3d Cir. Model Jury Instr. (Civil) 4.6.6

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Last updated March 2026

of Officer Williams's violent behavior in arresting citizens, ” id. at 973 – suggesting that the Beck 1

court applied a constructive-knowledge test. Likewise, in Berg v. County of Allegheny , 219 F.3d 2

261 (2000), the court focused on whether municipal policymakers had either actual or constructive 3

knowledge of the practice for issuing warrants. See id. at 276 (“We believe it is a more than 4

reasonable inference to suppose that a system responsible for issuing 6,000 warrants a year would 5

be the product of a decision maker's action or acquiescence.” ). Similarly, in Estate of Roman v. 6

Newark, 914 F.3d 789 (3d Cir. 2019), the court specifically stated that while the plaintiff must 7

demonstrate that the city had knowledge of similar unlawful conduct in the past, he “does not need 8

to identify a responsible decisionmaker in his pleadings.” Id . at 798. The court relied in part on a 9

consent decree between the Department of Justice and Newark in holding that a complaint alleging 10

a custom of unconstitutional arrests was sufficient, where violations were widespread, and the 11

Police Department was aware of them but rarely acted on citizen complaints. Id. at 799. 12

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The Berg court stated, however, that where the custom in question does not itself constitute 14

the constitutional violation – but rather is alleged to have led to the violation – the plaintiff must 15

additionally meet the deliberate-indifference test set forth in City of Canton, Ohio v. Harris , 489 16

U.S. 378 (1989):83 “If ... the policy or custom does not facially violate federal law, causation can 17

be established only by ‘demonstrat[ing] that the municipal action was taken with “deliberate 18

indifference” as to its known or obvious consequences.’ ” Berg, 219 F.3d at 276 (quoting Board 19

of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 407 (1997)); see also Natale v. 20

Camden County Correctional Facility 318 F.3d 575, 585 (3d Cir. 2003) (finding a jury question 21

83 Similarly, when he advocated a “scienter” requirement in Simmons, Judge Becker noted

that he did not intend “to exclude from the scope of scienter's meaning a municipal policymaker's

deliberately indifferent acquiescence in a custom or policy of inadequately training employees,

even though ‘the need for more or different training is [very] obvious, and the inadequacy [quite]

likely to result in the violation of constitutional rights.’” Simmons, 947 F.2d at 1061 n.14 (quoting

City of Canton v. Harris , 489 U.S. 378, 390 (1989)). Judge Becker’s opinion did not provide

details on the application of this standard to the Simmons case, because he found that the City had

waived “the argument that plaintiff failed to establish the essential ‘scienter’ element of her case.”

Id. at 1066. Chief Judge Sloviter wrote separately to explain, inter alia, her belief “that Judge

Becker's emphasis on production by plaintiff of ‘scienter -like evidence’ when charging a

municipality with deliberate indifference to deprivation of rights may impose on plaintiffs a

heavier burden than mandated by the Supreme Court or prior decisions of this court.” Id. at 1089

(Sloviter, C.J., concurring in part and in the judgment). Chief Judge Sloviter stressed “that liability

may be based on the City's (i.e., policymaker's) reckless refusal or failure to take account of facts

or circumstances which responsible individuals should have known,” id. at 1090, and she pointed

out that a standard requiring “actual knowledge of the conditions by a municipal policymaker ...

would put a premium on blinders,” id. at 1091.