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 the plaintiff’s § 1983 claim against defendant [name of local governing body] alleging liability based on a policy [that fails to prevent violations of law by its] [of a 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 [prevent violations of law by its employees] [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 [substantial risk that its policies were inadequate to prevent violations of law by its employees] [known or 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 prevent violations of law by its employees] [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 prevent violations of law by its employees] [to train] played a substantial part in bringing about or actually causing the injury or damage to the plaintiff.

            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 [police officer[s]] [employee[s]] acted under color of state law.]

            A policy is 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.  [A policy of inaction or omission may be based on a failure to implement procedural safeguards to prevent constitutional violations.  To establish that there is a policy based on a failure to preserve constitutional rights, the plaintiff must show, in addition to a constitutional violation, that this policy amounts to deliberate indifference to the plaintiff’s constitutional rights, and that the policy caused the violation, in the sense that the municipality could have prevented the violation with an appropriate policy.]

            “Deliberate indifference” is the conscious choice to disregard a known or obvious consequences of one’s acts or omissions.  The plaintiff may prove deliberate indifference in this case by showing that the facts available to the defendant [name of local governing body] put it on actual or constructive notice that its [failure to implement adequate policies] [failure to train adequately] was substantially certain to result in the violation of the constitutional rights of persons such as the plaintiff due to [police officer[s]] [employee[s]]’s conduct.

            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, 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 a local governing body’s policy of inaction, such as a failure to train its police officers.  

            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).  Instead, a plaintiff must establish a “direct causal link” between the municipal policy or custom and the alleged constitutional violation.  See City of Canton v. Harris, 489 U.S. 378, 385 (1989); Sandoval v. Cnty. of San Diego, 985 F.3d 657, 681 (9th Cir. 2021). This “requires showing both but for and proximate causation.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). In Harper, the Ninth Circuit approved of a jury instruction that explained that “proximate cause exists where ‘an act or omission played a substantial part in bringing about or actually causing the injury or damage to plaintiffs.’” Harper, 533 F.3d at 1026. 

            “A policy of inaction or omission may be based on failure to implement procedural safeguards to prevent constitutional violations.”  Tsao, 698 F.3d at 1143. A local government’s failure to train its employees “may serve as the basis for § 1983 liability . . . where the failure to train amounts to deliberate indifference to the rights of persons with whom the [employees] come into contact.” City of Canton, 489 U.S. at 388; seeConnick v. Thompson, 563 U.S. 51, 61 (2011)     The elements of a failure to train Monell claim are: (1) a constitutional violation; (2) a municipal training policy that amounts to a deliberate indifference to constitutional rights; and (3) that the constitutional injury would not have resulted if the municipality properly trained their employees.  Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153-54 (9th Cir. 2021).

              “Deliberate indifference” requires proof that a municipal actor disregarded a known or obvious consequence of his action.  Connick, 563 U.S. at 61 (“[W]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program.”); see alsoCastro v. Cnty. of Los Angeles, 833 F.3d 1060, 1077 (9th Cir. 2016) (en banc)(“Where a § 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the dictates of Monell are satisfied.” (quoting City of Canton, 489 U.S. at 396))..  In Castro v. County of Los Angeles, 833 F.3d at 1076 (9th Cir. 2016) (en banc), the Ninth Circuit held that the deliberate indifference inquiry is objective for pretrial detainees’ failure-to-protect claims. “A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.”  Connick, 563 U.S. at 62; see also Hyde v. City of Willcox, 23 F.4th 863, 874-75 (9th Cir. 2022) (holding that “[w]hile deliberate indifference can be inferred from a single incident when the unconstitutional consequences of failing to train are patently obvious, an inadequate training policy itself cannot be inferred from a single incident.”) (quotation marks and citation omitted); Flores v. County of Los Angeles, 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. County of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012) (holding that practice must be “widespread” and proof of single inadequately-trained employee was insufficient); Doughtery v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (“Mere negligence in training or supervision … does not give rise to a Monell claim.”). 

However, the Supreme Court has “left open the possibility that, ‘in a narrow range of circumstances,’ a pattern of similar violations might not be necessary to show deliberate indifference,” using the hypothetical of a case in which an officer was provided firearms but given no training on the constitutional limits on the use of deadly force.  Connick, 563 U.S. at 63-64 (quotingBd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997), and citing Canton, 489 U.S. at 389-90).  In Kirkpatrick v. Washoe County, 843 F.3d 784 (9th Cir. 2016) (en banc), the Ninth Circuit held that a county social services agency’s complete failure to train its social workers on the procedures for obtaining a warrant and when a warrant is required before taking a child from a parent was just such a “narrow circumstance” in which evidence of a pattern of similar violations was unnecessary.  See id. at 796-97.  In Sandoval v. County of San Diego, 985 F.3d 657, 682 (9th Cir. 2021), the Ninth Circuit applied an objective deliberate indifference standard to the county’s policy of maintaining a mixed-use cell—sometimes using the cell for medical care and other times as a general holding cell—with only an informal verbal pass-off system for notifying nurses whether the detainee in the mixed-use cell required medical supervision. The court held that the standard “requires a showing that the facts available to the county put it on ‘actual or constructive notice’ that its practices with regard to [the mixed-use] cell were ‘substantially certain to result in the violation of the constitutional rights of [its] citizens.’” Id. (footnote omitted) (quoting Castro, 833 F.3d at 1076). 

If the plaintiff is alleging inadequate hiring or screening of employees, inadequate supervision, or failure to adopt a needed policy, elements 3 through 5 of this instruction should be modified accordingly.  See Brown, 520 U.S. at 409-11 (addressing failure to screen candidates); Jackson v. Barnes, 749 F.3d 755, 763-64 (9th Cir. 2014) (addressing failure to supervise), cert. denied, 135 S. Ct. 980 (2015); Tsao, 698 F.3d at 1143 (addressing failure to implement policy).  As with a failure to train claim, the plaintiff must show that the failure to properly hire, supervise, or adopt a policy amounted to deliberate indifference by the governing body.  See, e.g., Brown, 520 U.S. at 407; Tsao, 698 F.3d at 1143, 1145.  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 that Violates Law or Directs Employee to Violate Law—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 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof).

In Bell v. Williams, 108 F.4th 809 (9th Cir. 2024), the Ninth Circuit reiterated that, under Monell, a plaintiff “must show a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” Id. at 824. The court added: “One way of doing so is by showing that the municipality demonstrated deliberate indifference to constitutional rights when it trained its employees. This requires proof that a municipal actor disregarded a known or obvious consequence of his action.” Id. Where “the training program for jail officers . . . covered the relevant topics with reasonable specificity,” the program “does not demonstrate deliberate indifference to a known risk” for purposes of Monell liability even if there are “narrow gaps” in the training. Id. at 825-26. 

Revised September 2024