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9.8 Section 1983 Claim Against Local Governing Body Defendants Based on Policy of Failure to Train—Elements and Burden of Proof

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This chapter is being reviewed in light of comments solicited by the Committee from the public.

9.8 SECTION 1983 CLAIM AGAINST LOCAL GOVERNING BODY DEFENDANTS BASED ON POLICY OF FAILURE TO TRAIN—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 a policy of failure to train its [police officers] [employees], the plaintiff must prove each of the following elements by a preponderance of the evidence:

1. the [act[s]] [failure to act] of [name of defendant’s [police officer[s]] [employee[s]]] deprived the plaintiff of [his] [her] particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;

2. [name of defendant’s [police officer[s]] [employee[s]]] acted under color of state law;

3. the training policies of the defendant [name of local governing body] were not adequate to train its [police officers] [employees] to handle the usual and recurring situations with which they must deal;

4. the defendant [name of local governing body] was deliberately indifferent to the obvious consequences of its failure to train its [police officers] [employees] adequately; and

5. the failure of the defendant [name of local governing body] to provide adequate training caused the deprivation of the plaintiff’s rights by the [name of defendant’s [police officer[s]][employee[s]]]; that is, the defendant’s failure to train is so closely related to the deprivation of the plaintiff’s rights as to be the moving force that caused the ultimate injury.

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 [official] [employee] acted under color of state law.]

"Deliberate indifference" is the conscious choice to disregard the consequences of one’s acts or omissions. The plaintiff may prove deliberate indifference in this case by showing that the defendant [name of local governing body] knew its failure to train adequately made it highly predictable that its [police officer[s]] [employee[s]] would engage in conduct that would deprive persons such as the plaintiff of [his] [her] rights. 

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.

 

Comment

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.

In addition, use this instruction only when Monell liability is based on a local governing body’s policy of inaction, such as a failure to train its police officers. For other bases of Monell liability, see Instructions 9.5 (Elements and Burden of Proof Against Local Governing Body Defendants—§ 1983 Claim Against Local Governing Body Based on Official Policy, Practice, or Custom), 9.6 (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 Ratification—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).

"In limited circumstances, a local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of § 1983." Connick v. Thompson, 563 U.S. 51, 61 (2011). "[A] municipality’s failure to train its employees in a relevant respect must amount to ‘deliberate indifference’ to the rights of the persons with whom the untrained employees come into contact." Id. (citations omitted). The policy of inaction must be a conscious or deliberate choice among various alternatives. Berry v. Baca, 379 F.3d 764, 767 (9th Cir.2004). "[P]olicies of omission regarding the supervision of employees … can be ‘policies’ or ‘customs’ that create municipal liability … only if the omission ‘reflects a deliberate or conscious choice’ to countenance the possibility of a constitutional violation." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1145 (9th Cir.2012) (quoting City of Canton, Ohio v. Harris, 498 U.S. 378, 38990 (1989)).

In order to impose liability based on a policy of deliberate inaction, the "plaintiff must establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate indifference’ to the plaintiff’s constitutional right; and (4) that the policy [was] the ‘moving force behind the constitutional violation." Oviatt, 954 F.2d at 1474 (quoting City of Canton, 489 U.S. at 389–91).

Berry, 379 F.3d at 767.

"Deliberate indifference" requires proof that a municipal actor disregarded a known or obvious consequence of his action. Connick, 131 S. Ct. at 1360 ("[W]hen city policymakers are on actual or constructive notice that a particular omission in their training program cause city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers chose to retain that program.").

[A] violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations. The likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens’ rights could justify a finding that policymakers’ decision not to train the officer reflected "deliberate indifference" to the obvious consequence of the policymakers’ choice--namely, a violation of a specific constitutional or statutory right. The high degree of predictability may also support an inference of causation--that the municipality’s indifference led directly to the very consequence that was so predictable. (citations omitted).

Johnson v. Hawe, 388 F.3d 676, 686 (9th Cir.2004). See also Flores v. City of L.A.,758 F.3d 1154, 1159-60 (9th Cir. 2014)(holding that, absent pattern of sexual assaults by deputies, alleged failure to train officers not to commit sexual assault did not constitute deliberate indifference); Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1159 (9th Cir.2012) (holding that proof of single inadequately-trained employee was insufficient; there must be "widespread" practice); Doughtery v. City of Covina, 654 F.3d 892, 899 (9th Cir.2011) ("Mere negligence in training or supervision … does not give rise to a Monell claim."); Ting v. United States, 927 F.2d 1504, 1512 (9th Cir.1991) (holding that plaintiff’s showing that better or more training could have averted harm insufficient to show deliberate indifference); Merritt v. Cnty. of L.A., 875 F.2d 765, 76970 (9th Cir.1989) (holding that single incident of errant behavior was insufficient to establish policy of inadequate training); Redman v. Cnty. of San Diego, 942 F.2d 1435, 1442 (9th Cir.1991), abrogated in part on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994) (holding that deliberate indifference does not require express intent to harm).