9.18 PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—GENERALLY
As previously explained, the plaintiff has the burden to prove that the act[s] of the defendants [name[s]] deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant 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 seizure of [his] [her] person. 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]] seized the plaintiff’s person;
2. in seizing the plaintiff’s person, [name[s] of same person[s]] acted intentionally; and
3. the seizure was unreasonable.
A defendant "seizes" the plaintiff’s person when [he] [she] restrains the plaintiff’s liberty by physical force or a show of authority. A person’s liberty is restrained when, under all of the circumstances, a reasonable person would not have felt free to ignore the presence of law enforcement officers and to go about [his] [her] business.
In determining whether a reasonable person in the plaintiff’s position would have felt free to leave, consider all of the circumstances, including
1. the number of officers present;
2. whether weapons were displayed;
3. whether the encounter occurred in a public or nonpublic setting;
4. whether the officer’s manner would imply that compliance would be compelled; and
5. whether the officers advised the plaintiff that [he] [she] was free to leave.
[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 engage in the act[s] that caused a seizure of the plaintiff’s person. 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 seizure.]
Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.2–9.7, and with an appropriate definition of an unreasonable seizure such as Instructions 9.19–9.22. 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).
"A ‘seizure’ triggering the Fourth Amendment’s protections occurs only when government actors have, ‘by means of physical force or show of authority, . . . in some way restrained the liberty of a citizen.’" Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). This may occur through coercion, physical force, or a show of authority. United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997). A person’s liberty is restrained when, "taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’" Florida v. Bostick, 501 U.S. 429, 437 (1991) (citations omitted). A seizure, however, "does not occur simply because a police officer approaches an individual and asks a few questions." Bostick, 501U.S. at 434.
In determining whether a reasonable person would have felt free to ignore police presence, the Ninth Circuit considers five factors: (1) the number of officers; (2) whether weapons were displayed; (3) whether the encounter occurred in a public or nonpublic setting; (4) whether the officer’s officious or authoritative manner would imply that compliance would be compelled; and (5) whether the officers advised the detainee of his right to terminate the encounter. United States v. Washington, 387 F.3d 1060, 1068 (9th Cir.2004) (citations omitted). "[A] request for identification by the police does not, by itself, constitute a Fourth Amendment seizure." INS v. Delgado, 466 U.S. 210, 216 (1984). See also Gilmore v. Gonzales, 435 F.3d 1125, 1137–38 (9th Cir.2006), cert. denied, 127 S. Ct. 929 (U.S. 2007).
In Morgan v. Woessner, 997 F.2d 1244, 1252 (9th Cir.1993), the Ninth Circuit explained that "stops" under the Fourth Amendment fall into three categories:
First, police may stop a citizen for questioning at any time, so long as that citizen recognizes that he or she is free to leave. Such brief, "consensual" exchanges need not be supported by any suspicion that the citizen is engaged in wrongdoing, and such stops are not considered seizures. Second, the police may "seize" citizens for brief, investigatory stops. This class of stops is not consensual, and such stops must be supported by "reasonable suspicion." Finally, police stops may be full-scale arrests. These stops, of course, are seizures, and must be supported by probable cause.
Morgan, 997 F.2d 1244, 1252 (9th Cir.1993) (citations omitted).
If the court is able to determine as a matter of law that the plaintiff was seized, the committee recommends the court instruct the jury accordingly and omit the portions of this instruction that define a seizure.
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 of a person 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). Thus, this instruction includes an optional definition of the term "intentionally" for use when it would be helpful to the jury.