Section 1983 claims against a municipality or its subcontractor

Under Section 1983, a government entity—such as a city or county—cannot be held indirectly responsible for its officers’ actions.  Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 (1978).  But a government entity may be held directly responsible where a policy, custom, or practice is the “moving force” behind a constitutional violation. A custom is a widespread practice, and a municipality may be sued directly for a custom that has caused the person’s harm.  A person may prove the existence of a custom or informal policy by showing evidence of repeated constitutional violations for which the municipality did not punish the officers.

To hold a public entity liable, the police-misconduct victim must demonstrate that the unlawful government action was part of the public entity’s policy or custom, and that a connection existed between the specific policy or custom and the injury.  To prove a custom, a person must put forth evidence showing the existence of “practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.”  Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).  

For example, a police-misconduct victim might be able to prove that the “code of silence”—according to which an officer does not provide adverse information against a fellow officer—caused her injury.  To do so, she would present evidence of an officer’s (or multiple officers’) tenure and prior history of bad acts; testimony from officers acknowledging the existence of a “code of silence;” expert testimony regarding the existence of a “code of silence;” and other evidence demonstrating that officers have not reported known instances of misconduct through the chain of command.

Final policymaker’s act

A final policymaker’s act may also make a municipality liable.  To prevail on such a theory, a person must prove—more likely than not—that:

• The final policymaker acted under color of state law;
• The act deprived the person of particular federal or constitutional rights;
• The final policymaker possessed final policymaking authority from the municipality’s local governing body regarding these acts;
• When the final policymaker engaged in these acts, she was acting as a final policymaker for the defendant municipality; and
• The final policymaker caused the deprivation of the person’s rights; that is, the final policymaker’s act was so closely related to the deprivation of the person’s rights as to be the “moving force” that caused the ultimate injury.

Ninth Cir. Civ. Jury Instr. No. 9.6

Ratification

Another way of holding a municipality liable is on a “ratification” theory, where a final policy maker shows agreement with a subordinate officer’s actions.  To prevail on such a theory, a person must prove that the following five elements are true (more likely than not):

• The officer acted under color of state law;
• The officer’s act (or failure to act) deprived the person of a particular federal right (such as the Fourth Amendment right to be free of excessive force);
• The final policymaker acted under color of state law;
• The final policymaker had final policymaking authority from defendant municipality concerning the officer’s act (or failure to act); and
• The final policymaker ratified the officer’s act (or failure to act) that is, the final policymaker knew of and specifically made a deliberate choice to approve the officer’s act (or failure to act) and the basis for it.

Ninth Cir. Civ. Jury Instr. No. 9.7.

Failure to train

Lastly, a victim of police misconduct may hold the municipality liable based on the municipality’s failure to train its officers.  Under the failure-to-train theory, a person must prove, more likely than not, the following:

• The officer’s act (or failure to act) deprived the person of a particular federal right (such as the Fourth Amendment right to be free of excessive force);
• The officer acted under color of state law;
• The municipality’s training procedures weren’t adequate to train its police officers to handle the usual and recurring situations that they must deal with;
• The municipality was deliberately indifferent to the known or obvious consequences of its failure to train its police officers adequately; and
• The municipality’s failure to provide adequate training caused the deprivation of the person’s rights by the individual officer; that is, the municipality’s failure to train was so closely related to the deprivation of rights as to be the moving force that caused the person’s injury.

Ninth Cir. Civ. Jury Instr. No. 9.8.

Private entities, such as security-guard companies, may be liable under § 1983.  Tsao v. Desert Palace, 698 F.3d 1128, 1139-40 (9th Cir. 2012).   

An independent contractor providing medical services to detainees is performing “state action” and can be liable under Section 1983.  West v. Atkins, 487 U.S. 42, 54–56 (1988).