9.5 SECTION 1983 CLAIM AGAINST LOCAL GOVERNING BODY DEFENDANTS BASED ON ACT OF FINAL POLICYMAKER—ELEMENTS AND BURDEN OF PROOF
In order to prevail on [his] [her] § 1983 claim against defendant [name of local governing body] alleging liability based on the act of a final policymaker, the plaintiff must prove each of the following elements by a preponderance of the evidence:
1. [Name of person the plaintiff alleges was a final policymaker of the defendant] acted under color of law;
2. the act[s] of [name of final policymaker]] deprived the plaintiff of [his] [her] particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;
3. [Name of final policymaker] had final policymaking authority from defendant [name of local governing body] concerning these act[s]; and
4. when [name of final policymaker] engaged in these act[s], [he] [she] was acting as a final policymaker for defendant [name of local governing body].
A person acts "under color of law" when the 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] [I instruct you that] the defendant’s [official] [employee] acted under color of law.]
I instruct you that [name of final policymaker] had final policymaking authority from defendant [name of local governing body] concerning the act[s] at issue and, therefore, the third element requires no proof.
If you find the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements [he] [she] is required to prove under Instruction [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant.
Use this instruction only in conjunction with an applicable "particular rights" instruction, such as Instructions 9.9–9.25. Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue. Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act in order to avoid any risk of misstating the law. See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir. 2009).
In addition, use this instruction only when Monell liability is based on the acts of a final policymaker. For other bases of Monell liability, see Instructions 9.4 (Section 1983 Claim Against Local Governing Body Defendants Based on Official Policy, Practice, or Custom—Elements and Burden of Proof), 9.6 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof), and 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Policy of Failure to Train—Elements and Burden of Proof).
As noted in the Introductory Comment to this Chapter, § 1983 liability of a local governing body lies only when "action pursuant to official municipal policy of some nature caused a constitutional tort," and not on the basis of respondeat superior. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978). See also Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997). Such liability may attach when the official or employee who caused a constitutional violation was acting as a "final policymaker." Lytle v. Carl, 382 F.3d 978, 981 (9th Cir.2004). See also Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989). "[A] municipality can be liable for an isolated constitutional violation when the person causing the violation has ‘final policymaking authority.’" Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir.1999) (citations omitted). See also Webb v. Sloan, 330 F.3d 1158, 1163 (9th Cir.2003), cert. denied, 540 U.S. 1141 (2004).
"To hold a local government liable for an official’s conduct, a plaintiff must first establish that the official (1) had final policymaking authority ‘concerning the action alleged to have caused the particular constitutional or statutory violation at issue’ and (2) was the policymaker for the local governing body for the purposes of the particular act." Cortez v. County of Los Angeles, 294 F.3d 1186, 1189 (9th Cir.2002) (quoting Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000) and McMillian v. Monroe County, 520 U.S. 781 (1997)).
The court must determine as a matter of state law whether certain employees or officials have the power to make official or final policy on a particular issue or subject area. Jett, 491 U.S. at 737–38. See also Lytle, 382 F.3d at 983 ("For a person to be a final policymaker, he or she must be in a position of authority such that a final decision by that person may appropriately be attributed to the [defendant public body].").