Solomon v. City of South Lake Tahoe et al

Filing 92

PROPOSED REVISED CLOSING INSTRUCTION No. 6 signed by Judge Garland E. Burrell, Jr on 1/21/2015. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICK WAYNE SOLOMON,

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Plaintiff,

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No. 2:13-cv-00115-GEB-CKD

v.

PROPOSED REVISED CLOSING
INSTRUCTION NO. 6

OFFICER J. HERMINGHAUS,

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Defendant.

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Attached

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is

the

Court‟s

revised

closing

jury

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instruction No. 6, which concerns the law governing Plaintiff‟s

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excessive force claim.
The following language has been stricken from the list

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of

factors

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Defendant used excessive force since Plaintiff has not shown its

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need

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instruction:

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e.g., Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir. 2000)

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(affirming the district court‟s decision not to instruct the jury

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“to

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officers in evaluating whether [the plaintiff] was the victim of

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excessive force”).

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///

in

the

light

consider

jury

of

“The

the

is

to

trial

consider

record

availability

„alternative

of

courses

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in

and

determining

the

remainder

alternative

of

action‟

whether

of

methods.”

available

the
See,

to

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Also, the last paragraph of the same instruction has

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been stricken since the remainder of the instruction “fairly and

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adequately covers the issues presented.” Clem v. Lomeli, 566 F.3d

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1177, 1181 (9th Cir. 2009).

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Dated:

January 21, 2015

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JURY INSTRUCTION NO. 6

Plaintiff

alleges

Defendant

used

excessive

force

against him on January 21, 2011, in violation of the Fourth
Amendment. To prevail on this claim, Plaintiff must prove, by a
preponderance of the evidence, each of the following elements:
First,

that

Defendant

used

excessive

force

during

Plaintiff’s arrest under all of the circumstances; and
Second, that Defendant’s use of excessive force caused
him harm.

In determining whether Defendant used excessive force
in

this

case,

consider

all

of

the

circumstances

known

to

Defendant on the scene, including:
The severity of the crime or other circumstances to
which Defendant was responding;
Whether

Plaintiff

posed

an

immediate

threat

to

the

safety of Defendant or to others;
Whether

Plaintiff

was

actively

resisting

arrest

or

attempting to evade arrest by flight;
The

amount

of

time

and

any

changing

circumstances

during which Defendant had to determine the type and amount of
force that appeared to be necessary; and
The type and amount of force used.
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Under the Fourth Amendment, a police officer may only
use such force as is “objectively reasonable” under all of the
circumstances. In other words, 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.

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