9.5 Section 1983 Claim Against Local Governing Body Defendants Based on Official Policy, Practice or Custom—Elements and Burden of Proof

            In order to prevail on the plaintiff’s § 1983 claim against defendant [name of local governing body] alleging liability based on an official policy, practice, or custom, the plaintiff must prove each of the following elements by a preponderance of the evidence:
 

1.         [Name of defendant’s official or employee] acted under color of state law;

2.         the act[s] of [name of defendant’s official or employee] deprived the plaintiff of particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;

3.         [Name of defendant’s official or employee] acted pursuant to an expressly adopted official policy or a widespread or longstanding practice or custom of the defendant [name of local governing body]; and

4.         the defendant [name of local governing body]’s official policy or widespread or longstanding practice or custom caused the deprivation of the plaintiff’s rights by the [name of defendant’s official or employee]; that is, the [name of local governing body]’s official policy or widespread or longstanding practice or custom 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] [name of defendant’s official or employee] acted under color of state law.] 

            “Official policy” means a formal policy, such as a rule or regulation adopted by the defendant [name of local governing body], resulting from a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. 

            “Practice or custom” means any longstanding, widespread, or well-settled practice or custom that constitutes a standard operating procedure of the defendant [name of local governing body].  [A practice or custom can be established by repeated constitutional violations that were not properly investigated and for which the violator[s] [was] [were] not disciplined, reprimanded or punished.] 

            If you find that the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements the plaintiff 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, you find that 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 9.9–9.33.  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 an expressly adopted official policy or a widespread or longstanding practice or custom of the defendant that is alleged either to be itself unlawful or to direct employees to act in an unlawful manner.  See, e.g., Endy v. Cnty. of Los Angeles, 975 F.3d 757, 769 (9th Cir. 2020); Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014).  For other bases of Monell liability, see Instructions 9.6 (Section 1983 Claim Against Local Governing Body Defendants Based on Act of Final Policymaker—Elements and Burden of Proof), 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof) and 9.8 (Section 1983 Claim Against Local Governing Body Defendants Based on a Failure to Prevent Violations of Law or a Failure to Train—Elements and Burden of Proof). 

            As noted in the Introductory Comment to this chapter, § 1983 liability of a local governing body may not be based on respondeat superior.  Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978).  Such liability may attach when an employee committed a constitutional violation pursuant to an expressly adopted official policy.  Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013). “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.”  Endy, 975 F.3d at 769 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).  “[A] rule or regulation promulgated, adopted, or ratified by a local governmental entity’s legislative body unquestionably satisfies Monell’s policy requirement[.]”  Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989), overruled on other grounds by Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc).  Whether a municipal policy or custom exists is a question of fact.  Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996) (“Normally, the question of whether a policy or custom exists would be a jury question.  However, when there are no genuine issues of material fact and the plaintiff has failed to establish a prima facie case, disposition by summary judgment is appropriate.”). 

“Official policy” means a formal policy, such as a rule or regulation adopted by the defendant, resulting from a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.  Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986); accord Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021). 

            Such liability may also attach when an employee committed a constitutional violation pursuant to a widespread practice or custom. Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997); Benavidez, 993 F.3d at 1153. A widespread “custom or practice” must be so “persistent” that it constitutes a “permanent and well settled city policy.”  Trevino, 99 F.3dat 918 (quoting Monell, 436 U.S. at 691);see also Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 984 (9th Cir. 2002)(“Showing a ‘longstanding practice or custom which constitutes the “standard operating procedure” of the local government entity’ is one way to establish municipal liability.” (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989))).  A widespread custom or practice cannot be based on “isolated or sporadic incidents; [liability] must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.”  Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 884 (9th Cir. 2022) (quoting Trevino, 99 F.3d at 918). 

             “[A] custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished.”  Hunter v. County of Sacramento, 652 F.3d 1225, 1236 (9^th Cir. 2011); see also Nehad v. Browder, 929 F.3d 1125, 1141-42 (9th Cir. 2019) (citing evidence sufficient to create triable issue regarding informal practice or policy).  The Ninth Circuit has used the term “longstanding” practice or custom interchangeably with the Supreme Court’s more frequent usage of “widespread.”  See, e.g.,Sabra, 44 F.4th at 883Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999); Connick v. Thompson, 563 U.S. 51, 61 (2011).  Use the bracketed language in the last sentence of the penultimate paragraph of the instruction only when the plaintiff has presented substantial evidence of a failure to investigate or discipline and that theory is central to the plaintiff’s case.  See Hunter, 652 F.3d at 1235. “Official nonfeasance can constitute a Monell violation when the municipality in effect ‘has a policy of inaction and such inaction amounts to a failure to protect constitutional rights.’” Scanlon v. County of Los Angeles, 92 F.4th 781, 812 (9th Cir. 2024) (quoting Mortimer v. Baca, 594 F3d 714, 722 (9th Cir. 2010)).

            A plaintiff seeking to establish municipal liability must demonstrate that the government “had a deliberate policy, custom, or practice that was the ‘moving force’ behind the constitutional violation he suffered.”  Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013) (citations and quotations omitted).  “To meet this requirement, the plaintiff must show both causation-in-fact and proximate causation.”  Id. 

Revised March 2024