CACI 3001 Local Government Liability—Policy or Custom—Essential Factual Elements (42 U.S.C. § 1983)

California Civil Jury Instructions CACI

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 officer or employee] was an [officer/employee/[other]] of [name of local governmental entity];

3.That [name of officer or employee] [intentionally/[insert other applicable state of mind]] [insert conduct allegedly violating plaintiff’s civil rights];

4.That [name of officer or employee]’s conduct violated [name of plaintiff]’s right [specify right];

5.That [name of officer or employee] acted because of this official [policy/custom].

New September 2003; Revised December 2010; Renumbered from CACI No. 3007 and Revised December 2012

Crowdsource Lawyers

Directions for Use

Give this instruction and CACI No. 3002, “Official 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 Official 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 omitted.)

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)