CACI 3002 “Official Policy or Custom” Explained (42 U.S.C. § 1983)

New September 2003; Revised June 2012; Renumbered from CACI No. 3008 December 2012

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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.)

•“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 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 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.)