This chapter is being reviewed in light of comments solicited by the Committee from the public.
9.7 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 state law;
2. the [act[s]][failure to act] 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] acted under color of state law;
4. [name of final policymaker] had final policymaking authority from defendant [name of local governing body] concerning the [act[s]] [failure to act] of [name of defendant’s employee]; and
5. [name of final policymaker] ratified [name of defendant’s employee]’s [act[s] [failure to act], that is, [name of alleged final policymaker] knew of and specifically made a deliberate choice to approve [name of defendant’s employee]’s [act[s]] [failure to act] and the basis for it.
A person acts "under color of state 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 [employee] [official] acted under color of state 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 that 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[s] [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 9.9–9.33. 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.
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 9.5 (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 Act of Final Policymaker—Elements and Burden of Proof), and 9.8 (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 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). The concept of ratification often causes confusion in light of the causation requirement; because ratification occurs after an allegedly wrongful act, it cannot have caused that underlying act. Nevertheless, in City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988), a plurality of the Supreme Court recognized the relevance of ratification to what may be chargeable to a municipality in the §1983 context:
When an official’s discretionary decisions are constrained by policies not of that official’s making, those policies, rather than the subordinate’s departures from them, are the act of the municipality. Similarly, when a subordinate’s decision is subject to review by the municipality’s authorized policymakers, they have retained the authority to measure the official’s conduct for conformance with their policies. If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.
Understanding ratification liability is complicated by the frequent reference to ratification in discussions that actually concern the use of a policymaker’s after-the-fact conduct as evidence of a pre-existing custom or policy. While such evidentiary use of after-the-fact conduct may be useful in establishing municipal liability based on a custom or policy, that use does not suffice to show ratification. Establishing ratification requires proof of the affirmance of a prior act.
For a discussion of how courts sometimes merge evidentiary use with true ratification, see George M. Weaver, Ratification as an Exception to the § 1983 Causation Requirement: Plaintiff’s Opportunity or Illusion?, 89 Neb. L. Rev. 357 (2010). By way of example, Weaver points to Larez v. City of L.A., 949 F.2d 630, 645 (9th Cir. 1991) (noting that, because statements by police chief made after subordinates were accused of using excessive force might "shed light on the operation, custom, or policy of his department, or on his ratification or condonation of the injurious acts," those statements, "if admitted upon retrial, may, of course, be used as evidence on the issue of his liability and that of the City").
The Ninth Circuit states that ratification 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) (citing Praprotnik, 485 U.S. at 127). This occurs when the official policymaker involved has adopted and expressly approved of the acts of others who caused the constitutional violation. Trevino v. Gates, 99 F.3d 911, 920 (9th Cir.1996). There must be evidence that the policymaker "made a deliberate choice to endorse" the subordinate employee’s actions. Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir.1992).
Ratification generally requires more than acquiescence. Sheehan v. City & Cnty. of S.F., 741 F.3d 1211, 1231 (9th Cir.2014), rev’d on other grounds, 135 S. Ct. 1765 (2015). A mere failure to overrule a subordinate’s actions, without more, is insufficient to support a § 1983 ratification claim. Christie, 176 F.3d at 1239. See also Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1253-54 (9th Cir.2010) (holding that failure to discipline employees, without more, was insufficient to establish ratification) (overruled on other grounds in Castro v. Cnty. of L.A., ___ F.3d ___, 2016 WL 4268955, at *6 (9th Cir. Aug. 15, 2016) (en banc) ("We therefore overrule Clouthier to the extent that it identified a single deliberate indifference standard for all § 1983 claims and to the extent that it required a plaintiff to prove an individual defendant’s subjective intent to punish in the context of a pretrial detainee’s failure-to-protect claim.")); Lassiter v. City of Bremerton, 556 F.3d 1049, 1055 (9th Cir.2009) ("A single decision by a municipal policymaker ‘may be sufficient to trigger Section 1983 liability under Monell, even though the decision is not intended to govern future situations,’ but the plaintiff must show that the triggering decision was the product of a ‘conscious, affirmative choice’ to ratify the conduct in question."); 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.").
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 (1989). 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].").