9.22 PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—EXCESSIVE (NONDEADLY) FORCE
In general, a seizure of a person is unreasonable under the Fourth Amendment if a police officer uses excessive force [in making a lawful arrest] [and] [or] [in defending [himself] [herself] [others]. Thus, in order to prove an unreasonable seizure in this case, the plaintiff must prove by a preponderance of the evidence that the officer[s] used excessive force when [insert factual basis of claim].
Under the Fourth Amendment, a police officer may only use such force as is "objectively reasonable" under all of 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.
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 severity of the crime or other circumstances to which the officer[s] [was] [were] responding;
2. Whether the plaintiff 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 and any changing circumstances during which the officer had to determine the type and amount of force that appeared to be necessary;
5. The type and amount of force used;
[6. The availability of alternative methods [to take the plaintiff into custody] [to subdue the plaintiff;]
[7. Other factors particular to the case.]
Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.2–9.7 and in conjunction with Instruction 9.18 (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 set forth in Graham v. Connor, 490 U.S. 386, 397 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985). See also Blanford v. Sacramento County, 406 F.3d 1110, 1115 (9th Cir.2005); Smith v. City of Hemet, 394 F.3d 689, 700–01 (9th Cir.), cert. denied, 545 U.S. 1128 (2005). The Ninth Circuit has held, however, that "Garner and Graham set forth somewhat different standards for proving a Fourth Amendment excessive force violation. . . . The Garner standard, if not subsumed into the more general Graham formula, however, can apply only when deadly force has been used." Quintanilla v. City of Downey, 84 F.3d 353, 357 (9th Cir.1996).
In Blanford and Jackson v. City of Bremerton, cases involving claims of excessive, nondeadly force, the Ninth Circuit reiterated that the Graham standards were applicable:
"Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual"s Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396. . . . . This balancing test entails consideration of the totality of the facts and circumstances in the particular case, including "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id.
Blanford, 406 F.3d at 1115. Similarly, in Jackson, the court held that 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. Jackson , 268 F.3d 646, 651 (9th Cir.2001). The Jackson Court said that ". . . the court’s consideration of reasonableness must embody 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." Id. (citations omitted). "‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers’ [sic] violates the Fourth Amendment." Id. (quoting Graham, 490 U.S. at 396) (citations omitted). "In evaluating the nature and quality of the intrusion, [a court] must consider ‘the type and amount of force inflicted’" in making an arrest. Id. at 651-52 (quoting Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir.1994)).
Moreover, as the Ninth Circuit has noted, the Supreme Court did not limit the reasonableness inquiry to the factors set forth in Graham:
Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application," the reasonableness of a seizure must instead be assessed by carefully considering the objective facts and circumstances that confronted the arresting officers. In some cases, for example, the availability of alternative methods of capturing or subduing a suspect may be a factor to consider.
Smith v. City of Hemet, 394 F.3d at 701 (citations omitted).
On the other hand, 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). If "it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining, under Graham, the reasonableness of the force employed." Drummond v. City of Anaheim, 343 F.3d 1052, 1058 (9th Cir.2003).