9.6 SECTION 1983 CLAIM AGAINST LOCAL GOVERNING BODY DEFENDANTS BASED ON RATIFICATION—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 ratification by a final policymaker, the plaintiff must prove each of the following elements by a preponderance of the evidence:
1. [Name of defendant’s employee] acted under color of law;
2. the act[s] of [name of defendant’s employee] 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 person the plaintiff alleges was a final policymaker of the defendant] acted under color of law;
4. [Name of final policymaker] had final policymaking authority from defendant [name of local governing body] concerning the act[s] of [name of defendant’s employee]; and
5. [Name of final policymaker] ratified [name of defendant’s employee]’s act and the basis for it, that is, [name of alleged final policymaker] knew of and specifically approved of the employee’s act[s].
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 fourth 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 ratification by 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), 9.5 (Section 1983 Claim Against Local Governing Body Defendants Based on Act of Final Policymaker—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 a final policymaker ratifies a subordinate's unconstitutional action and the basis for it. Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir.1999).
To show ratification, a plaintiff must prove that "authorized policymakers approve a subordinate's decision and the basis for it." Id. at 1239 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality). A mere failure to overrule a subordinate’s actions, without more, is insufficient to support a § 1983 ratification claim. Id. See also Lytle v. Carl, 382 F.3d 978, 987–88 (9th Cir.2004) ("[R]atification requires both knowledge of the alleged constitutional violation, and proof that the policymaker specifically approved of the subordinate’s act.") and Ulrich v. City and County of San Francisco, 308 F.3d 968, 985(9th Cir.2002).
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 v. Dallas Indep. Sch. Dist., 491 U.S. 701, 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].").