9.4 SECTION 1983 CLAIM AGAINST LOCAL GOVERNING BODY DEFENDANTS BASED ON OFFICIAL POLICY, PRACTICE, OR CUSTOM—ELEMENTS AND BURDEN OF PROOF
In order to prevail on [his] [her] § 1983 claim against defendant [name of local governing body] alleging liability based on an official policy, practice, or custom, the plaintiff must prove each of the following elements by a preponderance of the evidence:
1. [Name of defendant’s official or employee] acted under color of law;
2. the act[s] of [name of defendant’s official or employee] deprived the plaintiff of [his] [her] particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions; and
3. [Name of defendant’s official or employee] acted pursuant to an expressly adopted official policy or a longstanding practice or custom of the defendant.
A person acts "under color of law" when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation. [[The parties have stipulated that] [I instruct you that] [name of defendant’s official or employee] acted under color of law.]
"Official policy" means a rule or regulation promulgated, adopted, or ratified by the defendant [name of local governing body].
"Practice or custom" means any permanent, widespread, well-settled practice or custom that constitutes a standard operating procedure of the defendant [name of local governing body]. [A practice or custom can be established by repeated constitutional violations that were not properly investigated and for which the violator[s] [was] [were] not disciplined, reprimanded or punished.]
If you find the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements [he] [she] is required to prove under Instruction [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant.
Use this instruction only in conjunction with an applicable "particular rights" instruction, such as Instructions 9.9–9.25. Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue. Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act in order to avoid any risk of misstating the law. See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir. 2009).
In addition, use this instruction only when Monell liability is based on an expressly adopted official policy or a longstanding practice or custom of the defendant. For other bases of Monell liability, see Instructions 9.5 (Section 1983 Claim Against Local Governing Body Defendants Based on Act of Final Policymaker—Elements and Burden of Proof), 9.6 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof) and 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Policy of Failure to Train—Elements and Burden of Proof).
As noted in the Introductory Comment to this chapter, § 1983 liability of a local governing body lies only when "action pursuant to official municipal policy of some nature caused a constitutional tort," and not on the basis of respondeat superior. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691 (1978). See also Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 403 (1997). Such liability may attach when an employee acted pursuant to an expressly adopted official policy. Lytle v. Carl, 382 F.3d 978, 981 (9th Cir.2004). See also Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1185 (9th Cir.2002).
In addition, § 1983 liability of a local governing body may attach when an employee committed a constitutional violation pursuant to a "longstanding practice or custom." Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir.2003). The plaintiff must prove the existence of such a longstanding practice or policy as a matter of fact. Trevino v. Gates, 99 F.3d 911, 920 (9th Cir.1996) ("Normally, the question of whether a policy or custom exists would be a jury question."). A "custom or practice" must be so "persistent and widespread" that it constitutes a "permanent and well settled city policy." Id. at 918 (quoting Monell, 436 U.S. at 691). The Ninth Circuit has also held that "a custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished." Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1233-36 (9th Cir.2011). However, because the Ninth Circuit noted the language in the instruction submitted by plaintiffs was case-specific, see id. at 1233-35, use the bracketed language in the last sentence of the penultimate paragraph of the instruction only when the plaintiff has presented substantial evidence of a failure to investigate or discipline and that theory is central to the plaintiff’s case. See id.