Posted: November 24, 2017
Civil Jury Instructions – Civil Rights Set 1 – Comment period expired January 11, 2018
The following proposed Model Utah Civil Jury Instructions addressing civil rights have been published. This is Set 1 of 2. Set 2 will be published at a later date.
CV1301 – Section 1983 Claim–Elements.
CV1302 – Section 1983 Claim–Deprivation of Rights.
CV1303 – Warrantless Arrest.
CV1304 – Probable Cause.
CV1304A – Offenses at Issue.
CV1305 – Unlawful Arrest–Any Crime.
CV1307 – Reasonable Suspicion.
CV1307A – Investigative Stop.
CV1308 – Excessive Force–Introductory Instruction.
CV1309 – Excessive Force–Standard.
CV1310 – Search of Property–Definition.
CV1311 – Search of Property–Constitutional Right.
CV1312 – Lawful Search of Real Property.
CV1313 – Consent.
CV1314 – Probable Cause–Search of Residence.
CV1315 – Exigent Circumstances.
CV1316 – Seizures of Property.
CV1317 – Entry of Residence Pursuant to Arrest Warrant.
CV1318 – Protective Security Sweep.
CV1319 – Validity of Search Warrant Application.
Click here to review Set 1 of the Civil Rights Jury Instructions. Please reference the instruction(s) in your comments.
Regarding CV1301 – Section 1983 Claim–Elements.
The instruction presents a clear, concise, correct summary of federal law as regards 42 USC 1983. However, that law is not, necessarily, applicable to a state-law claim based on the same operative facts. The Utah Supreme Court recently heard the matter of Kuchcinski v. Box Elder County, case no. 20160674, wherein the Court was asked to interpret its 1983-equivalent law (Spackman v. Board of Education of Box Elder County, 2000 UT 87; Jensen v. Cunningham, 2011 UT 17; etc.) such that identification of one or more specific “bad actors” is not required to establish liability.
We recommend delaying implementation of the model instruction until the opinion in Kuchcinski is released. Depending upon the Court’s decision, the instruction may need to be altered, or a supplemental instruction drafted, to address those circumstances when the plaintiff is not required to identify a specific bad actor or actors.
Initially, it should be noted that there are many federal sample jury instructions regarding § 1983 violations. Utah judges and juries in a § 1983 action will be applying federal law with many nuances and immunities. Accordingly, the proposed model civil jury instructions regarding § 1983 may not be necessary. At a minimum, they should track the sample federal jury instructions and not attempt to clarify or simplify that language because the specific language involves terms of art and very specific implications under binding federal law.
CV1301 Section 1983 Claim – – Elements:
In CV1301, the proposed instruction states: “First, the [name of the defendant] was a state employee and was acting, purporting to act, or pretending to act in performance of [his/her] official duties.” This statement of the law, which omits recognized federal case law terms like “state actor” and “acting under color of state law” may cause confusion to both judge and jury. For example, a defendant in a § 1983 action is not always a “state employee.” County employees, municipal employees, and even private actors acting in concert with such employees can be defendants in a § 1983 action and considered “state actors.” Also, a guardian ad litem is a state employee, but federal case law determines they are not to be considered “state actors” under the civil rights statutes. See Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir. 1986) (We hold that a guardian ad litem is not acting under color of state law for purposes of § 1983). Other such exceptions exist. To the point, it is not typically in dispute at trial that a defendant was a “state actor” and was “acting under color of state law.” But, if disputed, it would likely be less confusing to keep the traditional federal terms in the proposed instruction.
Proposed Revision:
“First, the [name of the defendant] was a state actor and was acting under color of state law. Acting under color of state law means that the defendant was, purporting to act, or pretending to act in performance of [his/her] official duties.”
CV1303 Warrantless Arrest:
The term “probable cause” is generally used. In one sentence it says “a probable cause.” Eliminate the “a” so that the term “probable cause” is consistent throughout the instruction.
CV1308 Excessive Force – – Introductory Instruction:
This instruction omits “objectively reasonable” and just uses “reasonable.” The legal standard is “objectively reasonable.”
The second sentence of the instruction should read: “[Name of officer] claims the force [s]he used in [arresting/stopping] [name of plaintiff] was objectively reasonable.”
CV1309 Excessive Force – – Standard:
In the third paragraph, where it uses the term “intentions or motivations” add the term “subjective.” The first sentence of paragraph three will thus read: “You are not to consider [name of officer]’s subjective intentions or motivations, whether good or bad.”
Finally, I would point out that a prior comment to these proposed instructions discusses Utah case law interpreting causes of action brought under the Utah Constitution. Those cases generally have no application to a § 1983 cause of action.
Thank you for your time and efforts.
Meb W. Anderson
Assistant Attorney General, Utah Attorney General’s Office, Civil Rights Section – Litigation Division. I primarily practice in civil rights and § 1983. These comments are my own and are not necessarily those of the Attorney General, or the Office.