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.
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:
Ninth Cir. Civ. Jury Instr. No. 9.6
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):
Ninth Cir. Civ. Jury Instr. No. 9.7.
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:
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).