Section 1983 Litigation/Appendix: Model Instructions

Model Instruction 1: Section 1983—Elements of Claim—Action Under Color of State Law[edit | edit source]

[Plaintiff] must prove both of the following elements by a preponderance of the evidence:

First: [Defendant] acted under color of state law.

Second: While acting under color of state law, [defendant] deprived [plaintiff] of a federal [constitutional right][statutory right].

I will give you more details on action under color of state law, after which I will tell you the elements [plaintiff] must prove to establish the violation of [his/her] federal [constitutional right] [statutory right].

The first element of [plaintiff’s] claim is that [defendant] acted under color of state law. This means that [plaintiff] must show that [defendant] was using power that [he/she] possessed by virtue of state law.

A person can act under color of state law even if the act violates state law. The question is whether the person was clothed with the authority of the state, by which I mean using or misusing the authority of the state.

By “state law,” I mean any statute, ordinance, regulation, custom or usage of any state. And when I use the term “state,” I am including any political subdivisions of the state, such as a county or municipality, and also any state, county or municipal agencies.

Source: Third Circuit Model Jury Instructions Civil 4.3 and 4.4 (2011)

Model Instruction 2: Fourth Amendment Excessive Force Claim[edit | edit source]

In general, a seizure of a person is unreasonable under the Fourth Amendment if a police officer uses excessive force [in making a lawful arrest] [and] [or] [in defending [himself] [herself] [others]. Thus, in order to prove an unreasonable seizure in this case, the plaintiff must prove by a preponderance of the evidence that the officer[s] used excessive force when [insert factual basis of claim].

Under the Fourth Amendment, a police officer may only use such force as is “objectively reasonable” under all 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.

In determining whether the officer[s] used excessive force in this case, consider all of the circumstances known to the officer[s] on the scene, including:

1. The severity of the crime of other circumstances to which the officer[s] [was] [were] responding;
2. Whether the plaintiff posed an immediate threat to the safety of the officer[s] or to others;
3. Whether the plaintiff was actively resisting arrest or attempting to evade arrest by flight;
4. The amount of time and any changing circumstances during which the officer had to determine the type and amount of force that appeared to be necessary;
5. The type and amount of force used;
6. The availability of alternative methods [to take the plaintiff into custody] [to subdue the plaintiff];
7. Other factors particular to the case.

Source: Ninth Circuit Manual of Model Jury Instructions Civil 9.22 (2003)

Model Instruction 3: Eighth Amendment Prisoner Excessive Force Claim[edit | edit source]

To succeed on his claim of excessive use of force, Plaintiff must prove each of the following things by a preponderance of evidence:

1. Defendant used force on Plaintiff;
2. Defendant intentionally used extreme or excessive cruelty toward Plaintiff for the purpose of harming him, and not in a good faith effort to maintain or restore security or discipline;
3. Defendant’s conduct cased harm to Plaintiff;
4. [Defendant acted under color or law].

In deciding whether Plaintiff has proved that Defendant intentionally used extreme or excessive cruelty toward Plaintiff, you many consider such factors as:

• the need to use force;
• the relationship between the need to use force and the amount of force used;
• the extent of Plaintiff’s injury;
• whether Defendant reasonably believed there was a threat to the safety of staff or prisoners;
• any efforts made by Defendant to limit the amount of force used.

[In using force against a prisoner, officers cannot realistically be expected to consider every contingency or minimize every possible risk.]

If you find that Plaintiff has proved each of these things by a preponderance of the evidence, then you should find for Plaintiff, and go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any one of these things by a preponderance of the evidence, then you should find for Defendant, and you will not consider the question of damages.

Source: Seventh Circuit Federal Jury Instructions Civil 7.15 (2010)

Model Instruction 4: Fourth Amendment False Arrest Claim[edit | edit source]

In this case, Plaintiff claims that Defendant falsely arrested him. To succeed on this claim, Plaintiff must prove each of the following things by a preponderance of the evidence:

1. Defendant arrested Plaintiff;
2. Defendant did not have probable cause to arrest Plaintiff; and
3. Defendant was acting under color of law.

If you find that Plaintiff has proved each of these things by a preponderance of the evidence, then you should find for Plaintiff, and go on to consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any one of these things by a preponderance of the evidence, then you should find for Defendant, and you will not consider the question of damages.

Let me explain what “probable cause” means. There is probable cause for an arrest if at the moment the arrest was mad, a prudent person would have believed that Plaintiff [had committed/was committing] a crime. In making this decision, you should consider what Defendant knew and what reasonably trustworthy information Defendant had received.

[It is not necessary that Defendant had probable cause to arrest Plaintiff for [offense in case], so long as Defendant had probably case to arrest him for some criminal offense.] [It is not necessary that Defendant had probable cause to arrest Plaintiff for all of the crimes he was charged with, so long as Defendant had probable cause to arrest him for one of those crimes.]

Probable cause requires more than just a suspicion. But it does not need to be based on evidence that would be sufficient to support a conviction, or even a showing that Defendant’s belief was probably right. [The fact that Plaintiff was later acquitted of [offense in case] does not by itself mean that there was no probable cause at the time of his arrest.]

Source: Seventh Circuit Federal Jury Instructions Civil, 7.05 and 7.06 (2010)

Model Instruction 5: Municipal Liability—General Instruction[edit | edit source]

If you find that [plaintiff] was deprived of [describe federal right], [municipality] is liable for that deprivation if [plaintiff ] proves by a preponderance of the evidence that the deprivation resulted from [municipality’s] official policy or custom—in other words, that [municipality’s] official policy or custom caused the deprivation.

[It is not enough for [plaintiff] to show that [municipality] employed a person who violated [plaintiff’s] rights. [Plaintiff] must show that the violation resulted from [municipality’s] official policy or custom.] “Official policy or custom” includes any of the following [include any of the following theories that are warranted by the evidence]:

• a rule or regulation promulgated, adopted, or ratified by [municipality’s] legislative body;
• a policy statement or decision that is officially made by [municipality’s] [policy-making official];
• a custom that is a widespread, well-settled practice that constitutes a standard operating procedure of [municipality]; or
• [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy]. However, [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy]. However, [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] failure to adopt a needed policy] does not count as “official policy or custom” unless the [municipality] is deliberately indifferent to the fact that a violation of [describe the federal right] is highly predictable consequence of the [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy]. I will explain this further in a moment.

I will now proceed to give you more details on [each of] the ways[s] in which plaintiff] may try to establish that an official policy or custom of [municipality] caused the deprivation.

Source: Third Circuit Model Jury Instructions Civil 4.6.9 (2011)

Model Instruction 6: Municipal Liability—Inadequate Training or Supervision[edit | edit source]

[Plaintiff] claims that [municipality] adopted a policy of [inadequate training] [inadequate supervision], and that this policy caused the violation of [plaintiff’s] [specify right].

In order to hold [municipality] liable for the violation of [plaintiff’s] specify right], you must find that [plaintiff] has proved each of the following three things by a preponderance of the evidence:

First: [[Municipality’s] training program was inadequate to train its employees to carry out their [duties] [municipality] failed adequately to supervise its employees].

Second: [Municipality’s] failure to [adequately train] [adequately supervise] amounted to deliberate indifference to the fact that inaction would obviously result in the violation of [specify right].

Third: [Municipality’s] failure to [adequately train] [adequately supervise] proximately caused the violation of [specify right].

In order to find that [municipality’s] failure to [adequately train] [adequately supervise] amounted to deliberate indifference, you must find that [plaintiff] has proved each of the following three things by a preponderance of the evidence:

First: [Governing body] or [policy-making official] knew that employees would confront a particular situation.

Second: The situation involved [a matter that employees had a history of mishandling].

Third: The wrong choice by an employee in that situation will frequently cause a deprivation of [specify right].

In order to find that [municipality’s] failure to [adequately train] [adequately supervise] proximately caused the violation of [plaintiff’s] federal right, you must find that [plaintiff] has proved by a preponderance of the evidence that [municipality’s] deliberate indifference led directly to the deprivation of [plaintiff’s] [specify right].

Source: Third Circuit Model Jury Instructions Civil 4.6.7 (2011)

Model Instruction 7: Compensatory Damages[edit | edit source]

If you find in favor of Plaintiff, then you must determine the amount of money that will fairly compensate Plaintiff for any injury that you find he sustained [and is reasonably certain to sustain in the future] as a direct result of [insert appropriate language, such as “the failure to provide plaintiff with medical case,” etc.] [These are called “compensatory damages”.]

Plaintiff must prove his damages by a preponderance of the evidence. Your award must be based on evidence and not speculation or guesswork. This does not mean, however, that compensatory damages are restricted to the actual loss of money; they include both the physical and mental aspects of injury, even if they are not easy to measure.

You should consider the following types of compensatory damages, and no others:

[1. The reasonable value of medical care and supplies that Plaintiff reasonably needed and actually received [as well as the present value of the care and supplies that he is reasonably certain to need and receive in the future.]]

[2. The [wages, salary, profits, earning capacity] that Plaintiff has lost [and the present value of the [wages, salary, profits, earning capacity] that Plaintiff is reasonably certain to lose in the future] because of his [inability/ diminished ability] to work.]

[When I say “present value,” I mean the sum of money needed now to which, together with what that sum may reasonably be expected to earn in the future, will equal the amounts of those monetary losses at the times in the future when they will be sustained.]

[3. The physical [and mental/emotional] pain and suffering [and disability/loss or a normal life] that Plaintiff has experienced [and is reasonably certain to experience in the future]. No evidence of the dollar value of physical [or mental/emotional] pain and suffering [or disability/loss of a normal life] has been or needs to be introduced. There is no exact standard for setting the damages to be awarded on account of pain and suffering. You are to determine an amount that will fairly compensate the Plaintiff for the injury he has sustained.]

[If you find in favor of Plaintiff but find that the plaintiff has failed to prove compensatory damages, you must return a verdict for Plaintiff in the amount of one dollar ($1.00).]

Source: Seventh Circuit Federal Jury Instructions Civil 7.23 (footnote omitted) (2010)

Model Instruction 8: Punitive Damages[edit | edit source]

If you find for Plaintiff, you may, but are not required to, assess punitive damages against Defendant. The purposes of punitive damages are to punish a defendant for his conduct and to serve as an example or warning to Defendant and others not to engage in similar conduct in the future.

Plaintiff must prove by a preponderance of the evidence that punitive damages should be assessed against Defendant. You may assess punitive damages only if you find that his conduct was malicious or in reckless disregard of Plaintiff’s rights. Conduct is malicious if it is accompanied by ill will or spite, or is done for the purpose of injuring Plaintiff. Conduct is in reckless disregard of Plaintiff’s rights if, under the circumstances, it reflects complete indifference to Plaintiff’s safety or rights.

If you find that punitive damages are appropriate, then you must use sound reason in setting the amount of those damages. Punitive damages, if any, should be in an amount sufficient to fulfill the purposes that I have described to you, but should not reflect bias, prejudice, or sympathy toward either/any party. In determining the amount of any punitive damages, you should consider the following factors:

• the reprehensibility of Defendant’s conduct;
• the impact of Defendant’s conduct on Plaintiff;
• the relationship between Plaintiff and Defendant;
• the likelihood that Defendant would repeat the conduct if an award of punitive damages is not made;
• Defendant’s financial condition;]
• the relationship of any award of punitive damages to the amount of actual harm the Plaintiff suffered.

Source: Seventh Circuit Federal Jury Instructions Civil 7.24 (2010)