9th Cir. Model Jury Instr. (Civil) 9.5

Based on Unlawful Official Policy, Practice, or Custom—Elements and Burden of Proof

To prevail on the plaintiff’s § 1983 claim against defendant [name of local governing body] alleging liability based on an official policy, practice, or custom, the plaintiff [name] must prove each of the following elements by a preponderance of the evidence:

First, [name of defendant’s official or employee] acted under color of state law;

Second, the act[s] of [name of defendant’s official or employee] deprived the plaintiff [name] of particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;

Third, [name of defendant’s official or employee] acted pursuant to an expressly adopted official policy or a widespread or longstanding practice or custom of the defendant [name of local governing body]; and

Fourth, the defendant [name of local governing body]’s official policy or widespread or longstanding practice or custom caused the deprivation of the plaintiff [name]’s rights by the [name of defendant’s official or employee]; that is, the [name of local governing body]’s official policy or widespread or longstanding practice or custom is so closely related to the deprivation of the plaintiff [name]’s rights as to be the moving force that caused the ultimate injury.

A person acts “under color of state 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 state law.]

“Official policy” means a formal policy, such as a rule or regulation adopted by the defendant [name of local governing body], resulting from 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.

“Practice or custom” means any longstanding, widespread, or 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 that the plaintiff [name] has proved each of these elements, and if you find that the plaintiff [name] has proved all the elements the plaintiff [name] is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff [name]. If, on the other hand, you find that the plaintiff [name] has failed to prove any one or more of these elements, your verdict should be for the defendant [name of local governing body].