California Civil Jury Instructions (CACI) (2017)

3002. Unreasonable Search - Search With a Warrant— Essential Factual Elements (42 U.S.C. § 1983)

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3002.“Official Policy or Custom” Explained (42 U.S.C. § 1983)
“Official [policy/custom]” means: [insert one of the following:]
[A rule or regulation approved by the [city/county]’s legislative
body;] [or]
[A policy statement or decision that is officially made by the [city/
county]’s lawmaking officer or policymaking official;] [or]
[A custom that is a permanent, widespread, or well-settled practice
of the [city/county];] [or]
[An act or omission approved by the [city/county]’s lawmaking
officer or policymaking official.]
New September 2003; Revised June 2012; Renumbered from CACI No. 3008
December 2012
Directions for Use
These definitions are selected examples of official policy drawn from the cited
cases. The instruction may need to be adapted to the facts of a particular case. The
court may need to instruct the jury regarding the legal definition of “policymakers.”
In some cases, it may be necessary to include additional provisions addressing
factors that may indicate an official custom in the absence of a formal policy. The
Ninth Circuit has held that in some cases the plaintiff is entitled to have the jury
instructed that evidence of governmental inaction—specifically, failure to
investigate and discipline employees in the face of widespread constitutional
violations—can support an inference that an unconstitutional custom or practice has
been unofficially adopted. (Hunter v. County of Sacramento (9th Cir. 2011) 652
F.3d 1225, 1234, fn. 8.)
Sources and Authority
• “The [entity] may not be held liable for acts of [employees] unless ‘the action
that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that
body’s officers’ or if the constitutional deprivation was ‘visited pursuant to
governmental “custom” even though such a custom has not received formal
approval through the body’s official decisionmaking channels.’ ” (Redman v.
County of San Diego (9th Cir. 1991) 942 F.2d 1435, 1443–1444, internal
citation omitted.)
• “[T]he official municipal policy in question may be either formal or informal.”
(Castro v. Cnty. of L.A. (9th Cir. 2015) 797 F.3d 654, 670.)
• “[A]n act performed pursuant to a ‘custom’ that has not been formally approved
by an appropriate decisionmaker may fairly subject a municipality to liability on
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the theory that the relevant practice is so widespread as to have the force of
law.” (Bd. of the County Comm’rs v. Brown (1997) 520 U.S. 397, 404 [117
S.Ct. 1382, 137 L.Ed.2d 626].)
• “A formal policy exists when ‘a deliberate choice to follow a course of action is
made from among various alternatives by the official or officials responsible for
establishing final policy with respect to the subject matter in question.’. When
pursuing a Monell claim stemming from a formal policy, a plaintiff must prove
that the municipality ‘acted with the state of mind required to prove the
underlying violation.’ “(Castro, supra, 797 F.3d at pp. 670–671, internal citation
omitted.)
• “An informal policy, on the other hand, exists when a plaintiff can prove the
existence of a widespread practice that, although not authorized by an ordinance
or an express municipal policy, is ‘so permanent and well settled as to
constitute a custom or usage with the force of law.’ Such a practice, however,
cannot ordinarily be established by a single constitutional deprivation, a random
act, or an isolated event. Instead, a plaintiff . . . must show a pattern of similar
incidents in order for the factfinder to conclude that the alleged informal policy
was ‘so permanent and well settled’ as to carry the force of law.” (Castro,
supra, 797 F.3d at p. 671, internal citations omitted.)
• “While a rule or regulation promulgated, adopted, or ratified by a local
governmental entity’s legislative body unquestionably satisfies Monell’s policy
requirement, a ‘policy’ within the meaning of § 1983 is not limited to official
legislative action. Indeed, a decision properly made by a local governmental
entity’s authorized decisionmaker—i.e., an official who ‘possesses final
authority to establish [local government] policy with respect to the [challenged]
action’—may constitute official policy. ‘Authority to make municipal policy
may be granted directly by legislative enactment or may be delegated by an
official who possesses such authority, and of course whether an official had final
policymaking authority is a question of state law.’ ” (Thompson v. City of Los
Angeles (9th Cir. 1989) 885 F.2d 1439, 1443, internal citations and footnote
omitted.)
• “As with other questions of state law relevant to the application of federal law,
the identification of those officials whose decisions represent the official policy
of the local governmental unit is itself a legal question to be resolved by the
trial judge before the case is submitted to the jury.” (Jett v. Dallas Independent
School Dist. (1989) 491 U.S. 701, 737 [109 S.Ct. 2702, 105 L.Ed.2d 598].)
• “[I]t is settled that whether an official is a policymaker for a county is
dependent on an analysis of state law, not fact.” (Pitts v. County of Kern (1998)
17 Cal.4th 340, 352 [70 Cal.Rptr.2d 823, 949 P.2d 920], internal citations
omitted.)
• “Once those officials who have the power to make official policy on a particular
issue have been identified, it is for the jury to determine whether their decisions
have caused the deprivation of rights at issue by policies which affirmatively
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command that it occur, or by acquiescence in a longstanding practice or custom
which constitutes the ‘standard operating procedure’ of the local governmental
entity.” (Jett, supra, 491 U.S. at p. 737, internal citations omitted.)
• “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.” ’ Gibson
v. County of Washoe [(9th Cir. 2002) 290 F.3d 1175, 1186] discussed two types
of policies: those that result in the municipality itself violating someone’s
constitutional rights or instructing its employees to do so, and those that result,
through omission, in municipal responsibility ‘for a constitutional violation
committed by one of its employees, even though the municipality’s policies
were facially constitutional, the municipality did not direct the employee to take
the unconstitutional action, and the municipality did not have the state of mind
required to prove the underlying violation.’ We have referred to these two types
of policies as policies of action and inaction.” (Tsao v. Desert Palace, Inc. (9th
Cir. 2012) 698 F.3d 1128, 1143, internal citations omitted.)
• “A policy of inaction or omission may be based on failure to implement
procedural safeguards to prevent constitutional violations. To establish that there
is a policy based on a failure to preserve constitutional rights, a plaintiff must
show, in addition to a constitutional violation, ‘that this policy “amounts to
deliberate indifference” to the plaintiff’s constitutional right[,]’ and that the
policy caused the violation, ‘in the sense that the [municipality] could have
prevented the violation with an appropriate policy.’ ” (Tsao,supra, 698 F.3d at
p. 1143, internal citations omitted.)
• “To show deliberate indifference, [plaintiff] must demonstrate ‘that [defendant]
was on actual or constructive notice that its omission would likely result in a
constitutional violation.’ ” (Tsao,supra, 698 F.3d at p. 1145.)
• “Discussing liability of a municipality under the federal Civil Rights Act based
on ‘custom,’ the California Court of Appeal for the Fifth Appellate District
recently noted, ‘If the plaintiff seeks to show he was injured by governmental
“custom,” he must show that the governmental entity’s “custom” was “made by
its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy.” ’ ” (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 569,
fn. 11 [195 Cal.Rptr. 268], internal citations omitted.)
• “The federal courts have recognized that local elected officials and appointed
department heads can make official policy or create official custom sufficient to
impose liability under section 1983 on their governmental employers.” (Bach,
supra, 147 Cal.App.3d at p. 570, internal citations omitted.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, §§ 816,
819 et seq.
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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1 Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California,
Ch. 8, Answers and Responsive Motions Under Rule 12, 8.40
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