Hernandez v. Contra Costa County

• Court: District Court, N.D. California
• Decided: March 3, 2022
• Docket: 3:20-cv-01183
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICARDO HERNANDEZ, Case No. 20-cv-01183-AGT g Plaintiff, COURT’S PROPOSED FINAL JURY 9 v. INSTRUCTIONS — ANNOTATED 10 BRANDON HODGES, 11 Defendant.

E 13 The Court’s proposed final jury instructions are set forth below. Except as otherwise 14 || indicated, the parties have stipulated to the instructions (see Dkt. 151). The Court intends to give 3 15 || these instructions subject to modifications based on evidence and developments at trial. The 16 || parties should be prepared to discuss any objections at the final pretrial conference on March 4, 5 17 2022.

18 IT IS SO ORDERED. 19 Dated: March 3, 2022 20 21 AL “TSE 22 United States Magistrate Judge 23 24 25 26 27 28

1 FINAL JURY INSTRUCTIONS 2 (GIVEN AT THE END OF THE CASE) 3 4 5 6 INSTRUCTION NO. _____ [1.4] 7 DUTY OF JURY TO FIND FACTS AND FOLLOW LAW 8 Members of the Jury: Now that you have heard all of the evidence [and the arguments of 9 the attorneys], it is my duty to instruct you on the law that applies to this case. A copy of these 10 instructions will be available in the jury room for you to consult during your deliberations. 11 It is your duty to weigh and to evaluate all the evidence received in the case and, in that 12 process, to decide the facts. It is also your duty to apply the law as I give it to you to the facts as 13 you find them, whether you agree with the law or not. You must decide the case solely on the 14 evidence and the law. Do not allow personal likes or dislikes, sympathy, prejudice, bias, or public 15 opinion to influence you. You should also not be influenced by any person’s race, color, religion, 16 national ancestry, sexual orientation, gender identity, profession, occupation, economic 17 circumstances, or position in life or in the community. You will recall that you took an oath 18 promising to do so at the beginning of the case. 19 You must follow all these instructions and not single out some and ignore others; they are all 20 important. Please do not read into these instructions or into anything I may have said or done any 21 suggestion as to what verdict you should return – that is a matter entirely up to you. 22 23 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.4 (modified by the Court). The 24 parties should be prepared to discuss when this instruction should be read (i.e., before or after 25 closing arguments).

26 27 1 INSTRUCTION NO. ____ [3.1] 2 DUTY TO DELIBERATE 3 When you begin your deliberations, elect one member of the jury as your foreperson who 4 will preside over the deliberations and speak for you here in court. 5 You will then discuss the case with your fellow jurors to reach agreement if you can do so. 6 Your verdict must be unanimous. 7 Each of you must decide the case for yourself, but you should do so only after you have 8 considered all of the evidence, discussed it fully with the other jurors, and listened to the views of 9 your fellow jurors. Do not be afraid to change your opinion if the discussion persuades you that 10 you should. But do not come to a decision simply because other jurors think it is right. 11 It is important that you attempt to reach a unanimous verdict but, of course, only if each of 12 you can do so after having made your own conscientious decision. Do not change an honest belief 13 about the weight and effect of the evidence simply to reach a verdict. 14 Perform these duties fairly and impartially. Do not allow personal likes or dislikes, 15 sympathy, prejudice, fear, public opinion or biases to influence you. You should also not be 16 influenced by any person’s race, color, religion, national ancestry, gender identity, sexual 17 orientation, profession, occupation, economic circumstances, or position in life or in the 18 community. 19 It is your duty as jurors to consult with one another and to deliberate with one another with 20 a view towards reaching an agreement if you can do so. During your deliberations, you should not 21 hesitate to reexamine your own views and change your opinion if you become persuaded that it is 22 wrong. 23 24 Court Notes: 9th Cir. Model Civil Jury Instruction No. 3.1 (modified by the Court).

25 26 27 1 INSTRUCTION NO. ____ [3.2] 2 CONSIDERATION OF THE EVIDENCE – CONDUCT OF THE JURY 3 Because you must base your verdict only on the evidence received in the case and on these 4 instructions, I remind you that you must not be exposed to any other information about the case or 5 to the issues it involves. Except for discussing the case with your fellow jurors during 6 deliberations: 7 Do not communicate with anyone in any way and do not let anyone else 8 communicate with you in any way about the merits of the case or anything to do with 9 it. This includes discussing the case in person, in writing, by phone or electronic 10 means, via email, text messaging, or any Internet social media site, blog, website, or 11 other application. This applies to communicating with your family members, your 12 employer, your friends, the media or press, and the people involved in the trial. If 13 you are asked or approached in any way about your jury service or anything about 14 this case, you must respond that you have been ordered not to discuss the matter and 15 to report the contact to the Court. 16 Do not read, watch, or listen to any news or media accounts or commentary about 17 the case or anything to do with it; do not do any research, such as consulting 18 dictionaries, searching the Internet, or using other reference materials; and do not 19 make any investigation or in any other way try to learn about the case on your own. 20 Do not do any research about this case, the law, or the people involved—including 21 the parties, the witnesses, or the lawyers—until you have been excused as jurors. If 22 you happen to read or hear anything touching on this case in the media, turn away 23 and report it to me as soon as possible. 24 These rules protect each party’s right to have this case decided only on evidence that has 25 been presented here in court. Witnesses here in court take an oath to tell the truth, and the 26 accuracy of their testimony is tested through the trial process. If you do any research or 27 investigation outside the courtroom, or gain any information through improper communications, 1 not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial 2 jury, and if you decide the case based on information not presented in court, you will have denied 3 the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very 4 important that you follow these rules. 5 A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a 6 mistrial could result that would require the entire trial process to start over. If any juror is exposed 7 to any outside information, please notify the court immediately. 8 9 Court Notes: 9th Cir. Model Civil Jury Instruction No. 3.2 (modified by the Court).

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTION NO. ____ [3.3] 2 COMMUNICATION WITH THE COURT 3 If it becomes necessary during your deliberations to communicate with me, you may send 4 a note through the Courtroom Deputy, Stephen Ybarra, signed by your foreperson. No member of 5 the jury should ever attempt to communicate with me except by a signed writing. I will not 6 communicate with any member of the jury on anything concerning the case except in writing or 7 here in open court. If you send out a question, I will consult with the lawyers before answering it, 8 which may take some time. You may continue your deliberations while waiting for the answer to 9 any question. Remember that you are not to tell anyone – including me or Mr. Ybarra – how the 10 jury stands, whether in terms of vote count or otherwise, until after you have reached a unanimous 11 verdict or have been discharged. 12 13 Court Notes: 9th Cir. Model Civil Jury Instruction No. 3.3 (modified by the Court).

14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTION NO. ____ [3.5] 2 RETURN OF VERDICT 3 A verdict form has been prepared for you. After you have reached unanimous agreement 4 on a verdict, your foreperson should complete the verdict form according to your deliberations, 5 sign and date it, and advise the Courtroom Deputy, Stephen Ybarra, that you are ready to return to 6 the courtroom. 7 8 Court Notes: 9th Cir. Model Civil Jury Instruction No. 3.5.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTION NO. ____ [5.1] 2 DAMAGES – PROOF 3 It is the duty of the Court to instruct you about the measure of damages. By instructing 4 you on damages, the Court does not mean to suggest for which party your verdict should be 5 rendered. 6 If you find for plaintiff Ricardo Hernandez on any of his claims, you must determine his 7 damages. The plaintiff has the burden of proving damages by a preponderance of the evidence. 8 Damages means the amount of money that will reasonably and fairly compensate the plaintiff for 9 any injury you find was caused by defendant Officer Brandon Hodges. You should consider the 10 following: 11  The nature and extent of the injuries; and 12  The physical and emotional pain and suffering experienced. 13 It is for you to determine what damages, if any, have been proved. 14 The arguments of the attorneys are not evidence of damages. Your award must be based 15 upon evidence and not upon speculation, guesswork or conjecture. 16 17 Court Notes: 9th Cir. Model Civil Jury Instruction Nos. 5.1 & 5.2. The parties have 18 stipulated to this instruction (see Dkt. 151 at 6). The Court has added the sentence in redline 19 above, which the parties included in a separate instruction, “Stipulated Special Instruction No. 5 20 – Arguments Of Counsel Not Evidence Of Damages” (see id. at 18:1).

21 22 23 24 25 26 27 1 INSTRUCTION NO. ____ [5.3] 2 DAMAGES – MITIGATION 3 The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means 4 to avoid or reduce damages. 5 The defendant has the burden of proving by a preponderance of the evidence: 6 1. that the plaintiff failed to use reasonable efforts to mitigate damages; and 7 2. the amount by which damages would have been mitigated. 8 9 Court Notes: 9th Cir. Model Civil Jury Instruction No. 5.3.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTION NO. ____ [5.5] 2 PUNITIVE DAMAGES 3 If you find for the plaintiff, you may, but are not required to, award punitive damages. The 4 purposes of punitive damages are to punish a defendant and to deter similar acts in the future. 5 Punitive damages may not be awarded to compensate a plaintiff. 6 The plaintiff has the burden of proving by a preponderance of the evidence that punitive 7 damages should be awarded and, if so, the amount of any such damages. 8 You may award punitive damages only if you find that the defendant’s conduct that 9 harmed the plaintiff was malicious, oppressive or in reckless disregard of the plaintiff’s rights. 10 Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring 11 the plaintiff. Conduct is in reckless disregard of the plaintiff’s rights if, under the circumstances, it 12 reflects complete indifference to the plaintiff’s safety or rights, or if the defendant acts in the face 13 of a perceived risk that its actions will violate the plaintiff’s rights under federal law. An act or 14 omission is oppressive if the defendant injures or damages or otherwise violates the rights of the 15 plaintiff with unnecessary harshness or severity, such as by misusing or abusing authority or 16 power or by taking advantage of some weakness or disability or misfortune of the plaintiff. 17 If you find that punitive damages are appropriate, you must use reason in setting the 18 amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but 19 should not reflect bias, prejudice, or sympathy toward any party. In considering the amount of any 20 punitive damages, consider the degree of reprehensibility of the defendant’s conduct, including 21 whether the conduct that harmed the plaintiff was particularly reprehensible because it also caused 22 actual harm or posed a substantial risk of harm to people who are not parties to this case. You 23 may not, however, set the amount of any punitive damages in order to punish the defendant for 24 harm to anyone other than the plaintiff in this case. 25 In addition, you may consider the relationship of any award of punitive damages to any 26 actual harm inflicted on the plaintiff. In addition, you may consider Defendant Officer Hodges’s 27 financial condition, and what amount is necessary to punish him and discourage future wrongful 1 Court Notes: 9th Cir. Model Civil Jury Instruction No. 5.5. The Court has modified the 2 parties’ stipulated proposed instruction (see Dkt. 151 at 8) to strike the final sentence, which is 3 based on Judicial Council of California Civil Jury Instruction (“CACI”) No. 3940. The Ninth 4 Circuit Model Jury Instructions do not include the defendant’s financial condition and/or ability 5 to pay as relevant factors in determining punitive damages; there are no state law claims at issue 6 in this case; and the parties have cited no federal authority to support the application of 7 California law on punitive damages in a federal § 1983 action involving no state claims.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTION NO. ___ [9.1] 2 SECTION 1983 CLAIM – INTRODUCTORY INSTRUCTION 3 Plaintiff Ricardo Hernandez brings his claims under the federal statute, 42 U.S.C. § 1983, 4 which provides that any person or persons who, under color of state law, deprives another of any 5 rights, privileges, or immunities secured by the Constitution or laws of the United States shall be 6 liable to the injured party. 7 8 Court Notes: 9th Cir. Model Civil Jury Instruction No. 9.1.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTION NO. ___ [9.3] 2 SECTION 1983 CLAIM – ELEMENTS AND BURDEN OF PROOF 3 In order to prevail on his § 1983 claims against defendant Officer Hodges, the plaintiff 4 must prove each of the following elements by a preponderance of the evidence: 5 1. the defendant acted under color of state law; and 6 2. the acts or failure to act of the defendant deprived the plaintiff of his particular 7 rights under the United States Constitution as explained in later instructions. 8 A person acts “under color of state law” when the person acts or purports to act in the 9 performance of official duties under any state, county, or municipal law, ordinance or regulation. 10 The parties have stipulated that the defendant Officer Hodges acted under color of state law. 11 If you find the plaintiff has proved each of these elements, and if you find that the plaintiff 12 has proved all the elements he is required to prove under Instruction[s] [specify the instruction[s] 13 that deal with the particular right[s]], your verdict should be for the plaintiff. If, on the other 14 hand, you find that the plaintiff has failed to prove any one or more of these elements, your verdict 15 should be for the defendant. 16 17 Court Notes: 9th Cir. Model Civil Jury Instruction No. 9.3. The Court’s minor 18 modifications to this stipulated instruction are in redline above. This instruction may require 19 further modification depending on whether plaintiff’s integral participation claim is submitted to 20 the jury. To that end, the Ninth Circuit’s comments to Instruction No. 9.3 provide as follows:

21 In Reynaga Hernandez v. Skinner, 969 F.3d 930, 941-42 (9th Cir. 2020), the Ninth Circuit discussed, for the first time, the minimum 22 level of involvement needed for § 1983 liability under the integral- participant doctrine. When liability is alleged against a defendant on 23 this basis, the model instruction stated above will need to be modified. 24 The parties’ proposed instructions do not reference Hernandez v. Skinner. 25 26 27 1 INSTRUCTION NO. ____ [9.2] 2 SECTION 1983 CLAIM – CAUSATION 3 In a § 1983 action, the plaintiff must demonstrate, by a preponderance of the evidence, that 4 the defendant’s conduct was the actionable cause of the claimed injury. The inquiry into causation 5 must be individualized and focus on the duties and responsibilities of the individual defendant 6 whose acts or omissions are alleged to have caused a constitutional deprivation. This means that 7 you must consider the individual actions of Defendant Officer Hodges to determine if the officer 8 actually caused plaintiff Ricardo Hernandez’s claimed injuries. 9 A person “subjects” another to the deprivation of a constitutional right, within the meaning 10 of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to 11 perform an act which he is legally required to do that causes the deprivation of which complaint is 12 made. Thus in order to prove defendant Officer Hodges caused plaintiff Ricardo Hernandez’s 13 claimed injuries, the plaintiff must prove that Officer Hodges’ individual act or failure to act were 14 so closely related to the deprivation of the plaintiff’s rights as to be the moving force that caused 15 plaintiff’s ultimate injury. 16 17 Court Notes: 9th Cir. Model Civil Jury Instruction No. 9.2, comment. The parties 18 stipulated to the above proposed instruction on causation (see Dkt. 151 at 10). At this juncture, it 19 is not clear to the Court that a standalone instruction on causation is necessary; the Court will 20 revisit this issue once evidence has been presented. 21 The Court also has concerns with the parties’ stipulated proposed instruction as currently 22 written. The parties’ proposed causation language—that “the plaintiff must prove that Officer 23 Hodges’ individual act or failure to act were so closely related to the deprivation of the plaintiff’s 24 rights as to be the moving force that caused plaintiff’s ultimate injury”—is pulled from the Ninth 25 Circuit’s model instructions dealing with § 1983 Monell claims and § 1983 claims against 26 supervisory defendants, neither of which are at issue in this case. The parties should be prepared 27 to provide the Court with specific authority that supports their proposed causation language in a 1 prepared to discuss what impact, if any, the Ninth Circuit’s decision in Hernandez v. Skinner, 969 2 F.3d 930 (9th Cir. 2020) has on the causation standard in this case.

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTION NO. _____ [9.25] 2 PARTICULAR RIGHTS –FOURTH AMENDMENT – UNREASONABLE SEIZURE OF 3 PERSON – EXCESSIVE FORCE – INTEGRAL PARTICIPATION 4 Plaintiff Ricardo Hernandez has alleged that defendant Officer Hodges was an integral 5 participant in the the non-party Contra Costa County Sheriff’s Deputies’ used of excessive force 6 against him in violation of his Fourth Amendment rights, and that defendant Officer Hodges was 7 an “integral participant” in that use of excessive force. In order to find in favor of the plaintiff on 8 his integral participant claim against defendant Officer Hodges, you must first find that one or 9 more of the Contra Costa County Sheriff Deputies used excessive force against the plaintiffhim. 10 In general, a seizure of a person is unreasonable under the Fourth Amendment if a police 11 officer uses excessive force in making a lawful detention or arrest, or in defending himself or in 12 attempting to stop a fleeing or escaping suspect. Therefore, to establish an unreasonable seizure in 13 this case, the plaintiff must prove by a preponderance of the evidence that one or more of the 14 Contra Costa County Sheriff’s Deputiesy used excessive force when they tried to detain or arrest 15 the plaintiff. 16 Under the Fourth Amendment, a police officer may only use such force as is “objectively 17 reasonable” under all of the circumstances. You must judge the reasonableness of a particular use 18 of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of 19 hindsight. Although the facts known to the officer are relevant to your inquiry, an officer’s 20 subjective intent or motive is not relevant to your inquiry. 21 In determining whether any of the Contra Costa County Sheriff Deputiesofficer(s) used 22 excessive force in this case, consider all of the circumstances known to the officer on the scene, 23 including: 24 1. the nature of the crime or other circumstances known to the officer at the time force 25 was applied; 26 2. whether the plaintiff posed an immediate threat to the safety of the officer(s) or to 27 others; 1 detention/arrest by flight; 2 4. the amount of time the officer had to determine the type and amount of force that 3 reasonably appeared necessary, and any changing circumstances during that period; 4 5. the type and amount of force used; 5 6. the availability of alternative methods to take the plaintiff into custody or to subdue 6 the plaintiff; 7 7. the number of lives at risk (motorists, pedestrians, police officers) and the parties’ 8 relative culpability, i.e., which party created the dangerous situation, and which 9 party is more innocent; 10 8. whether it was practical for the officer[s] to give warning of the imminent use of 11 force, and whether such warning was given; 12 9. whether the officers were responding to a domestic violence disturbance; 13 10.9. whether a reasonable officer would have or should have accurately perceived a 14 mistaken fact; and 15 11.10. whether there was probable cause for a reasonable officer to believe that the 16 suspect had committed a crime involving the infliction or threatened infliction of 17 serious physical harm. 18 “Probable cause” exists when, under all of the circumstances known to the officers at the 19 time, an objectively reasonable police officer would conclude there is a fair probability that the 20 plaintiff has committed or was committing a crime. In this case, the parties agree have stipulated 21 that there was probable cause to detain/arrest the plaintiff. 22 If you find that one or more of the Contra Costa County Sheriff Deputies used excessive 23 force against the plaintiff, you must then determine whether defendant Officer Hodges was an 24 “integral participant” in that unlawful use of force. Integral participation does not require that 25 each officer’s actions themselves rise to the level of a constitutional violation. But it does require 26 some fundamental involvement in the conduct that caused the violation. An officer whose actions 27 were instrumental in effectuating a constitutional violation may be held liable under § 1983 as an 1 The plaintiff’s claim in this case is that defendant RPD Officer Hodges, was an integral 2 participant in the Contra Costa County Sheriff Deputies’ use of excessive force. Integral 3 participation requires an officer to affirmatively participate in the unconstitutional conduct. 4 Officer Hodges is liable for the claimed use of excessive force by the County Deputies if the 5 plaintiff has proven all of the following, by a preponderance of the evidence: 6 1. One or more Contra Costa County Sheriff Deputy or Deputies used excessive force 7 against the plaintiff; 8 2. RPD defendant Officer Hodges was performing some function necessary to the 9 completion of the excessive force; 10 3. RPD defendant Officer Hodges performed that function knowing the excessive 11 force would occur; and 12 4. The plaintiff suffered damages due to RPD defendant Officer Hodges’ functions. 13 If you do not find the plaintiff has proved each of these elements by a preponderance of 14 evidence, you must find in favor of defendant Officer Hodges, even if you believe the Contra 15 Costa County Sheriff Deputies used excessive force against the plaintiff. 16 17 Court Notes: 9th Cir. Model Civil Jury Instruction No. 9.25. The parties stipulated to this 18 instruction (see Dkt. 151 at 12–14). The Court has modified the stipulated instruction, including 19 by striking factor (9) above as it is not relevant to the instant case and by adding a paragraph to 20 clarify the minimum level of involvement needed for § 1983 liability under the integral-participant 21 doctrine, as discussed in Hernandez v. Skinner, 969 F.3d 930, 941-42 (9th Cir. 2020) and 22 Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007). The parties should also 23 be prepared to discuss (and provide supporting authority for) the elements highlighted in yellow 24 above. 25 26 27 1 INSTRUCTION NO. ____ 2 PARTICULAR RIGHTS –FOURTH AMENDMENT – UNREASONABLE SEIZURE OF 3 PERSON – EXCESSIVE FORCE – FAILURE TO INTERVENE 4 Plaintiff also asserts that defendant Officer Hodges is liable for the Contra Costa County 5 Sheriff Deputies’ excessive force because Officer Hodges failed to intervene in the Contra Costa 6 County Sheriff Deputies’ use of excessive force. Police officers have a duty to intervene when 7 their fellow officers violate the constitutional rights of a citizen. But an officer can be held liable 8 for failing to intervene only if they had a realistic opportunity to intervene. 9 To prove his failure to intervene claim, the plaintiff must prove all of the following by a 10 preponderance of the evidence: 11 1. One or more Contra Costa County Sheriff Deputies used excessive force 12 when they arrested the plaintiff. 13 2. RPD Defendant Officer Hodges had a duty to intervene based upon the 14 circumstances he faced. 15 3. RPD Defendant Officer Hodges was aware of a need to intervene due to the 16 Contra Costa County Sheriff Deputies’ actions in their arrest of the plaintiff. 17 4. RPD Defendant Officer Hodges had a reasonable and realistic opportunity 18 to intervene with regard to the Contra Costa County Sheriff Deputies’ force 19 during their arrest of the plaintiff. 20 5. RPD Officer Hodges failed to intervene. 21 If you do not find the plaintiff has proved each of these elements by a preponderance of 22 evidence, you must find in favor of RPD defendant Officer Hodges, even if you believe the Contra 23 Costa County Sheriff Deputies used excessive force against the plaintiff. 24 25 Court Notes: Third Circuit Manual of Model Civil Jury Instructions No. 4.6.2. The parties 26 stipulated to this instruction, which is based in part on the Third Circuit’s Model Civil Jury 27 Instruction No. 4.6.2 (see Dkt. 151 at 15). Importantly, however, the parties’ proposed instruction 1 have a duty to intervene. The Court has added the Ninth Circuit’s version of such language, as 2 discussed in Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000), in redline above. The 3 parties should be prepared to discuss the Court’s modifications as well as the specific elements 4 highlighted in yellow above. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTION NO. ____ 2 RIGHT TO USE FORCE TO EFFECT DETENTION/ARREST 3 The parties have agreed that the law enforcement officers involved with the plaintiff that 4 night had reasonable cause/suspicion to detain the plaintiff and/or probable cause to arrest the 5 plaintiff. Therefore, the issue about the lawfulness of the plaintiff’s detention and/or arrest is not 6 for your determination in this trial. 7 Any peace officer may use reasonable force to effect the detention/arrest, to prevent 8 escape, or to overcome resistance. A peace officer who makes or attempts to make a 9 detention/arrest need not retreat or desist from his efforts by reason of the resistance or threatened 10 resistance of the person being detained/arrested, nor shall such officer be deemed an aggressor or 11 lose his right to self-defense by the use of reasonable force to effect the detention/arrest or to 12 prevent escape or to overcome resistance. 13 If a person has knowledge, or by the exercise of reasonable care, should have knowledge, 14 that he is being detained/arrested by a peace officer, it is the duty of such person to refrain from 15 using force or any weapon to resist such detention/arrest. 16 17 Court Notes: Cal. Penal Code §§ 835, 835a, 834 (combined). The parties stipulated to this 18 instruction (see Dkt. 151 at 16). It is not clear to the Court why the final paragraph (stricken 19 above) should be included. The parties should be prepared to discuss.

20 21 22 23 24 25 26 27 1 INSTRUCTION NO. ___ [1.11] 2 EVIDENCE FOR A LIMITED PURPOSE 3 If I instructed you that an item of evidence has been admitted for a limited purpose, you 4 must consider it only for that limited purpose and for no other. 5 6 Court Notes: 9th Cir. Model Civil Jury Instruction No. 1.11. This instruction may not be 7 needed; the Court will assess at the close of evidence.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTION NO. ____ 2 ARGUMENTS OF COUNSEL NOT EVIDENCE OF DAMAGES 3 The arguments of the attorneys are not evidence of damages. Your award must be based 4 on your reasoned judgment applied to the testimony of the witnesses and the other evidence that 5 has been admitted during trial. 6 7 Court Notes: CACI 3925. The parties stipulated to this instruction (see Dkt. 151 at 18). 8 Rather than give this instruction as a standalone instruction, the has combined it with the 9 instruction on “Damages – Proof” (No. 5.1 supra).

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 INSTRUCTION NO. ____ [2.9] 2 IMPEACHMENT EVIDENCE – WITNESSES 3 The evidence that a witness lied under oath or gave different testimony on a prior occasion 4 may be considered, along with all other evidence, in deciding whether or not to believe the witness 5 and how much weight to give to the testimony of the witness and for no other purpose. 6 7 Court Notes: 9th Cir. Model Civil Jury Instruction No. 2.9. Neither party proposed this 8 instruction, and it is not clear whether this instruction will be necessary. The Court will decide 9 after hearing the evidence. 10

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27