CACI No. 441

Factual Elements

A peace officer may use deadly force only when necessary in defense of

human life. [Name of plaintiff] claims that [name of defendant] was

negligent in using deadly force to [arrest/detain/ [,/or] prevent escape of/

[,/or] overcome resistance to] [him/her/ nonbinary pronoun/name of

decedent]. To establish this claim, [name of plaintiff] must prove all of the

following:

1. That [name of defendant] was a peace officer;

2. That [name of defendant] used deadly force on [name of

plaintiff/decedent];

3. That [name of defendant]’s use of deadly force was not necessary

to defend human life;

4. That [name of plaintiff /decedent] was [harmed/killed]; and

5. That [name of defendant]’s use of deadly force was a substantial

factor in causing [name of plaintiff /decedent]’s [harm/death].

[Name of defendant]’s use of deadly force was necessary to defend human

life only if a reasonable officer in the same situation would have believed,

based on the totality of the circumstances known to or perceived by

[name of defendant] at the time, that deadly force was necessary [either]:

[to defend against an imminent threat of death or serious bodily injury

to [name of defendant] [and/or] [another person]][; or/.]]

[to apprehend a fleeing person for a felony, when all of the following

conditions are present:

i. The felony threatened or resulted in death or serious bodily

injury to another;

ii. [Name of defendant] reasonably believed that the person fleeing

would cause death or serious bodily injury to another unless

immediately apprehended; and

iii. [Name of defendant] made reasonable efforts to identify

[himself/herself/nonbinary pronoun] as a peace officer and to

warn that deadly force may be used, unless the officer had

objectively reasonable grounds to believe the person is aware

of those facts.]

[A peace officer must not use deadly force against persons based only on

the danger those persons pose to themselves, if an objectively reasonable

officer would believe the person does not pose an imminent threat of

death or serious bodily injury to the peace officer or to another person.]

[A person being [arrested/detained] has a duty not to use force to resist a

peace officer unless the peace officer is using unreasonable force.]

[“Deadly force” is force that creates a substantial risk of causing death

or serious bodily injury. It is not limited to the discharge of a firearm.]

A threat of death or serious bodily injury is “imminent” if, based on the

totality of the circumstances, a reasonable officer in the same situation

would believe that a person has the present ability, opportunity, and

apparent intent to immediately cause death or serious bodily injury to

the peace officer or to another person. An imminent harm is not merely

a fear of future harm, no matter how great the fear and no matter how

great the likelihood of the harm, but is one that, from appearances, must

be instantly confronted and addressed.

“Totality of the circumstances” means all facts known to or perceived by

the peace officer at the time, including the conduct of [name of defendant]

and [name of plaintiff /decedent] leading up to the use of deadly force. In

determining whether [name of defendant]’s use of deadly force was

necessary in defense of human life, you must consider [name of

defendant]’s tactical conduct and decisions before using deadly force on

[name of plaintiff /decedent] and whether [name of defendant] used other

available resources and techniques as [an] alternative[s] to deadly force,

if it was reasonably safe and feasible to an objectively reasonable officer.

[A peace officer who makes or attempts to make an arrest does not have

to retreat or stop because the person being arrested is resisting or

threatening to resist. Tactical repositioning or other deescalation tactics

are not retreat. A peace officer does not lose the right to self-defense by

using objectively reasonable force to [arrest/detain/ [,/or] prevent escape/

[,/or] overcome resistance].]

New November 2020