California Civil Jury Instructions (CACI) (2017)

3004. Affirmative Defense - Search Incident to Lawful Arrest

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3004.Local Government Liability—Act or Ratification by Official
With Final Policymaking Authority—Essential Factual Elements
(42 U.S.C. § 1983)
[Name of plaintiff] claims that [he/she] was deprived of [his/her] civil
rights as a result of [specify alleged unconstitutional conduct, e.g., being
denied a parade permit because of the political message of the parade].
[Name of offıcial] is the person responsible for establishing final policy
with respect to [specify subject matter, e.g., granting parade permits] for
[name of local governmental entity].
To establish that [name of local governmental entity] is responsible for
this deprivation, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff]’s right [specify right violated] was
violated;
2. That [name of offıcial] was the person who [either] [actually
[made the decision/committed the acts]/ [or] later personally
ratified the [decision/acts]] that led to the deprivation of [name of
plaintiff]’s civil rights;
3. That [name of offıcial]’s [acts/decision] [was/were] a conscious
and deliberate choice to follow a course of action from among
various alternatives; and
4. That [name of offıcial] [[made the decision/committed the acts]/
[or] approved the [decision/acts]] with knowledge of [specify facts
constituting the alleged unlawful conduct].
[[Name of offıcial] “ratified” the decision if [he/she] knew the unlawful
reason for the decision and personally approved it after it had been
made.]
New December 2010; Renumbered from CACI No. 3010 December 2012
Directions for Use
Give this instruction if the plaintiff seeks to hold a local governmental entity liable
for a civil rights violation based on the acts of an official with final policymaking
authority. First give CACI No. 3000, Violation of Federal Civil Rights—In
General—Essential Factual Elements, and the instructions on the particular
constitutional violation alleged.
Liability may be based on either the official’s personal acts or policy decision that
led to the violation or the official’s subsequent ratification of the acts or decision of
another. (See Gillette v. Delmore (9th Cir. 1992) 979 F.2d 1342, 1346–1347.) If
both theories are alleged in the alternative, include “either” in element 1. Include
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the last paragraph if ratification is alleged.
For other theories of liability against a local governmental entity, see CACI No.
3001, Local Government Liability—Policy or Custom—Essential Factual Elements,
and CACI No. 3003, Local Government Liability—Failure to Train—Essential
Factual Elements.
The court determines whether a person is an official policymaker under state law.
(See Jett v. Dallas Independent School Dist. (1989) 491 U.S. 701, 737 [109 S.Ct.
2702, 105 L.Ed.2d 598].)
Sources and Authority
• “[A] local government may be held liable under § 1983 when ‘the individual
who committed the constitutional tort was an official with final policy-making
authority’ or such an official ‘ratified a subordinate’s unconstitutional decision
or action and the basis for it.’ ‘If the authorized policymakers approve a
subordinate’s decision and the basis for it, their ratification would be chargeable
to the municipality because their decision is final.’ ‘There must, however, be
evidence of a conscious, affirmative choice’ on the part of the authorized
policymaker. A local government can be held liable under § 1983 ‘only where
“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.” ’ ” (Clouthier v. County of
Contra Costa (9th Cir. 2010) 591 F.3d 1232, 1250, internal citations omitted.)
• “Two terms ago, . . . we undertook to define more precisely when a decision
on a single occasion may be enough to establish an unconstitutional municipal
policy. . . . First, a majority of the Court agreed that municipalities may be
held liable under § 1983 only for acts for which the municipality itself is
actually responsible, ‘that is, acts which the municipality has officially
sanctioned or ordered.’ Second, only those municipal officials who have ‘final
policymaking authority’ may by their actions subject the government to § 1983
liability. Third, whether a particular official has ‘final policymaking authority’ is
a question of state law. Fourth, the challenged action must have been taken
pursuant to a policy adopted by the official or officials responsible under state
law for making policy in that area of the city’s business.” (St. Louis v.
Praprotnik (1988) 485 U.S. 112, 123 [108 S.Ct. 915, 99 L.Ed.2d 107], internal
citations omitted.)
“[A] municipality may be liable for an ‘isolated constitutional violation when
the person causing the violation has final policymaking authority.’ ” (Garmon v.
County of L.A. (9th Cir. 2016) 828 F.3d 838, 847, internal citation 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,supra, 491 U.S. at p.
737, original italics.)
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• “Ratification is the voluntary election by a person to adopt in some manner as
his own an act which was purportedly done on his behalf by another person, the
effect of which, as to some or all persons, is to treat the act as if originally
authorized by him.” (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73 [104
Cal.Rptr. 57, 500 P.2d 1401].)
• “[R]atification requires, among other things, knowledge of the alleged
constitutional violation.” (Christie v. Iopa (9th Cir. 1999) 176 F.3d 1231, 1239,
internal citations omitted.)
• “[A] policymaker’s mere refusal to overrule a subordinate’s completed act does
not constitute approval.” (Christie,supra, 176 F.3d at p. 1239.)
• “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 v. County of Orange (2000) 86 Cal.App.4th 312, 328 [103 Cal.Rptr.2d
339].)
• “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.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 830
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][b]
(Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil
War Civil Rights Statutes, § 113.12 (Matthew Bender)
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