) (citations omitted). Instead a plaintiff must prove the defendant acted with the mental state necessary to show a violation of a particular right.
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). 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.
The last paragraph of this instruction includes an optional definition of the term "intentionally" for use when it would be helpful to the jury.