CACI 3004 Local Government Liability—Act or Ratification by Official With Final Policymaking Authority—Essential Factual Elements (42 U.S.C. § 1983)

California Civil Jury Instructions CACI

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/nonbinary pronoun] was deprived of [his/her/nonbinary pronoun] 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 official] 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 official] 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 official]’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 official] [[made the decision/committed the acts]/ [or] approved the [decision/acts]] with knowledge of [specify facts constituting the alleged unlawful conduct].

[[Name of official] “ratified” the decision if [he/she/nonbinary pronoun] knew the unlawful reason for the decision and personally approved it after it had been made.]

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 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, overruled en banc on other grounds in Castro v. County of L.A. (9th Cir. 2016) 833 F.3d 1060, 1070, 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 837, 846, 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.)

“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 (11th ed. 2017) Constitutional Law, § 905
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)