FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT E. HUNTER, D.V.M.;
HOWARD ELEY,
Plaintiffs-Appellants,
v.
No. 09-15288
COUNTY OF SACRAMENTO; SHERIFF’S
D.C. No.
DEPARTMENT, COUNTY OF
SACRAMENTO; LOU BLANAS, 2:06-cv-00457-
SHERIFF; OFFICE OF THE DISTRICT GEB-EFB
ATTORNEY, COUNTY OF OPINION
SACRAMENTO; JAN SCULLY; WILLIAM
KEVIN SOWLES; JOHN MCGINNESS,
SHERIFF;
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted
October 7, 2010—San Francisco, California
Filed July 26, 2011
Before: Stephen Reinhardt and Marsha S. Berzon,
Circuit Judges, and Louis H. Pollak, Senior District Judge.*
Opinion by Judge Pollak
*The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
9579
9582 HUNTER v. COUNTY OF SACRAMENTO
COUNSEL
Gary W. Gorski (argued), Fair Oaks, California, and Daniel
M. Karalash, Sacramento, California, for the plaintiffs-
appellants.
Thomas A. Cregger (argued), Randolph Cregger & Chalfant
LLP, Sacramento, California, for the defendants-appellees.
OPINION
POLLAK, District Judge:
Robert Hunter and Howard Eley, the plaintiffs in this
§ 1983 action, sought to prove at trial that they were subjected
to excessive force while in custody at the Sacramento County
Main Jail pursuant to the County’s allegedly unconstitutional
custom or practice of using excessive force at the Main Jail.
The jury found in favor of the County, and the District Court
denied plaintiffs’ motion for a new trial. In this appeal, plain-
tiffs argue that the District Court erred by refusing to use cer-
tain jury instructions they requested. Because we agree that
HUNTER v. COUNTY OF SACRAMENTO 9583
the District Court erred, and that its error was prejudicial, we
reverse the District Court’s order and remand for a new trial.
I
Plaintiffs initiated this action on March 3, 2006, and filed
their Second Amended Complaint (“Complaint”) on August
22, 2006. The Complaint alleges that, on September 17, 2005,
plaintiff Hunter was arrested for driving while under the influ-
ence. He was taken to the Sacramento County Main Jail
(“Main Jail”), where he was placed in a detox cell with a
clogged and overflowing toilet. The Complaint further alleges
that when Hunter alerted several deputies of the Sacramento
County Sheriff’s Department about the toilet’s condition, the
deputies responded by throwing him to the floor and applying
force that resulted in a fractured elbow, stretched tendons, and
nerve damage. The Complaint also alleges that plaintiff Eley
was an inmate at the Main Jail, and that on March 21, 2004,
Eley had a verbal disagreement with a deputy sheriff, after
which the sheriff shoved, slapped, and choked Eley without
provocation.
Plaintiffs’ Complaint named a number of defendants and
asserted several causes of action. In its September 8, 2008 rul-
ing on the defendants’ summary judgment motion, the District
Court dismissed all of plaintiffs’ claims except for their Monell1
claim against the County of Sacramento (“defendant” or
“County”). Plaintiffs’ Monell claim alleged that they were
subjected to excessive force, in violation of their rights under
42 U.S.C. § 1983, pursuant to defendant’s longstanding prac-
tice or custom of subjecting inmates at the Main Jail to exces-
sive force.
1
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (holding
that a municipality may be sued as a “person” under 42 U.S.C. § 1983
when the municipality’s “policy or custom, whether made by its lawmak-
ers or by those whose edicts or acts may fairly be said to represent official
policy” inflicts a constitutional injury).
9584 HUNTER v. COUNTY OF SACRAMENTO
In its ruling denying summary judgment on this claim, the
District Court’s opinion placed primary emphasis upon a dec-
laration submitted by plaintiffs’ expert, Lieutenant Twomey,
a former employee of the Sacramento County Sheriff’s
Department (“Sheriff’s Department”). Lt. Twomey declared
that there were 40 to 50 “major incidents” of excessive force
at the Main Jail from 2000 to 2005. Lt. Twomey also declared
that officials in the jail repeatedly failed to investigate the
incidents, discipline the guards, or take other action to address
the problem. For example, no Internal Affairs investigation
was opened after a detainee named Jafar Afshar filed a com-
plaint alleging that he had been subject to excessive force in
the Main Jail when a deputy grabbed him from behind and
threw him backward, smashing his head onto the floor. A
Sheriff’s Department official later admitted that an investiga-
tion should have been opened but was not. Similarly, Lt.
Twomey declared that, in his experience, an internal investi-
gation should have been opened when inmate Mihaita Con-
stantin suffered a fractured nose and hand after being thrown
to the ground and having his wrists restrained by five depu-
ties, none of whom were injured in the altercation. The Court
found that all of this evidence created a material issue of fact
as to whether the County had a practice or custom of using
excessive force, despite the fact that the County had formal
written policies prohibiting the use of excessive force.
On September 25, 2008, about a month and a half before
trial, the District Court instructed the parties to submit pro-
posed jury instructions. On October 14, plaintiffs and defen-
dant both submitted proposed jury instructions. Plaintiffs
offered 21 proposed instructions, 12 of which elucidated vari-
ous ways in which a plaintiff may establish municipal liability
under Monell. On October 31, the District Court issued its
own set of proposed jury instructions, instructing the parties
to submit any suggested modifications as soon as possible.
The instruction of central relevance to this appeal laid out
the elements of a Monell claim for the use of excessive force
HUNTER v. COUNTY OF SACRAMENTO 9585
in violation of the Fourth Amendment (“Monell instruction”).
The District Court’s proposed Monell instruction read, in its
entirety, as follows:
Each Plaintiff alleges that the Defendant County
of Sacramento violated his Fourth Amendment con-
stitutional right against use of excessive force. To
prevail on this claim each Plaintiff must prove by a
preponderance of the evidence each of the following
elements:
First, that one or more of Defendant’s employees
used excessive force against Plaintiff in violation of
the Fourth Amendment of the United States constitu-
tion.
Second, that in so doing, Defendant’s employee or
employees acted pursuant to a longstanding practice
or custom of Defendant.
Third, that Plaintiff was injured; and,
Fourth, that Defendant’s longstanding practice or
custom was so closely related to Plaintiff’s injury
that it was the moving force causing Plaintiff’s
injury.
Excerpts of Record (“ER”) at 14. Both parties filed objections
and proposed modifications to the District Court’s instruc-
tions. The document filed by plaintiffs began as follows:
“PLEASE TAKE NOTICE that Plaintiffs object to the pro-
posed Jury Instructions proffered by the Court, and request
the following modifications.” In the body of the document,
plaintiffs explained that they did “not object to [the Monell
instruction] as written,” but they “specifically request[ed] the
following proposed instructions be provided as well, as they
state the law in the Ninth Circuit accurately, and in this Dis-
trict.” Plaintiffs then listed the following ten additional
9586 HUNTER v. COUNTY OF SACRAMENTO
instructions, all of which were taken from their earlier list of
proposed instructions and addressed standards for liability
under Monell.
(1) The routine failure to follow a general policy can
itself constitute an actionable custom.
(2) Plaintiff can establish municipal liability against
Defendant by proving that the excessive force was
committed pursuant to a longstanding practice or
custom which constitutes the “standard operating
procedure” of the local governmental entity.
(3) Regardless of whether the County has formal
policies regarding the use of force, routine failure to
follow a general policy can itself constitute an
actionable custom.
(4) Failure to properly investigate, like failure to
discipline employees involved in incidents of exces-
sive force, is evidence of and supports a finding that
not only was it accepted, but was customary.
(5) Plaintiff may also attempt to prove the existence
of a custom or informal policy with evidence of
repeated constitutional violations for which the
errant municipal officials were not discharged or
reprimanded.
(6) Policy or custom may be inferred if, after the use
of excessive force, the County of Sacramento took
no steps to reprimand or discharge the deputy sher-
iffs, or if they otherwise failed to admit the deputy
sheriffs’ conduct was in error.
(7) The County is liable for depriving Plaintiff of a
federal right if it is determined it did an affirmative
act, participated in another’s affirmative acts, or
HUNTER v. COUNTY OF SACRAMENTO 9587
omitted to perform an act which it was legally
required to do that causes the deprivation.
(9) Liability for an established custom can be
imposed irrespective of whether official policy mak-
ers had actual knowledge of the practice at issue.
(11) Failure to properly investigate, like failure to
discipline employees involved in incidents of exces-
sive force, is evidence of and supports a finding
excessive force was not only accepted but was cus-
tomary.
(12) The extent and openness of excessive force sup-
ports an inference that managerial level employees
should have known.
ER 35-37 (citations omitted).2 Each of these instructions was
accompanied by a citation to one or more cases providing
legal support for the stated proposition.
The District Court thereafter issued a final set of jury
instructions for use during trial. ER 8-11 (excerpting relevant
instructions). The Court did not adopt any of plaintiffs’ pro-
posed supplemental instructions. Appellants’ Br. at 6. Indeed,
the District Court’s order did not acknowledge that plaintiffs
had filed supplemental instructions, or explain why it was not
using any of those instructions. ER 8.3
The final instructions did reflect the County’s suggestion
that the definition of the term “practice or custom” used in
Ninth Circuit Model Civil Jury Instruction 9.4 (2007) be
2
The numbers for these instructions correspond to the numbers used
when plaintiffs first submitted proposed instructions to the District Court
on October 14, 2008.
3
The court’s entire order stated: “Attached are the closing jury instruc-
tions. The verdict forms filed October 31, 2008, will be used.” ER 8.
9588 HUNTER v. COUNTY OF SACRAMENTO
added to the proposed Monell instruction. That definition
specifies that “ ‘[p]ractice or custom’ means any permanent,
widespread, well-settled practice or custom that constitutes a
standard operating procedure of the defendant.” Ninth Circuit
Model Civil Jury Instruction 9.4 (2007) (“Model Instruction
9.4”). The court incorporated this definition in a separate
instruction in its final set of jury instructions.
Trial began on August 4, 2008, and the District Court
instructed the jury on August 12, 2008. The jury was given
general verdict forms which asked whether each plaintiff had
“prevail[ed] on his Fourth Amendment claim against the
County of Sacramento” and, if so, what amount of damages
was caused by the County. The jury returned a verdict in
favor of the County and against both of the plaintiffs.
Plaintiffs filed a motion for a new trial on November 24,
2008, which argued, in relevant part, that the District Court
had failed to instruct the jury on the law as proffered in plain-
tiffs’ proposed additional jury instructions. The District Court
rejected plaintiffs’ retrial request on January 8, 2009, finding
that it was “based on a one sentence conclusory argument
which assumes Plaintiffs’ proposed instructions were not con-
sidered before the jury instructions were finalized.” ER 3. The
court also concluded that plaintiffs did not show “that the
instructions given failed to ‘fairly and adequately cover the
issues’ tried.” ER 4 (quoting Duran v. City of Maywood, 221
F.3d 1127, 1130 (9th Cir. 2000)). Plaintiffs filed a timely
notice of appeal on February 9, 2009.
II
Plaintiffs object to the jury instructions used by the District
Court on several grounds. Defendant argues that the instruc-
tions given were appropriate and that plaintiffs have waived
their arguments concerning the instructions. We conclude that
plaintiffs properly objected to the District Court’s refusal to
HUNTER v. COUNTY OF SACRAMENTO 9589
use plaintiffs’ supplemental Monell instructions, and that the
District Court erred by declining to use those instructions.4
A.
[1] We begin by addressing whether plaintiffs properly
objected to the District Court’s Monell instruction. Under
Federal Rule of Civil Procedure 51, “[a] party who objects to
an instruction or the failure to give an instruction must do so
on the record, stating distinctly the matter objected to and the
grounds for the objection.” Fed. R. Civ. P. 51(c)(1). An objec-
tion to a jury instruction “ ‘need not be formal,’ ” and a party
may properly object by submitting a proposed instruction that
is supported by relevant authority, so long as the “proffered
language [is] ‘sufficiently specific to bring into focus the pre-
cise nature of the alleged error.’ ” Norwood v. Vance, 591
F.3d 1062, 1066 (9th Cir. 2010) (quoting Inv. Serv. Co. v.
Allied Equities Corp., 519 F.2d 508, 510 (9th Cir. 1975)). If
a party does not properly object to jury instructions before the
district court, we may only consider “a plain error in the
instructions that . . . affects substantial rights.” Fed. R. Civ.
P. 51(d)(2).5
4
Because we vacate the judgment below based upon the inadequacy of
the jury instructions used at trial, we do not reach plaintiffs’ alternative
argument that the District Court committed error during the jury’s deliber-
ations by refusing to provide a copy of a missing exhibit to the jury in
response to a note from the jury. See Appellants’ Br. at 4-5, 9-12.
5
Traditionally, this court adhered to the strict rule that it would only
review objections to jury instructions in a civil case if the party properly
objected at the district court level. See Voohries-Larson v. Cessna Aircraft
Co., 241 F.3d 707, 713-14 (9th Cir. 2001) (“[W]e have consistently
declared that there is no ‘plain error’ exception in civil cases in this cir-
cuit.” (citing Hammer v. Gross, 932 F.2d 842, 847 (9th Cir. 1991) (en
banc))). However, in 2003, Rule 51 was amended to add subsection (d)(2),
which permits plain error review even when a party failed to properly
object before the district court if the error affects substantial rights. See 9C
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2558 (3d ed. 2008) (“The 2003 amendment . . . of Rule 51 codified the
9590 HUNTER v. COUNTY OF SACRAMENTO
[2] Plaintiffs have indeed made certain arguments for the
first time in this appeal—arguments that we find unpersuasive.6
previous practice followed by most circuits that said that the appellate
court may reverse for plain error in an instruction to the jury even if there
had been no objection to it.”). Accordingly, the 2003 amendment abro-
gated the rule set out in our pre-2003 decisions. Our post-2003 unpub-
lished decisions following our earlier rule did not recognize that Rule 51
had been amended to permit plain error review. See Reyna v. City of Port-
land, 270 F. App’x 682, 686-87 (9th Cir. 2008) (unpublished); Mosqueda
v. County of Los Angeles, 171 F. App’x 16, 17 (9th Cir. 2006) (unpub-
lished).
6
In their appellate brief, plaintiffs challenge the District Court’s exces-
sive force instruction. However, plaintiffs’ filings in the District Court
never challenged or proposed alternative language to the District Court’s
excessive force instruction. Accordingly, plaintiffs’ objections in the Dis-
trict Court were not enough to “bring into focus the precise nature” of the
arguments regarding the excessive force instruction that plaintiffs now
make in this appeal. Palmer v. Hoffman, 318 U.S. 109, 119 (1943).
Plaintiffs must therefore establish that the excessive force instruction
contained a plain error affecting substantial rights. Fed. R. Civ. P.
51(d)(2). Plaintiffs argue that the court’s excessive force instruction was
“confusing on its face” because the instruction was “not particularly rele-
vant to an action which does not involve use of force during an arrest.”
Appellants’ Br. at 13 (citing ER 10). However, the instruction never uses
the word “arrest,” and it specifically advises jurors to consider the “sever-
ity of the crime or other circumstances to which the officer was respond-
ing.” ER 11 (emphasis added). By including “other circumstances,” the
instruction is broad enough to encompass episodes of excessive force
occurring in a custodial setting. Moreover, the instruction takes into con-
sideration factors relevant to determining whether excessive force was
used by correctional officers, including the amount of force used, the
availability of other methods to subdue the plaintiff, the amount of time
the officer had to make her decision, whether the plaintiff posed an imme-
diate threat to the officer, and whether the plaintiff was actively resisting
the officer. ER 11.
Plaintiffs provide no support for their assertion that these factors are
“not particularly relevant” in the custodial context. These factors are taken
from Ninth Circuit Model Jury Instruction 9.22 (2007). The comment to
Model Instruction 9.22 notes that these factors are drawn from the
Supreme Court’s Fourth Amendment precedents Graham v. Connor, 490
HUNTER v. COUNTY OF SACRAMENTO 9591
However, the plaintiffs did properly object to the District
Court’s proposed Monell instruction, to the extent that it did
not go farther and failed to include a separate definition of
practice or custom. In their objections to the District Court’s
instructions, plaintiffs stated that they did “not object to [the
Court’s proposed Monell instruction] as written,” but they
asked that the Court also use the ten instructions quoted in
Part I of this opinion, which elaborate various ways in which
a Monell plaintiff may prove a practice or custom. We find
that the ground for plaintiffs’ objection was made clear in
their proposed instructions, which plaintiffs correctly, if inart-
fully, argued “state the law in the Ninth Circuit accurately,
and in this District.” Id. Under Rule 51, objections to jury
instructions must “stat[e] distinctly the matter objected to and
the grounds for the objection.” Fed. R. Civ. P. 51(c)(1). As
the Supreme Court has noted, “objections to a charge must be
sufficiently specific to bring into focus the precise nature of
the alleged error.” Palmer v. Hoffman, 318 U.S. 109, 119
(1943). In applying Rule 51(c) in Voorhies-Larson, we noted
that a party objecting to a jury instruction may “put the court
on notice by offering alternative instructions that were
denied.” 241 F.3d at 715 (citing Gulliford v. Pierce Cnty., 136
F.3d 1345, 1348-49 (9th Cir. 1998)). Likewise, in our deci-
sion last year in Norwood, we held that a party sufficiently
objected by proposing alternative instructions that “made the
grounds for their position clear, citing relevant authority.” 591
F.3d at 1066. In this case, the plaintiffs proposed their own
jury instructions that defined and explained the practice or
custom prong and referred to several of our leading cases. By
submitting instructions that specifically focused on the prac-
U.S. 386, 397 (1989), and Tennessee v. Garner, 471 U.S. 1 (1985). As this
court has noted, “Graham . . . explicates the standards applicable to a pre-
trial detention excessive force claim in this circuit.” Gibson v. Cnty. of
Washoe, 290 F.3d 1175, 1197 (2002). Thus, the factors in the District
Court’s excessive force instruction were relevant, and plaintiffs have
failed to show that using the instruction containing them was plain error.
9592 HUNTER v. COUNTY OF SACRAMENTO
tice or custom prong of the Monell test, the plaintiffs put the
District Court on notice of the grounds for their objection.
It should be noted that the County’s submission of the defi-
nition of practice or custom contained in Model Instruction
9.4 did not cure plaintiffs’ objection. As will be discussed in
the following section, the County’s definition failed to make
clear to the jury that the plaintiffs could prove that an unoffi-
cial practice or custom of excessive force existed at the Main
Jail by pointing to inaction in the face of repeated instances
of the use of excessive force by Main Jail employees. By con-
trast, the plaintiffs submitted instructions which explicitly
stated that an unconstitutional practice or custom could be
proven through evidence that incidents of excessive force
were not investigated and their perpetrators were not disci-
plined. See, e.g., ER 37 (Instruction No. 11: “Failure to prop-
erly investigate, like failure to discipline employees involved
in incidents of excessive force, is evidence of and supports a
finding excessive force was not only accepted but was cus-
tomary.” (citations omitted)). These very specific proposed
instructions were sufficient to put the District Court on notice
that the plaintiffs considered the County’s proposed definition
of custom or practice, taken from Model Instruction 9.4, to be
incomplete and misleading. Thus, plaintiffs’ pre-trial objec-
tion to the District Court’s proposed Monell instruction was
sufficient under Rule 51.
B.
We now turn to the merits of plaintiffs’ objection to the
District Court’s “custom or practice” instruction. Our jury
instruction decisions have traditionally distinguished between
errors in the “formulation” of a jury instruction, which we
review for abuse of discretion, and a jury instruction’s “mis-
state[ment of] the law,” which we review de novo. Dream
Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 988 (9th Cir.
2009) (internal quotation omitted); see also Dang v. Cross,
422 F.3d 800, 804 (9th Cir. 2005). As our decision in Nor-
HUNTER v. COUNTY OF SACRAMENTO 9593
wood recognized, we engage in de novo review when a party
challenges a “jury instruction as an incomplete, and therefore
incorrect, statement of the law.” 591 F.3d at 1066 (citing
Clem v. Lomeli, 566 F.3d 1177, 1180-81 (9th Cir. 2009);
Dang, 422 F.3d at 804-06).
We have repeatedly held that “ ‘[j]ury instructions must
fairly and adequately cover the issues presented, must cor-
rectly state the law, and must not be misleading.’ ” Dang, 422
F.3d at 804 (quoting White v. Ford Motor Co., 312 F.3d 998,
1012 (9th Cir. 2002)). We have also recognized that a district
court’s “ ‘[u]se of a model jury instruction does not preclude
a finding of error.’ ”Id. at 805 (quoting United States v. War-
ren, 984 F.2d 325, 328 (9th Cir. 1993)). Rather, each party is
“ ‘entitled to an instruction about his or her theory of the case
if it is supported by law and has foundation in the evidence.’ ”
Clem, 566 F.3d at 1181 (quoting Dang, 422 F.3d at 804-05).
However, if the “error in the jury instruction is harmless, it
does not warrant reversal.” Dang, 422 F.3d at 805 (citing
Tritchler v. Cnty. of Lake, 358 F.3d 1150, 1154 (9th Cir.
2004)).
[3] In Monell, the Supreme Court held that municipalities
may be held liable as “persons” under 42 U.S.C. § 1983, but
cautioned that a municipality may not be held liable for the
unconstitutional acts of its employees solely on a respondeat
superior theory. 436 U.S. at 691. Rather, the Supreme Court
has “required a plaintiff seeking to impose liability on a
municipality under § 1983 to identify a municipal ‘policy’ or
‘custom’ that caused the plaintiff’s injury.” Bd. of Cnty.
Comm’rs v. Brown, 520 U.S. 397, 403 (1997) (citing Monell,
436 U.S. at 694; Pembaur v. Cincinnati, 475 U.S. 469, 480-81
(1986); City of Canton v. Harris, 489 U.S. 378, 389 (1989)).
In justifying the imposition of liability for a municipal cus-
tom, the Supreme Court has noted that “an act performed pur-
suant to a ‘custom’ that has not been formally approved by an
appropriate decisionmaker may fairly subject a municipality
to liability on the theory that the relevant practice is so wide-
9594 HUNTER v. COUNTY OF SACRAMENTO
spread as to have the force of law.” Id. at 404 (citing Monell,
436 U.S. at 690-91).
As noted above, the District Court’s initial Monell instruc-
tion required each plaintiff to prove that (1) “one or more of
Defendant’s employees used excessive force against Plaintiff
in violation of the Fourth Amendment”; (2) “that in so doing,
Defendant’s employee or employees acted pursuant to a long-
standing practice or custom of Defendant”; (3) “that Plaintiff
was injured”; and (4) “that Defendant’s longstanding practice
or custom was so closely related to Plaintiff’s injury that it
was the moving force causing Plaintiff’s injury.” ER 14.7
However, the District Court’s initial proposed instruction did
not include a definition of the term “practice or custom.” Both
parties objected to this omission, with the plaintiffs submit-
ting the ten instructions quoted in Part I of this opinion, and
the County submitting the definition of practice or custom
used in Model Instruction 9.4.
The District Court’s final set of jury instructions adopted
the definition taken from Model Instruction 9.4, which defines
practice or custom as follows: “ ‘Practice or custom’ means
any permanent, widespread, well-settled practice or custom
that constitutes a standard operating procedure of the defen-
dant.” ER 11. The series of qualifiers in this definition—
“permanent,” “widespread,” “well-settled,” and “standard
operating procedure”—emphasize that a practice must be per-
vasive and of significant duration.
[4] This definition is certainly consistent with our Monell
decisions, which have recognized that “[l]iability for improper
custom may not be predicated on isolated or sporadic inci-
dents” and that “[t]he custom must be so ‘persistent and wide-
7
Plaintiffs have not challenged the District Court’s formulation of these
four elements of Monell liability, which derive from Ninth Circuit Model
Civil Jury Instruction 9.4 and are consistent with our caselaw. See, e.g.,
Trevino v. Gates, 99 F.3d 911, 918-20 (9th Cir. 1996).
HUNTER v. COUNTY OF SACRAMENTO 9595
spread’ that it constitutes a ‘permanent and well settled city
policy.’ ” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996)
(quoting Monell, 436 U.S. at 691); see also Villegas v. Gilroy
Garlic Festival Ass’n, 541 F.3d 950, 964 (9th Cir. 2008)
(holding that municipal liability may be established “by show-
ing ‘a longstanding practice or custom which constitutes the
standard operating procedure of the local government entity’ ”
(quoting Ulrich v. City & Cnty. of San Francisco, 308 F.3d
968, 984-85 (9th Cir. 2002))); Webb v. Sloan, 330 F.3d 1158,
1164 (9th Cir. 2003); Henry v. Cnty. of Shasta, 132 F.3d 512,
523 (9th Cir. 1997).
[5] While the definition of practice or custom in Model
Instruction 9.4 is consistent with our Monell decisions, it is far
from a complete statement of our caselaw. We have long rec-
ognized that a custom or practice can be “inferred from wide-
spread practices or ‘evidence of repeated constitutional
violations for which the errant municipal officers were not
discharged or reprimanded.’ ” Nadell v. Las Vegas Metro.
Police Dep’t, 268 F.3d 924, 929 (9th Cir. 2001) (quoting Gil-
lette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992), abro-
gated on other grounds as recognized in Beck v. City of
Upland, 527 F.3d 853, 862 n.8 (9th Cir. 2008)); see also
Menotti, 409 F.3d at 1147; McRorie v. Shimoda, 795 F.2d
780, 784 (9th Cir. 1986).8 The plaintiffs submitted an instruc-
8
These decisions recognize that evidence of inaction—specifically, fail-
ure to investigate and discipline employees in the face of widespread con-
stitutional violations—can support an inference that an unconstitutional
custom or practice has been unofficially adopted by a municipality. We
have also recognized that in some circumstances a policy of inaction, such
as a policy of failing to properly train employees, may form the basis for
municipal liability. See Waggy v. Spokane Cnty., 594 F.3d 707, 713 (9th
Cir. 2010); Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249 (9th
Cir. 2010); see also Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011)
(“In limited circumstances, a local government’s decision not to train cer-
tain employees about their legal duty to avoid violating citizens’ rights
may rise to the level of an official government policy for purposes of
§ 1983.”).
9596 HUNTER v. COUNTY OF SACRAMENTO
tion using language taken directly from our decision in Gil-
lette. See ER 36 (Instruction No. 5: “Plaintiff may also
attempt to prove the existence of a custom or informal policy
with evidence of repeated constitutional violations for which
the errant municipal officials were not discharged or repri-
manded.” (citing Gillette, 979 F.2d at 1349; McRorie, 795
F.2d at 784) (emphasis added)). The plaintiffs also submitted
a similar instruction that an unconstitutional custom could be
inferred from the failure to investigate repeated instances of
unconstitutional conduct. See ER 37 (Instruction No. 11:
“Failure to properly investigate, like failure to discipline
employees involved in incidents of excessive force, is evi-
dence of and supports a finding excessive force was not only
accepted but was customary.” (citations omitted)). However,
the District Court, without explanation, declined to use either
of these instructions.9
[6] Plaintiffs had good reason to submit these instructions,
because the theory they explain was key to their case. Their
expert, Lt. Twomey, found that officials in the Main Jail
repeatedly failed to investigate incidents of excessive force
9
Our Monell decisions have also recognized that a “municipality may be
liable for its custom ‘irrespective of whether official policy-makers had
actual knowledge of the practice at issue.’ ” Navarro v. Black, 72 F.3d
712, 714-15 (9th Cir. 1995) (quoting Thompson v. City of Los Angeles,
885 F.2d 1439, 1444 (9th Cir. 1989)). The plaintiffs submitted an instruc-
tion regarding this principle that again used language from one of our
decisions. See ER 37 (Instruction No. 9: “Liability for an established cus-
tom can be imposed irrespective of whether official policy makers had
actual knowledge of the practice at issue.” (citing Thompson, 885 F.2d at
1443-44; Anthony v. Cnty. of Sacramento, 898 F. Supp. 1435, 1452 (E.D.
Cal. 1995)) (emphasis added)). The District Court declined to use this
instruction without explanation. See Clem, 566 F.3d at 1181 (“A district
court . . . commits error when it rejects proposed jury instructions that are
properly supported by the law and the evidence.”). However, because we
reverse the judgment below based upon the instructions regarding evi-
dence of failures to investigate and discipline, we need not determine
whether omission of the actual knowledge instruction was erroneous, and,
if so, whether the omission prejudiced the plaintiffs.
HUNTER v. COUNTY OF SACRAMENTO 9597
and to take disciplinary action against guards who used such
force, despite the existence of an official policy prohibiting
the use of excessive force.10 These instructions were vital to
plaintiffs’ case, because the legal principle in plaintiffs’
instructions—that evidence of a recurring failure to investi-
gate and discipline municipal officers for constitutional viola-
tions can help establish the existence of an unconstitutional
practice or custom—cannot be readily deduced from simply
reading the definition of practice or custom in Model Instruc-
tion 9.4. See Model Instruction 9.4 (“ ‘Practice or custom’
means any permanent, widespread, well-settled practice or
custom that constitutes a standard operating procedure of the
defendant.”); see also Norwood, 591 F.3d at 1067 (observing
that “juries are not clairvoyant” and will not know to follow
a particular legal principle “unless they are told to do so”).
Accordingly, in the context of this case the definition of prac-
tice or custom in Model Instruction 9.4 was “an incomplete,
and therefore incorrect, statement of the law.” Norwood, 591
F.3d at 1066; see also Fikes v. Cleghorn, 47 F.3d 1011, 1013
(9th Cir. 1995) (holding that jury “instructions must allow the
jury to determine the issues presented intelligently”). Further,
by stating that a practice or custom must “constitute[ ] a stan-
dard operating procedure of the defendant,” Model Instruction
9.4 may well have encouraged the jury to disregard evidence
that the County failed to investigate and punish the use of
excessive force. We do not commonly speak of a failure to act
as a “standard operating procedure.” See Dang, 422 F.3d at
804 (noting that we have “stressed that jury instructions . . .
must not be misleading” (internal quotation and alteration
omitted)). For these reasons, the District Court’s decision not
to use the plaintiff’s proposed instructions was in error.11
10
It should be noted that plaintiffs’ case did not rest solely on evidence
of acts of omission. As described above in Part I, Lt. Twomey also pro-
vided evidence that, if credited, demonstrated that the use of excessive
force at the Main Jail was widespread and persisted over several years.
11
We note that some of the instructions submitted by plaintiff, such as
Instruction No. 11, could be considered argumentative, and that several of
9598 HUNTER v. COUNTY OF SACRAMENTO
We also conclude that this error cannot be considered
harmless. “We presume prejudice where civil trial error is
concerned and the burden shifts to the defendant to demon-
strate that it is more probable than not that the jury would
have reached the same verdict had it been properly instruct-
ed.” Dang, 422 F.3d at 811 (internal quotations and alter-
ations omitted).
Plaintiffs hoped to establish a “practice or custom” suffi-
cient to create Monell liability despite the fact that the County
had submitted evidence that the Main Jail had a formal writ-
ten policy barring the use of excessive force that was nomi-
nally in place at the time of the events in question in this case.
ER 20. If credited, Lt. Twomey’s testimony would have
established that there were repeated constitutional violations
at the Main Jail “for which the errant municipal officials were
not discharged or reprimanded,” Gillette, 979 F.2d at 1349,
and that, in turn, could have supported an inference that an
informal but widespread custom of using excessive force
existed at the Jail. On the record before us, we find that such
evidence might well have swayed the jury to reach a different
result.
[7] Without the plaintiffs’ proposed instructions, however,
the jury would not have known whether to consider the evi-
dence that numerous instances of excessive force at the Main
Jail were never investigated and that their perpetrators were
plaintiffs’ instructions are duplicative. However, “the fact that the pro-
posed instruction was misleading does not alone permit the district judge
to summarily refuse to give any instruction on the topic.” Merrick v. Paul
Revere Life Ins. Co., 500 F.3d 1007, 1017 (9th Cir. 2007). If a party’s pro-
posed instruction has brought an “issue . . . to the district court’s atten-
tion,” the court commits error if it “omit[s] the instruction altogether,
rather than modifying it to correct the perceived deficiency.” Norwood,
591 F.3d at 1067. Here, the relevant instructions on practice or custom,
which included citations to our caselaw, were sufficiently clear to bring
the issue to the court’s attention.
HUNTER v. COUNTY OF SACRAMENTO 9599
not punished. Indeed, as discussed above, there is some risk
that the jury, relying solely upon the definition of practice or
custom in Model Instruction 9.4, would have thought it
improper to consider such evidence at all. Consequently, we
cannot conclude that it is more probable than not that the
instructional error was harmless.
III
[8] We hold that the District Court prejudicially erred in
refusing to instruct the jury that, for purposes of proving a
Monell claim, a custom or practice can be supported by evi-
dence of repeated constitutional violations which went unin-
vestigated and for which the errant municipal officers went
unpunished. We therefore vacate the judgment and remand
for a new trial.
VACATED AND REMANDED.