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2.2 Civil Rights 42 USC § 1983 Claims Fourth Amendment Claim Citizen Alleging Unlawful Arrest - Unlawful Search - Excessive Force In this case the Plaintiff claims that the Defendants, while acting "under color" of state law, intentionally deprived the Plaintiff of the Plaintiff's rights under the Constitution of the United States. Specifically, the Plaintiff claims that while the Defendants were acting under color of authority of the State of [as members of the Police Department of the City of ] they intentionally violated the Plaintiff's constitutional right [not to be arrested or seized without probable cause]; [not to be subjected to an unreasonable search of one's home or dwelling]; [and] [to be free from the use of excessive or unreasonable force during an arrest]. Under the Fourth Amendment to the Constitution of the United States, every citizen has the right [not to be seized or arrested without probable cause] [not to be subjected to an unreasonable search of one's home or dwelling] [not to be subjected to excessive or unreasonable force while being arrested by a law enforcement officer, even though the arrest is otherwise made in accordance with the law].The law further provides that a person may sue in this Court for an award of money damages against anyone who, "under color" of any state law or custom, intentionally violates the Plaintiff's rights under the Constitution of the United States.In order to prevail on this claim, the Plaintiff must prove each of the following facts by a preponderance of the evidence:First: That the Defendants intentionally committed acts that violated thePlaintiff's federal constitutional right [not to be arrested or seizedwithout probable cause] [not to be subjected to an unreasonablesearch of one’s home or dwelling] [not to be subjected to excessiveor unreasonable force during an arrest];Second: That in so doing the Defendants acted "under color" of the authority of the State of ; andThird: That the Defendants' acts were the proximate or legal cause ofdamages sustained by the Plaintiff.[In the verdict form that I will explain in a moment, you will be asked to answer a series of questions concerning each of these factual issues. [In this case the parties have stipulated or agreed that the Defendants acted "under color" of state law and you should, therefore, accept that fact as proven.] [A state or local official acts "under color" of the authority of the state not only when the official acts within the limits of lawful authority, but also when the official acts without or beyond the bounds of lawful authority. In order for unlawful acts of an official to be done "under color" of state law, however, the unlawful acts must be done while the official is purporting or pretending to act in the performance of official duty; that is, the unlawful acts must be an abuse or misuse of power which is possessed by the official only because of the position held by the official.] [The first aspect of the Plaintiff's claim is that the Plaintiff was seized or arrested without probable cause. In that regard you are instructed that under the law of the State of , a police officer has the right to arrest a person without a warrant whenever the officer reasonably believes that such person has committed a misdemeanor offense in the presence of the officer. You are further instructed that, under the law of the State of , it is a misdemeanor offense for any person to be intoxicated and endanger the safety of another person or property.] [The second aspect of the Plaintiff's claim is that there was an unreasonable search of the Plaintiff's home. As previously stated, the Constitution protects every citizen against "unreasonable" searches; and, ordinarily, this means that a search warrant must be obtained from a judicial officer before any search of a home may be made. There are, however, certain exceptions to this requirement. One such exception is a search conducted by consent. If a person in lawful possession of a home freely and voluntarily invites or consents to a search, law enforcement officers may reasonably and lawfully conduct the search to the extent of the consent so given. Another exception is recognized in emergency situations in which a law enforcement officer, if the officer has a reasonable and good faith belief that there is a serious threat to the officer's safety or the safety of someone else, may enter and make a safety inspection for the purpose of insuring or protecting the well-being of the officer and others.] [The third aspect of the Plaintiff's claim is that excessive force was used by the Defendants in effecting the Plaintiff's arrest. In that regard, as previously mentioned, every person has the constitutional right not to be subjected to excessive or unreasonable force while being arrested by a law enforcement officer, even though such arrest is otherwise made in accordance with the law. On the other hand, in making a lawful arrest, an officer has the right to use such force as is necessary under the circumstances to complete the arrest. Whether a specific use of force is excessive or unreasonable turns on factors such as the severity of the crime, whether the suspect poses an immediate threat, and whether the suspect is resisting or fleeing. You must decide whether the force used in making an arrest was excessive or unreasonable on the basis of that degree of force that a reasonable and prudent law enforcement officer would have applied in making the arrest under the same circumstances disclosed in this case.] If you should find for the Plaintiff and against the Defendants, you must then decide the issue of the Plaintiff's damages. For damages to be the proximate or legal result of a constitutional deprivation, it must be shown that, except for that constitutional deprivation, such damages would not have occurred.In considering the issue of the Plaintiff's damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just and reasonable compensation for all of the Plaintiff's damages, no more and no less. Compensatory damages are not allowed as a punishment and must not be imposed or increased to penalize the Defendant. Also, compensatory damages must not be based on speculation or guesswork because it is only actual damages that are recoverable.On the other hand, compensatory damages are not restricted to actual loss of time or money; they cover both the mental and physical aspects of injury - - tangible and intangible. Thus, no evidence of the value of such intangible things as physical or emotional pain and mental anguish has been or need be introduced. In that respect it is not value you are trying to determine, but an amount that will fairly compensate the Plaintiff for those claims of damage. There is no exact standard to be applied; any such award should be fair and just in the light of the evidence.You should consider the following elements of damage, to the extent you find them proved by a preponderance of the evidence, and no others:(a) The reasonable value of any property lost or destroyed during,or as a result of, the Defendant’s unconstitutional acts;(b) The reasonable cost of medical care and hospitalization;(c) Physical or emotional pain and mental anguish.[(d) Punitive damages, if any (as explained in the Court’s instructions)][The Plaintiff also claims that the acts of the Defendant were done with malice or reckless indifference to the Plaintiff's federally protected rights so as to entitle the Plaintiff to an award of punitive damages in addition to compensatory damages. If you find for the Plaintiff, and if you further find that the Defendant did act with malice or reckless indifference to the Plaintiff’s federally protected rights, the law would allow you, in your discretion, to assess punitive damages against the Defendant as punishment and as a deterrent to others. If you find that punitive damages should be assessed against the Defendant, you may consider the financial resources of the Defendant in fixing the amount of such damages [and you may assess punitive damages against one or more of the Defendants, and not others, or against more than one Defendant in different amounts].]2.2Civil Rights42 USC § 1983 ClaimsFourth Amendment ClaimCitizen AllegingUnlawful Arrest - Unlawful Search - Excessive ForceSPECIAL INTERROGATORIESTO THE JURYDo you find from a preponderance of the evidence:1. That the Defendant intentionally committed acts that violated the Plaintiff’s federal constitutional right [not to be arrested or seized without probable cause] [not to be subjected to an unreasonable search of one’s dwelling or home] [not to be subjected to excessive or unreasonable force during an arrest]?Answer Yes or No2. That the Defendant’s acts were the proximate or legal cause of damages sustained by the Plaintiff?Answer Yes or No[Note: If you answered No to either Question No. 1 or Question No. 2, you need not answer the remaining questions.]3. That the Plaintiff should be awarded damages to compensate for the reasonable value of any property lost or destroyed during, or as a result of, the Defendant’s unconstitutional acts?Answer Yes or NoIf your answer was Yes, in what amount? $ 4. That the Plaintiff should be awarded damages to compensate for the reasonable cost of medical care and hospitalization?Answer Yes or NoIf your answer was Yes, in what amount? $5. That the Plaintiff should be awarded damages to compensate for physical as well as emotional pain and mental anguish?Answer Yes or NoIf your answer was Yes, in what amount? $6. That the Defendant acted with malice or with reckless indifference to the Plaintiff’s federally protected rights and that punitive damages should be assessed against the Defendant.Answer Yes or NoIf your answer was Yes, in what amount? $SO SAY WE ALL.ForepersonDATED:ANNOTATIONS AND COMMENTSSee the Annotations and Comments following Federal Claims Instruction 2.1, supra. Prior to 1989, most federal courts applied a four-part “substantive due process” test to all excessive force claims lodged against law enforcement and prison officials under § 1983. Under this test, a court would consider the following factors: (1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm. See e.g., Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973); Hamilton v. Chaffin, 506 F.2d 904, 909 (5th Cir. 1975); Williams v. Kelley, 624 F.2d 695, 697 (5th Cir. 1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981); Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir. 1985), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). In 1989 the Supreme Court clarified this issue by holding that all claims of excessive force against law enforcement officials in the course of making an arrest, investigatory stop, or other “seizure” of an individual’s person are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard. Graham v. M.S. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104L.Ed.2d 443 (1989). The Supreme Court re-emphasized that 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.” Id., 490 U.S. at 395 n. 10, 109 S.Ct. at 1871 n. 10 (quoting Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968)). The court left unanswered the question of whether the Fourth Amendment continues to protect individuals against the deliberate use of excessive force beyond the point at which arrest ends and pretrial detention begins. However, the court did state that the Due Process Clause clearly protects a pretrial detainee from the use of excessive force that amounts to punishment, and that the Eighth Amendment is the primary source of protection for post- conviction incidents of excessive force. Id., Bell v. Wolfish, 441 U.S. 520, 535-39, 99 S.Ct. 1861, 1871-74, 60 L.Ed.2d 447 (1979); Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Accordingly, this instruction deals with the case in which a citizen is the complainant. Federal Claims Instruction 2.3.1, infra, deals with the case in which a convicted inmate is the complainant (asserting a claim under the Eighth Amendment); and Federal Claims Instruction 2.4.1, infra, deals with the case in which a pretrial detainee is the complainant (asserting a claim under the Due Process Clause of the Fourteenth Amendment).