CACI No. 3002. “Official Policy or Custom” Explained (42 U.S.C. § 1983)

Judicial Council of California Civil Jury Instructions (2020 edition)

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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.)
• “[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
the theory that the relevant practice is so widespread as to have the force of
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law.” (Bd. of the County Comm’rs v. Brown (1997) 520 U.S. 397, 404 [117 S.Ct.
1382, 137 L.Ed.2d 626].)
• “The custom or policy must be 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.’ ” (Castro v. County of Los Angeles (9th Cir. 2016) 833 F.3d 1060,
1075 (en banc).)
• “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.)
• “[A] plaintiff can show a custom or practice of violating a written policy;
otherwise an entity, no matter how flagrant its actual routine practices, always
could avoid liability by pointing to a pristine set of policies.” (Castro, supra,
833 F.3d at p. 1075 fn. 10.)
• “Appellants need not show evidence of a policy or deficient training; evidence of
an informal practice or custom will suffice.” (Nehad v. Browder (9th Cir. 2019)
929 F.3d 1125, 1141.)
• “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
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.)
•“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
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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.)
• “[P]laintiff may prove . . . deliberate indifference, through evidence of a ‘failure
to investigate and discipline employees in the face of widespread constitutional
violations.’ Thus, it is sufficient under our case law to prove a ‘custom’ of
encouraging excessive force to provide evidence that personnel have been
permitted to use force with impunity.” (Rodriguez v. County of Los Angeles (9th
Cir. 2018) 891 F.3d 776, 803, internal citations omitted.)
• “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
10 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 890 et
seq.
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.14 (Matthew Bender)
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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