Introductory Comment

This chapter focuses on 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.  For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 

            This chapter is organized to provide separate “elements” instructions for 42 U.S.C. § 1983 claims against individuals (Instructions 9.3–9.4) and against local governing bodies (Instructions 9.5–9.8) because there are different legal standards establishing liability against these two types of defendants.   Instructions 9.9–9.33 provide instructions to establish the deprivation of particular constitutional rights.  An elements instruction should be used only in conjunction with a “particular rights” instruction appropriate to the facts of the case at hand.

            The chart below identifies the instructions for violations of particular federal rights to be used in conjunction with an elements instruction. “[W]here a particular amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.’”  Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion); Kirkpatrick v. Cnty of Washoe, 843 F.3d 784, 788 n.2 (9th Cir. 2016).  When necessary, these instructions include right-specific mental states because § 1983 “itself ‘contains no state-of-mind requirement independent of thatnecessary to state a violation’ of the underlying federal right.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 405 (1997) (quoting  Daniels v. Williams, 474 U.S. 327, 328 (1986)).

Person Subject to § 1983 Liability 

            It is well settled that a “person” subject to liability can be an individual sued in an individual capacity (see Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc)) or in an official capacity (see Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013)).  A “person” subject to liability can also be a municipality, county, or other local governing body. (See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978); Waggy v. Spokane County, 594 F.3d 707, 713 (9th Cir. 2010) (“Municipalities are considered ‘persons’ under 42 U.S.C. § 1983.”); King v. Cnty. of Los Angeles, 885 F.3d 548, 558 (9th Cir. 2018) (“A county is subject to Section 1983 liability . . . .”)). 

Local Governing Body Liability 

            A local governing body is not liable under § 1983 “unless action pursuant to official municipal policy of some nature caused a constitutional tort.”  Monell, 436 U.S. at 691.  But see Instruction 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof) (addressing ratification and causation).  “[A] municipality cannot be held liable under §1983 on a respondeat superior theory.”  Monell, 436 U.S. at 691. 

            A local governing body defendant, such as a school district or municipality, is not entitled to qualified immunity.  See Owen v. Independence, 445 U.S. 622, 638 (1980) (holding that “municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983”). 

            “The ‘official policy’ requirement ‘was intended to distinguish acts of the municipality from acts of employees of the municipality,’ and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.”  Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original).  Because there are several ways to establish “Monell liability,” see Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999); Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003), the Committee also includes in this chapter separate elements instructions for several bases of such liability (Instructions 9.5, 9.6, 9.7, and 9.8). 

Good-Faith Defense 

Private parties and local governments “may invoke a good faith defense to liability under section 1983.”  Danielson v. Inslee, 945 F.3d 1096, 1097 (9th Cir. 2019) (citing Clement v. City of Glendale, 518 F.3d 1090, 1096-97 (9th Cir. 2008)); see Allen v. Santa Clara Cnty. Corr. Peace Officers Ass’n, 38 F.4th 68, 71 (9th Cir. 2022) (holding that municipalities may also be entitled to a good faith defense). 

Specifically, both private parties and local governments “may invoke an affirmative defense of good faith to retrospective monetary liability under 42 U.S.C. § 1983, where they acted in direct reliance on then-binding Supreme Court precedent and presumptively-valid state law.” Danielson, 945 F.3d at 1097 (holding that public-sector unions could rely on good-faith defense to avoid liability for unlawful fees collected when binding precedent authorized such fees); see Allen, 38 F.4th at 75 (holding that county which assisted public-sector union’s efforts to collect unlawful fees could rely on same good-faith defense). 

A private party that acted upon the instructions of a local police department may also invoke a good faith defense.  Clement, 518 F.3d at 1096-97  (holding that towing company that relied on police officer’s authorization, towed vehicle under close police supervision, and did its best to follow law could rely on good-faith defense to liability even though police officer’s decision to tow vehicle violated plaintiff’s due process rights).

Eleventh Amendment Immunity 

            Despite the language of § 1983, “every person” does not have a universal scope; it does not encompass claims against a state or a state agency because the Eleventh Amendment bars such encroachments on a state’s sovereignty.  Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997) (“States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes are not ‘persons’ under § 1983,” quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)).  Even if a plaintiff seeks only injunctive relief, a state that has not waived its Eleventh Amendment immunity cannot be sued in its own name under § 1983. Will, 491 U.S. at 64, 71, n.10. 

            The Ninth Circuit applies a three-factor test to determine whether a government entity is a state agency for Eleventh Amendment purposes: (1) what is the state’s intent as to the status of the entity, including the functions performed by the entity; (2) what is the state’s control over the entity; and (3) what is the entity’s overall effects on the state treasury. Kohn v. State Bar of California, 87 F.4th 1021, 1031 (9th Cir. 2023) (en banc) (adopting the D.C. Circuit’s three-factor test). The inquiry is an entity-based approach; the status of an entity does not change from one case to the next based on the nature of the suit. Waiver and abrogation are “second-stage inquiries as to whether, if an entity is immune, that immunity may be overcome.” Id. (emphasis in original) (citations omitted). 

            In contrast to a state or state agency, a state official may be sued in his or her official capacity under § 1983, but only for prospective injunctive relief.  This is because “official-capacity actions for prospective relief are not treated as actions against the State.”  Will, 491 U.S. at 71 n.10.  A state official may be sued under § 1983 in his or her individual capacity for damages.  Kentucky v. Graham, 473 U.S. 159, 165 (1985); but see Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010) (holding that in order to be individually liable under § 1983, individual must personally participate in alleged rights deprivation). 

            The Committee also recommends the Section 1983 Outline prepared by the Office of Staff Attorneys, United States Court of Appeals for the Ninth Circuit, available at: https://www.ca9.uscourts.gov/guides/section-1983-outline/

 Revised March 2024