9th Cir. Model Jury Instr. (Civil) 9.33

Detainee’s Claim of Excessive Force

As previously explained, the plaintiff [name] has the burden to prove that the acts or failures to act of the defendant [name] deprived the plaintiff [name] of particular rights under the United States Constitution. In this case, the plaintiff [name] alleges the defendant [name] deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the Fourteenth Amendment to the Constitution when the defendant [name] used excessive force against the plaintiff [name].

Under the Fourteenth Amendment, an officer may use only such force as is “objectively reasonable” under all of the circumstances. 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. Although the facts known to the officer are relevant to your inquiry, an officer’s subjective intent or motive is not relevant to your inquiry.

To prove the defendant [name] deprived the plaintiff [name] of this Fourteenth Amendment right, the plaintiff [name] must prove the following elements by a preponderance of the evidence:

First, the defendant [name] purposely or knowingly used force against the plaintiff [name];

Second, the force used against the plaintiff [name] was objectively unreasonable; and

Third, the acts of the defendant [name] caused harm to the plaintiff [name].

In determining the objective reasonableness or unreasonableness of the force used, consider the following factors:

The relationship between the need for the use of force and the amount of force used;

The extent of the plaintiff [name]’s injury;

Any effort made by the defendant [name] to temper or to limit the amount of force;

The severity of the security problem at issue;

The threat reasonably perceived by the defendant [name]; and

Whether the plaintiff [name] was actively resisting.