CACI No. 3001. Local Government Liability - Policy or Custom - Essential Factual Elements (42 U.S.C. § 1983)

Judicial Council of California Civil Jury Instructions (2023 edition)

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3001.Local Government Liability - Policy or Custom - Essential
Factual Elements (42 U.S.C. § 1983)
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was deprived of
[his/her/nonbinary pronoun] civil rights as a result of an official [policy/
custom] of the [name of local governmental entity]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That the [name of local governmental entity] had an official [policy/
custom] [specify policy or custom];
2. That [name of offıcer or employee] was an
[officer/employee/[other]] of [name of local governmental entity];
3. That [name of offıcer or employee] [intentionally/[insert other
applicable state of mind]] [insert conduct allegedly violating
plaintiff’s civil rights];
4. That [name of offıcer or employee]’s conduct violated [name of
plaintiff]’s right [specify right];
5. That [name of offıcer or employee] acted because of this official
New September 2003; Revised December 2010; Renumbered from CACI No. 3007
and Revised December 2012
Directions for Use
Give this instruction and CACI No. 3002, “Offıcial Policy or Custom” Explained, if
the plaintiff seeks to hold a local governmental entity liable for a civil rights
violation based on the entity’s official policy or custom. First give CACI No. 3000,
Violation of Federal Civil Rights - In General - Essential Factual Elements, and the
instructions on the particular constitutional violation alleged.
In element 3, a constitutional violation is not always based on intentional conduct.
Insert the appropriate level of scienter. For example, Eighth Amendment cases
involving failure to provide a prisoner with proper medical care require “deliberate
indifference.” (See Hudson v. McMillian (1992) 503 U.S. 1, 5 [112 S.Ct. 995, 117
L.Ed.2d 156].) And Fourth Amendment claims require an “unreasonable” search or
seizure. (See Sacramento County Deputy Sheriffs’ Assn. v. County of Sacramento
(1996) 51 Cal.App.4th 1468, 1477 [59 Cal.Rptr.2d 834.)
For other theories of liability against a local governmental entity, see CACI No.
3003, Local Government Liability - Failure to Train - Essential Factual Elements,
and CACI No. 3004, Local Government Liability - Act or Ratification by Offıcial
With Final Policymaking Authority - Essential Factual Elements.
Sources and Authority
“[I]t is when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is responsible
under § 1983.” (Monell v. Dept. of Social Services of New York (1978) 436 U.S.
658, 694 [98 S.Ct. 2018, 56 L.Ed.2d 611].)
Local governmental entities ‘can be sued directly under § 1983 for monetary,
declaratory, or injunctive relief where . . . the action that is alleged to be
unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted. . . .’ Local governmental entities also
can be sued ‘for constitutional deprivations visited pursuant to governmental
“custom.” In addition, ‘[t]he plaintiff must . . . demonstrate that, through its
deliberate conduct, the municipality was the “moving force” behind the injury
alleged. That is, a plaintiff must show that the municipal action was taken with
the requisite degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.’ (Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1147 [119 Cal.Rptr.2d 709, 45
P.3d 1171], internal citations omitted.)
“Entity liability may arise in one of two forms. The municipality may itself have
directed the deprivation of federal rights through an express government policy.
This was the situation in Monell, where there was an explicit policy requiring
pregnant government employees to take unpaid leaves of absence before such
leaves were medically required. . . . Alternatively, the municipality may have in
place a custom or practice so widespread in usage as to constitute the functional
equivalent of an express policy.” (Choate v. County of Orange (2000) 86
Cal.App.4th 312, 328 [103 Cal.Rptr.2d 339].)
‘[I]n order to successfully maintain an action under 42 United States Code
section 1983 against governmental defendants for the tortious conduct of
employees under federal law, it is necessary to establish that the conduct
occurred in execution of a government’s policy or custom promulgated either by
its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy.’ (Newton v. County of Napa (1990) 217 Cal.App.3d 1551, 1564
[266 Cal.Rptr. 682], internal citations omitted.)
Monell provides that a governmental entity may only be held liable where the
entity causes a constitutional violation. To establish Monell liability, “a plaintiff
must ‘identify the challenged policy, [practice, or custom,] attribute it to the
[county] itself, and show a causal link between the execution of the policy,
[practice, or custom,] and the injury suffered.’ [Citation.] In addition, plaintiffs
must “present scienter-like evidence of indifference on the part of a particular
policymaker or policymakers.” [Citation.] The requirement of producing scienter-
like evidence on the part of an official with policymaking authority is consistent
with the conclusion that “absent the conscious decision or deliberate indifference
of some natural person, a [governmental entity], as an abstract entity, cannot be
deemed to have engaged in a constitutional violation by virtue of a policy, a
custom or failure to train.” [Citation.] “[I]n the absence of any unconstitutional
statute or rule, it is plaintiffs’ burden to articulate a factual basis that
demonstrates considerably more proof than a single incident.” (Arista v.
County of Riverside (2018) 29 Cal.App.5th 1051, 1064 [241 Cal.Rptr.3d 437].)
“Under Monell, a local government body can be held liable under § 1983 for
policies of inaction as well as policies of action. A policy of action is one in
which the government body itself violates someone’s constitutional rights, or
instructs its employees to do so; a policy of inaction is based on a government
body’s ‘failure to implement procedural safeguards to prevent constitutional
violations.’ (Jackson v. Barnes (9th Cir. 2014) 749 F.3d 755, 763], internal
citations omitted.)
“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.” (Trevino v. Gates (9th Cir. 1996) 99 F.3d 911, 920.)
“A triable issue exists as to whether the root of the unconstitutional behavior
exhibited in [plaintiff]’s case lies in the unofficial operating procedure of
[defendant] County or in the errant acts of individual social workers, and this
question should go to a jury.” (Kirkpatrick v. County of Washoe (9th Cir. 2015)
792 F.3d 1184, 1201.)
“At most, Monell liability adds an additional defendant, a municipality, to the
universe of actors who will be jointly and severally liable for the award.”
(Choate, supra, 86 Cal.App.4th at p. 328.)
“To meet this [Monell] requirement, the plaintiff must show both causation-in-
fact and proximate causation.” (Gravelet-Blondin v. Shelton (9th Cir. 2013) 728
F.3d 1086, 1096.)
“Any damages resulting from a possible Monell claim would result from the
same constitutional violation of the warrantless arrest which resulted in nominal
damages. Even if [plaintiff] were to prove the City failed to adequately train the
police officers, the result would simply be another theory of action concerning
the conduct the jury has already determined was not the proximate cause of
[plaintiff]’s injuries. [Plaintiff]’s recovery, if any, based upon a Monell claim
would be limited to nominal damages.” (George v. Long Beach (9th Cir. 1992)
973 F.2d 706, 709.)
“Local governmental bodies such as cities and counties are considered ‘persons’
subject to suit under section 1983. States and their instrumentalities, on the other
hand, are not.” (Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83
Cal.App.4th 1098, 1101 [100 Cal.Rptr.2d 289], internal citations omitted.)
“A municipality can be sued under section 1983 for ‘constitutional deprivations
visited pursuant to governmental “custom.” However, ‘Congress did not intend
municipalities to be held liable unless action pursuant to official municipal policy
of some nature caused a constitutional tort. In particular, . . . a municipality
cannot be held liable solely because it employs a tortfeasor - or, in other words,
a municipality cannot be held liable under § 1983 on a respondeat superior
theory.’ (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1118
[190 Cal.Rptr.3d 97], original italics, internal citation omitted.)
“A local governmental unit is liable only if the alleged deprivation of rights
‘implements or executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers,’ or when the injury is
in ‘execution of a [local] government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent
official policy.’ (County of Los Angeles v. Superior Court (1998) 68
Cal.App.4th 1166, 1171 [80 Cal.Rptr.2d 860], internal citations omitted.)
“A municipality’s policy or custom resulting in constitutional injury may be
actionable even though the individual public servants are shielded by good faith
immunity.” (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 568 [195
Cal.Rptr. 268], internal citations omitted.)
“No punitive damages can be awarded against a public entity.” (Choate, supra,
86 Cal.App.4th at p. 328, internal citation omitted.)
“[T]he requirements of Monell do apply to suits against private entities under
§ 1983. . . . [W]e see no basis in the reasoning underlying Monell to distinguish
between municipalities and private entities acting under color of state law.” (Tsao
v. Desert Palace, Inc. (9th Cir. 2012) 698 F.3d 1128, 1139, internal citations
Secondary Sources
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 888,
892 et seq.
17A Moore’s Federal Practice (3d ed.), Ch.123, Access to Courts: Eleventh
Amendment and State Sovereign Immunity, § 123.23 (Matthew Bender)
1 Civil Rights Actions, Ch. 2, Governmental Liability and Immunity, 2.03[2][a]
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)

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