United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

FREDERICK JACKSON, ASHLEY NICOLE

JACKSON, and BRIANA FREDRANIQUE

ANNETTE JACKSON,, 

Plaintiffs,

 v.

G. LOMBARDI, individually and as an officer of the

City of Pittsburg Police Department (Badge # 275),

C. SMITH, individually and as an officer of the

City of Pittsburg Police Department (Badge # 285),

P. DUMPA, individually and as an officer of the

City of Pittsburg Police Department (Badge # 291),

and WILLIAM BLAKE HATCHER, individually and

as an officer of the City of Pittsburg Police

Department (Badge # 274), and DOES 1–100,

inclusive,

Defendants. /

No. C 09-01016 WHA

PROPOSED CHARGE TO THE JURY

FOLLOWING JULY 21 CHARGING CONFERENCE

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1.

It is your duty to decide this case and to find the facts from all the evidence presented in

the case. To those facts you must apply the law as I now give it to you. Copies of these

instructions will be available in the jury room for you to consult as necessary. You must not be

influenced by any personal likes or dislikes, opinions, prejudices or sympathy. That means that

you must decide the case solely on the evidence before you. In following my instructions, you

must follow all of them and not single out some and ignore others; they are all equally important. 

You must not read into these instructions or into anything the Court may have said or done as

suggesting what verdict you should return — that is a matter entirely up to you.

2.

The evidence from which you are to decide what the facts are consists of:

1. The sworn testimony of witnesses, on both direct and

cross-examination, regardless of who called the witness;

2. The exhibits which have been received into evidence; and

3. The sworn testimony of witnesses in depositions read into

evidence or played on the screen.

3.

In reaching your verdict, you may consider only the testimony and exhibits received into

evidence. Certain things are not evidence and you may not consider them in deciding what the

facts are. I will list them for you:

1. Arguments, statements and objections by lawyers are not evidence. 

The lawyers are not witnesses. What they have said in their opening statements,

closing arguments and at other times is intended to help you interpret the

evidence, but it is not evidence. If the facts as you remember them differ from the

way the lawyers have stated them, your memory of them controls.

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2. A suggestion in a question by counsel or the Court is not evidence

unless it is adopted by the answer. A question by itself is not evidence. 

Consider it only to the extent it is adopted by the answer. 

3. Testimony or exhibits that have been excluded or stricken, or that

you have been instructed to disregard, are not evidence and must not be

considered. Demonstrative charts and diagrams were shown to you but are not

evidence (unless admitted into evidence).

4. Anything you may have seen or heard when the Court was not in

session is not evidence. You are to decide the case solely on the evidence

received at the trial.

4.

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such

as testimony by a witness about what that witness personally saw or heard or did. Circumstantial

evidence is proof of one or more facts from which you could find another fact. By way of

example, if you wake up in the morning and see that the sidewalk is wet, you may find from that

fact that it rained during the night. However, other evidence, such as a turned-on garden hose,

may explain the presence of water on the sidewalk. Therefore, before you decide that a fact has

been proven by circumstantial evidence, you must consider all the evidence in light of reason,

experience and common sense. You should consider both kinds of evidence. It is for you to

decide how much weight to give to any evidence.

5.

In deciding the facts in this case, you may have to decide which testimony to believe and

which testimony not to believe. You may believe everything a witness says or part of it or none

of it. In considering the testimony of any witness, you may take into account:

1. The opportunity and ability of the witness to see or hear or know

the things testified to;

2. The witness’ memory;

3. The witness’ manner while testifying;

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4. The witness’ interest in the outcome of the case and any bias or

prejudice;

5. Whether other evidence contradicted the witness’ testimony;

6. The reasonableness of the witness’ testimony in light of all the

evidence; and

7. Any other factors that bear on believability.

6.

The weight of the evidence as to a fact does not necessarily depend on the number of

witnesses who testify. Nor does it depend on which side called the witnesses or produced

evidence. 

7.

A witness may be discredited or impeached by contradictory evidence or by evidence

that at some other time the witness has said or done something, or has failed to say or to do

something, that is inconsistent with the witness’ present testimony. If you believe any witness

has been impeached and thus discredited, you may give the testimony of that witness such

credibility, if any, you think it deserves.

8.

Discrepancies in a witness’ testimony or between a witness’ testimony and that of other

witnesses do not necessarily mean that such witness should be discredited. Inability to recall is

common. Innocent misrecollection is not uncommon. Two persons witnessing an incident or a

transaction sometimes will see or hear it differently. Whether a discrepancy pertains to an

important matter or only to something trivial should be considered by you. 

However, a witness willfully false in one part of his or her testimony is to be distrusted in

others. You may reject the entire testimony of a witness who willfully has testified falsely on a

material point, unless, from all the evidence, you believe that the probability of truth favors his or

her testimony in other particulars.

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9.

You have heard testimony from witnesses referred to as “expert witnesses.” These are

persons who, because of education or experience, are permitted to state opinions and the reasons

for their opinions. Opinion testimony should be judged just like any other testimony. You may

accept it or reject it, and give it as much weight as you think it deserves, considering the witness’

education and experience, the reasons given for the opinion and all the other evidence in the case. 

If an expert witness was not present at the events in question, his or her opinion is necessarily

based on an assumed set of circumstances. In evaluating the opinion during the trial, you should

take into account the extent to which you do agree or do not agree with the circumstances

assumed by the expert witness.

10.

In these instructions, I will often refer to the burden of proof. The burden of proof in this

case is known as a burden of proof by a preponderance of the evidence. When a party has the

burden of proof on any issue by a preponderance of the evidence, it means you must be persuaded

by the evidence that the issue is more probably true than not true. To put it differently, if you

were to put the evidence favoring Party No. 1 and the evidence favoring Party No. 2 on opposite

sides of a scale, the party with the burden of proof on the issue would have to make the scale tip

somewhat toward its side. If the party fails to meet this burden, then the party with the burden of

proof loses on that issue. Preponderance of the evidence basically means “more likely than not.”

11.

On any claim, if you find that plaintiff carried his or her burden of proof as to each

element of a particular claim, your verdict should be for plaintiff on that claim. If you find that

plaintiff did not carry his burden of proof as to each element, you must find against plaintiff on

that claim. You should decide the case as to each plaintiff and each defendant separately. Unless

otherwise stated, these instructions apply to all parties.

12.

I will now give you the details on the law governing these claims. Plaintiffs Frederick

Jackson and Ashley Jackson allege claims against defendants Officers Smith, Dumpa, Hatcher,

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and Lombardi under the federal civil rights act. Section 1983 of Title 42 of the United States

Code allows individuals to sue for violations of rights protected under the United States

Constitution. This does not include state law violations or anything other than violations of the

United States Constitution. To establish a Section 1983 claim, each plaintiff has the burden to

prove all of the following elements by a preponderance of the evidence against each defendant:

1. The acts of the defendant were intentional,

2. The defendant acted under color of state law, and,

3. The acts of the defendant caused a deprivation of the plaintiff’s rights

under the United States Constitution.

If you find that each of the elements on which a plaintiff has the burden of proof has been

proven as to one of the defendants, your verdict should be for that plaintiff and against that

defendant. If, on the other hand, the plaintiff has failed to prove one or more of these elements,

your verdict should be for the defendant.

13.

Each element will now be explained more fully. First, you must find that the acts of a

defendant were intentional. An act is intentional if it is done knowingly, that is, if it is done

voluntarily and deliberately and not because of accident or negligence. An act may be intentional

even if the act was committed without malice or ill will.

14.

Second, acts are done under color of law when a person acts or purports to act in the

performance of official duties under any state, county or municipal law, ordinance or regulation. 

The parties have stipulated that defendants acted under color of law. So you need not worry over

this element.

15.

Third, each plaintiff must show that a defendant’s conduct “caused” a violation of his or

her rights under the United States Constitution. A “cause” of injury is something that is a

substantial factor in bringing about the injury. A substantial factor in causing harm is a factor that

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a reasonable person would consider to have contributed to the harm. It must be more than a

remote or trivial factor. It does not have to be the only cause of harm.

16.

Now, what is the constitutional right here alleged? First, I will explain the Fourth

Amendment. Plaintiffs Frederick Jackson and Ashley Jackson claim that the individual officer

defendants deprived them of their Fourth Amendment rights.

The Fourth Amendment, which is part of the Constitution, prohibits arrests unless based

on probable cause to believe a crime has or is being committed. It also provides in relevant part,

“The right of the people to be secure in their persons. . . against unreasonable searches and

seizures, shall not be violated.” The Fourth Amendment allows police officers to use physical

force so long as, in light of all the facts and circumstances perceived by them, they reasonably

believe that the force used is needed to protect themselves or members of the public or to prevent

a crime. Force is excessive when no officer could reasonably believe that it was necessary to

protect themselves or members of the public or to prevent a crime. In deciding whether excessive

force was used, you should consider the totality of the circumstances perceived by the officer at

the time. The reasonableness of a particular use of force must be judged from the information

known to the officer at the time and at the scene, rather than with the benefit of hindsight. Police

officers are not necessarily required to use the least intrusive force so long as the force they use is

within reason, based on the facts and circumstances perceived by the officer.

Whether force is reasonably necessary or excessive is measured by the force a reasonable

and prudent law enforcement officer would have used under the circumstances. Some of the

things you may want to consider in determining whether the officers used excessive force in this

case are:

1. The severity of the crime or other circumstances to which

the officers were responding,

2. Whether the plaintiff posed an immediate threat to the safety

of the officers or to others,

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3. Whether the plaintiff was actively resisting or refusing to

obey a lawful police order,

4. How quickly the officer had to decide on the type and

amount of force,

5. The type and amount of force used,

6. The availability of alternative less intrusive methods to

subdue the plaintiff.

The use of a taser gun is a use of force. The application of handcuffs by a police officer

also constitutes a use of force. Placing someone against a police car is use of force. Whether any

of these methods were used in an excessive manner is for you to decide.

17.

If you find that all three officers shot their tasers at the same time, then no officer can be

liable so long as that officer individually had justification for his action, for he can only be liable,

if at all, for his conduct based on facts and circumstances perceived by him. In other words, the

Constitution did not require that the officers coordinate their use of the tasers so long as the

exigencies of the circumstances precluded any such coordination. On the other hand, if you find

that an officer already knew that one or more shots had already successfully hit plaintiff before

firing his own, assuming you were to make such a finding, then you must decide whether that

additional development so diminished the need for yet another shot that an additional tasing was

excessive. In this regard, counsel have stipulated that the three shots were “virtually

simultaneous.” It is for you to decide from all the evidence how much time existed, if any,

between the shots. It is for you to decide from all the evidence whether each officer was justified

in deploying his taser.

18.

In general, an arrest, with or without a warrant, is reasonable if the arresting officer has

probable cause to believe the subject has committed or is committing a crime. In order to prove

that his arrest in this case was unreasonable, plaintiff Frederick Jackson must prove by a

preponderance of the evidence that he was arrested without probable cause. “Probable cause”

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exists when, under all of the circumstances known to the officers at the time, an objectively

reasonable police officer would conclude there is a fair probability that the subject has committed

or was committing a crime. 

19.

It is a crime to willfully resist, delay or obstruct any public officer, or peace officer, in the

discharge or attempt to discharge any duty of his or her office or employment. It is also a crime

to commit a battery against the person of a peace officer engaged in the performance of his duties. 

Battery is any willful and unlawful use of force or violence upon the person of another. It is also

unlawful to attempt, by means of any threat or violence, to deter or prevent a peace officer from

performing any duty imposed upon such officer by law, or knowingly resist, by the use of force or

violence, such officer, in the performance of his or her duty.

A police officer who makes or attempts to make an arrest or detention does not need to

retreat or desist from his or her efforts by reason of the resistance or threatened resistance of the

person being arrested or detained, nor shall such officer be deemed an aggressor or lose his or her

right to self-defense by the use of reasonable force to effect the arrest or detention or to prevent

escape or to overcome resistance. The law entitles an arresting or detaining police officer, who

has reasonable cause to believe that the person to be arrested or detained has committed an

offense, to use reasonable force to effect the arrest, to prevent escape or to overcome resistance.

20.

You have heard that Frederick Jackson was previously convicted of various felonies. 

The officers, however, did not know this at the time of the March 30 incident and thus this could

not be part of any justification for any police conduct. You may, however, consider these felonies

for purposes of evaluating the credibility of Mr. Jackson. It is up to you to decide how much

weight to give this evidence, just as it is for all other evidence.

21.

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There has been evidence about when the officer discovered the two knives and when they

learned that Mr. Jackson kicked out the car window. Facts learned only after the fact cannot be

used to justify police conduct. By the same token, information known to the officers, such as the

911 calls, and the information observed by the officers at the scene leading up to the tasing and

handcuffing were all facts and circumstances on which the officers were entitled to act. This is

true even if it turns out that the 911 information eventually proved to be incorrect in part.

The question for you is whether the facts and circumstances facing each officer justified

that officer’s decision to use force. Information learned after the fact, as stated, can be considered

by you only for determining credibility of witnesses.

22.

Although good practice and procedure may call for police reports and for the dataport

downloads to be reasonably accurate, there is no constitutional requirement that police reports

and dataport downloads be accurate or even require reports in the first place. Therefore, you may

not impose liability on anyone merely for preparing a false report or tolerating inaccurate dataport

downloads, assuming you were to find them false or inaccurate in the first place. If you find such

an item to have been knowingly false, however, you may consider it in evaluating the credibility

of any officer responsible for any false statement.

23.

You have heard some evidence about profanity, so I will instruct you on the role of

profanity under the law. Plaintiffs had a free-speech right to swear at the police but the police

were entitled to consider the profanity directed against them in gauging the risk of immediate

violence. Put differently, the police should not have punished anyone for cursing them but the

police could consider the cursing to evaluate the risk of immediate violence. By the same token,

you have heard some evidence that the police used profanity. The Constitution does not prohibit

profanity by public officials and does not require politeness by police officers. Put different, even

though we all expect police officers to be polite, the Constitution does not require it and there can

be no Section 1983 claim merely for use of profanity. If, however, you find that profanity was

used by the police, you may consider it in evaluating the mental attitude of the officers at the

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time, that is, whether the officers acted out of malice or not. That an officer used profanity would

not by itself mean he or she acted with excessive force but may be considered by you in making

that determination. I am not suggesting to you that profanity was or was not used. That is for

your consideration.

24.

In this case, there is also a First Amendment claim. Plaintiff Frederick Jackson alleges

defendants Lombardi, Smith, Dumpa and/or Hatcher deprived him of his rights under the First

Amendment to the Constitution when he objected to the conduct of defendants.

Under the First Amendment, a citizen has the right to free expression. In order to prove

defendants Lombardi, Smith, Dumpa and/or Hatcher deprived plaintiff Frederick Jackson of his

First Amendment right, plaintiff must prove the following additional elements by a

preponderance of the evidence:

1. Plaintiff Frederick Jackson engaged in speech protected

under the First Amendment, and

2. In retaliation for such protected speech, defendants

Lombardi, Smith, Dumpa and/or Hatcher tased, shoved or arrested

plaintiff.

25.

One of the jurors asked whether Miranda rights were read to plaintiff Frederick Jackson. 

The answer is no, but you should be advised that this has nothing to do with this case. The

Miranda rule applies only in criminal cases to make sure any statement made at the scene by a

criminal defendant is voluntary. That is not an issue in this civil case. Your deliberations should

not be influenced by the fact that Miranda warnings were not given in this case.

26.

Plaintiff Briana Jackson claims that she suffered serious emotional distress as a result of

watching an injury to Frederick Jackson. To establish this claim, plaintiff Briana Jackson must

prove all of the following:

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1. That Officer Lombardi, Smith and/or Dumpa negligently

caused injury to Frederick Jackson,

2. That Briana Jackson was present at the scene of the injury

when it occurred and was aware that Frederick Jackson was being

injured,

3. That Briana Jackson suffered serious emotional distress, and

4. That Officer Lombardi, Smith and/or Dumpa’s conduct was

a substantial factor in causing Briana Jackson’s serious emotional

distress.

Negligence is the failure to use reasonable care to prevent harm to oneself or to others.

A person can be negligent by acting or by failing to act. A person is negligent if he or

she does something that a reasonably careful person would not do in the same situation or fails to

do something that a reasonably careful person would do in the same situation.

Emotional distress includes suffering, anguish, fright, horror, nervousness, grief, anxiety,

worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable

person would be unable to cope with it.

27.

The Court and the parties have narrowed and reduced the number of claims you must

decide. You should not in any way construe this as suggesting in any way what your verdict

should be as to those issues submitted to you for decision. The eliminated claims should not

influence your deliberation or verdict in any way.

28.

It is the duty of the Court to instruct you about the measure of damages. By instructing

you on damages, the Court does not mean to suggest for which party your verdict should be

rendered.

If you find for one or more of the plaintiffs, you must determine his or her damages. 

Plaintiffs have the burden of proving damages by a preponderance of the evidence. Damages

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means the amount of money which will reasonably and fairly compensate plaintiffs for any injury

you find was caused by defendants. You should consider the following:

1. The nature and extent of the injuries,

2. The disability, disfigurement, loss of enjoyment of life

experienced and which with reasonable probability will be

experienced in the future,

3. The mental, physical, emotional pain and suffering

experienced and which with reasonable probability will be

experienced in the future,

4. The reasonable value of necessary medical care, treatment,

and services received to the present time, provided, however, that if

defendants have shown that a lesser amount was accepted as

payment in full by the medical-care providers, then no more than

the lesser amount,

5. The reasonable value of necessary medical care, treatment,

and services which with reasonable probability will be required in

the future, and

6. The reasonable value of wages, earnings, earning capacity,

salaries, employment and employment opportunities lost before plaintiffs

returned to work.

29.

Plaintiffs have the burden of proving damages by a preponderance of the evidence, and it

is for you to determine what damages, if any, have been proved. You are not permitted to include

speculative damages, which means compensation for future loss or harm which, although

possible, is conjectural or not reasonably certain. Your award must be based upon evidence and

not upon speculation, guesswork or conjecture. However, if you determine that a plaintiff has

proven liability, you must compensate him or her for any loss or harm caused by the injury in

question which the evidence shows is reasonably certain.

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30.

Plaintiffs are not entitled to damages for any physical condition that they had before the

incident in question. However, if plaintiffs had physical conditions that were made worse by

defendants’ wrongful conduct, you must award them damages that will reasonably and fairly

compensate them for the incremental effect on that condition.

31.

The law which applies to this case authorizes an award of nominal damages. If you find

for plaintiff Frederick Jackson or Ashley Jackson, but you find that he or she has failed to prove

damages as defined in these instructions, you must award nominal damages. Nominal damages

may not exceed one dollar.

32.

If you find for plaintiff Frederick Jackson or Ashley Jackson, you may, but are not

required to, award them punitive damages. The purposes of punitive damages are to punish a

defendant or defendants and to deter a defendant and others from committing similar acts in the

future. Punitive damages may not be awarded to compensate a plaintiff.

Plaintiffs have the burden of proving that punitive damages should be awarded, and the

amount, by a preponderance of the evidence. You may award punitive damages only if you find

that the conduct of defendant Officer Lombardi, Officer Smith, Officer Dumpa, and/or Officer

Hatcher was malicious, or reckless disregard of a plaintiff’s rights. Conduct is malicious if it is

accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in

reckless disregard of a plaintiff’s rights if, under the circumstances, it reflects complete

indifference to the plaintiff’s safety, rights, or if the defendant acts in the face of a perceived risk

that his, her or its actions will violate the plaintiff’s rights under federal law.

If you find that punitive damages are appropriate, there will be a short supplemental

resumption of the trial to argue the appropriate amount of punitive damages. This would be

immediately after your verdict.

You may impose punitive damages against one or some defendants but not others, or all

of them, or none of them.

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33.

“Malice” means conduct which was intended to cause injury to plaintiff or despicable

conduct which was carried on with a willful and conscious disregard for the rights or safety of

others.

“Despicable conduct” is conduct which is so vile, base, contemptible, miserable,

wretched or loathsome that it would be looked down upon and despised by ordinary decent

people. A person acts with conscious disregard of the rights or safety of others when he or she is

aware of the probable dangerous consequences of his or her conduct and willfully and

deliberately fails to avoid those consequences.

“Oppression” means despicable conduct that subjects a person to cruel and unjust

hardship in conscious disregard of that person’s rights.

“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact

known to the defendant with the intention on the part of the defendant of thereby depriving a

person of property or legal rights or otherwise causing injury.

34.

When you begin your deliberations, you should elect one member of the jury as your

foreperson. That person will preside over the deliberations and speak for you here in court. 

I recommend that you select a foreperson who will be good at leading a fair and balanced

discussion of the evidence and the issues. 

35.

In your deliberations it is usually a mistake to take a straw vote early on. This is due to

the risk of jury members expressing a premature opinion and then, out of pride, digging their

heels. Rather, it is usually better to discuss the evidence, pro and con, on the various issues

before proceeding to take even a straw vote. In this way, all the viewpoints will be on the table

before anyone expresses a vote. These are merely recommendations, however, and it is up to you

to decide on how you wish to deliberate.

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36.

Your verdict as to each claim and as to damages, if any, must be unanimous. Each of you

must decide the case for yourself, but you should do so only after you have considered all of the

evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. 

37.

Do not be afraid to change your opinion if the discussion persuades you that you should. 

Do not come to a decision simply because other jurors think it is right. It is important that you

attempt to reach a unanimous verdict but, of course, only if each of you can do so after having

made your own conscientious decision. Do not change an honest belief about the weight and

effect of the evidence simply to reach a verdict.

38.

Some of you have taken notes during the trial. Whether or not you took notes, you

should rely on your own memory of what was said. Notes are only to assist your memory. You

should not be overly influenced by the notes. 

39.

When you retire to the jury room to deliberate, the Clerk will bring you the following: 

1. All of the exhibits received into evidence;

2. An index of the exhibits;

3. A work copy of these jury instructions for each of you;

4. A work copy of the verdict form for each of you; and

5. An official verdict form. 

You do not have to discuss the questions in the strict sequence indicated in the special

verdict form, but you must, by the end, answer them unanimously as indicated in the form. 

When you recess at the end of a day, please place your work materials in the brown

envelope provided and cover up any easels containing your work notes so that if my staff needs to

go into the jury room, they will not even inadvertently see any of your work in progress. 

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40.

A United States Marshal will be outside the jury-room door during your deliberations. 

If it becomes necessary during your deliberations to communicate with me, you may send a

note through the marshal, signed by your foreperson or by one or more members of the jury. 

No member of the jury should ever attempt to communicate with me except by a signed writing,

and I will respond to the jury concerning the case only in writing or here in open court. If you

send out a question, I will consult with the lawyers before answering it, which may take some

time. You may continue your deliberations while waiting for the answer to any question. 

Remember that you are not to tell anyone — including me — how the jury stands, numerically or

otherwise, until after you have reached a unanimous verdict or have been discharged. Do not

disclose any vote count in any note to the Court. 

41.

You have been required to be here each day from 7:45 a.m. to 1:00 p.m. Now that you

are going to begin your deliberations, however, you are free to modify this schedule within

reason. For example, if you wish to continue deliberating in the afternoons after a reasonable

lunch break, that is fine. The Court does, however, recommend that you continue to start your

deliberations by 8:00 a.m.

It is very important that you let the Clerk know in advance what hours you will be

deliberating so that the lawyers may be present in the courthouse at all times the jury is

deliberating.

42.

You may only deliberate when all of you are together. This means, for instance, that in

the mornings before everyone has arrived, or when someone steps out of the jury room to go to

the restroom, you may not discuss the case. As well, the admonition that you are not to speak to

anyone outside the jury room about this case still applies during your deliberation.

43.

After you have reached a unanimous agreement on a verdict, your foreperson will fill

in, date and sign the verdict form and advise the Court through the marshal that you have reached

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a verdict. The foreperson should hold on to the filled-in verdict form and bring it into the

courtroom when the jury returns the verdict. Thank you for your careful attention. The case is

now in your hands. You may now retire to the jury room and begin your deliberations.

Dated: July 21, 2010. WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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