dissenting.
The issue in this case is not whether Henry’s treatment at the Shasta County Jail was awful: it was awful. The issue is whether the County and Sheriff Pope (or the arresting officers) had anything to do with it. There is no evidence they did. For this reason I part company with the majority opinion.
I
Liberally construed, Henry contends that the County and Sheriff Pope were responsible for his continuing illegal arrest and incarceration once they accepted him into their custody.1 It is well settled that the County and the Sheriff in his official capacity can be held liable under § 1983 only if they deprived Henry of a constitutional right as a result of an official policy or custom. Monell v. Department of Soc. Servs. of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
As I piece it together, Henry posits four unconstitutional policies: a policy not to have magistrates available at night; a policy to delay magistrate appearances overnight; a policy not to assist an arrestee in contacting a magistrate; and a policy to delay magistrate appearances, and to retaliate against detainees who demand to see a magistrate, by incarcerating them in the safety cell and coercing their compliance with booking procedures. While there is some evidence of a policy that magistrates are not available until the next business day following an arrest at night, it was not constitutionally unreasonable for Henry to be detained overnight. See County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 1669-70, 114 L.Ed.2d 49 (1991). Beyond this, there is no evidence that the County or Pope had adopted a formal policy of delaying appearances or retaliating in any way against those who asked to see a magistrate, and there is no evidence affirmatively linking Henry’s treatment by individual jailers to an official County policy or custom, whether effected by “lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38; see also City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989) (“[0]ur first inquiry in any case,alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.”).
Absent a formal government policy, Henry must show a “longstanding practice or custom which constitutes the standard operating procedure of the local government entity,” Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992) (internal quotations omitted). Henry’s only submission consists of declarations from two other persons who were arrested after he was, on July 28, 1993 and in February or March, 1994, and were also kept in a jail safety cell when they refused to comply with booking procedures and demanded to see a magistrate in connection with traffic-related infractions. However, there is no evidence that Shasta County or Pope knew about Henry’s treatment at the jail such that it could reasonably be inferred *524from the later incidents that they had somehow ratified what happened to Henry, or that there was “a widespread practice” that was “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law,” City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 926, 99 L.Ed.2d 107 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142 (1970)), that caused Henry to be treated as he was. Pope’s declaration to the contrary is uncontradicted.
“Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon 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) (noting that two incidents are not sufficient to establish custom, Meehan v. County of Los Angeles, 856 F.2d 102 (9th Cir.1988)), cert. denied, — U.S. -, 117 S.Ct. 1249, 137 L.Ed.2d 330 (1997). Nor may a supervising policymaker (which I am willing to assume for this purpose that Pope was, although Henry provides no facts and cites no law indicating that this is so2) be held liable without participating in a particular decision or ratifying it, unless “a series of decisions by a subordinate official manifested a ‘custom or usage’ of which the supervisor must have been aware.” Praprotnik, 485 U.S. at 130, 108 S.Ct. at 928. Nothing of the sort has been shown here. Therefore, even if individual jailers in these three instances did place the detainees in a safety cell for retaliatory and coercive purposes, violating their First, Fourth, and Fourteenth Amendment rights, neither Shasta County nor Pope can be liable under § 1983. Otherwise, Shasta County would be liable “solely because it employs a tortfeasor-or, in other words ... on a re-spondeat superior theory.” Monell, 436 U.S. at 691, 98 S.Ct. at 2036 (emphasis original).
None of the cases upon which the majority relies to support its theory of post-event liability has anything to do with this case, where there is no evidence that the policymaker (assuming that’s what Pope is) or the County knew about the Henry incident, had any custom or policy sanctioning, encouraging or permitting the objectionable treatment about which he complains, or expressed any opinion about it that would raise a triable issue of fact about what official policy was.3
In Larez v. City of Los Angeles, 946 F.2d 630, 645 (9th Cir.1991), Gates expressed an opinion after the incident (but during the trial) that showed what he thought about the use of force by law enforcement officials; there is no evidence about Pope that is remotely comparable. McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir.1986), came up on dismissal of a pro se complaint — not summary judgment, as here — and the plaintiff had alleged that his injury was inflicted under orders. Here, Henry failed to come up with any evidence that tended to show that what happened to him at the jail was ordered by Pope or the County. In Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.1985), there was no dispute that the Chief of Police knew about the incident; indeed, he’d been advised the minute trouble began. There is no similar evidence that Pope (or anyone else outside the jail) knew about the incident (or any past incident of a similar nature), and failed to respond. The question in Bordanaro v. McLeod, 871 F.2d 1151 (1st Cir.1989), *525was whether the admission of post-event evidence was an abuse of discretion; unlike the record in this case, there was evidence that the Chief had a report review process in place and must therefore have known about the incident. Also different from Black v. Stephens, 662 F.2d 181 (3d Cir.1981), there’s no issue in this case about instituting adequate investigatory procedures. And in Jones v. City of Chicago, 787 F.2d 200 (7th Cir.1986), the City obviously knew about the prior complaint as it had investigated it, whereas there is no evidence at all that Pope or Shasta knew about the Henry complaint. That makes all the difference in my view, for in the absence of any evidence that Pope or Shasta knew (or should have known because of procedures in place) about Henry’s experience at the jail, either before it happened (because it was a practice they knew about) or while it was happening (because someone told them) or after it happened (because they knew about the complaint but did nothing to change things at the jail), it is not reasonable to infer backwards from the fact that a similar incident allegedly happened months later that either Pope or Shasta had a custom or policy that caused, or condoned, or was connected in any way with, Henry’s injury.
I have no quarrel with the proposition that some post-event evidence may he admissible on the custom and policy of a police department to show ratification or condemnation of the acts of others, but post-event evidence has no probative value on the prior existence of a custom or policy that caused constitutional injury to Henry in the absence of some other evidence showing that the policymaker was somehow aware of the incident yet did nothing to end it — or said something to embrace it. It is only the fact of inaction (or affirmation) in the face of knowledge that gives rise to an inference that the policy that was left in place was in place all along.
Here, there is absolutely nothing to show that Pope or Shasta knew about the incident, or Henry’s suit, before the Burns incident in February or March of 1994.4 I would, therefore, affirm judgment for Pope and Shasta County.
II
I agree with the majority that the officers’ conduct was objectively valid under California law, and that the district court incorrectly stopped its analysis once it concluded that Henry was taken into custody and transported to the Shasta County Jail pursuant to state law. Henry’s challenge to the constitutionality of the statutes as applied requires the court to consider whether, in addition to the propriety of their conduct under state law, Chaidez and Smith violated his federal constitutional rights. However, I disagree that we need to remand on this account.
Chaidez and Smith did not violate any constitutional right with respect to the arrest and decision to take Henry into custody, because he undisputably did commit infractions, asked to be taken to a magistrate, and did not otherwise promise to appear. This leaves the question whether Henry’s request to be taken before a magistrate and his refusal to sign the Notice to Appear justified the extent of detention based solely on Chai-dez’s assessment of probable cause. (As there is no evidence that the CHP officers had anything to do with Henry’s treatment at the jail, except driving him to and from the hospital, or that they had any knowledge about how he would be handled, or responsibility for the decisions made at the jail by employees of the Shasta County Sheriffs Department, their liability in this case cannot depend on the constitutionality of the nature of Henry’s detention.) Under the Supreme *526Court’s opinion in County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), and ours in Hallstrom v. City of Garden City, 991 F.2d 1473 (9th Cir.1993), detention at a jail facility from 9:55 p.m. until a magistrate was available at 1:30 p.m. the following day was not unreasonable.
Arresting officers have a constitutional duty to ensure that arrestees are taken before a judicial officer “promptly after arrest.” Gerstein v. Pugh, 420 U.S. 103, 125, 95 S.Ct. 854, 869, 43 L.Ed.2d 54 (1975). McLaughlin, in turn, indicates that a judicial determination of probable cause within forty-eight hours of arrest will generally comply with Gerstein. McLaughlin, 500 U.S. at 56, 111 S.Ct. at 1669-70; Hallstrom, 991 F.2d at 1480. When a hearing does take place within a forty-eight hour period (as it did in Henry’s case),- the person arrested has the burden of proving that his probable cause determination was delayed unreasonably. As the Court explained in McLaughlin:
Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay’s sake. In evaluating whether the d'elay in a particular ease is unreasonable, however, courts must allow a substantial degree of flexibility. Courts cannot ignore the often unavoidable delays in transporting arrested persons from one facility to' another, handling, late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities.
500 U.S. at 56-57, 111 S.Ct. at 1670. Henry adduced no evidence of unreasonable delay by Chaidez and Smith apart from the fact that he was not taken to a judicial officer until 1:30 in the afternoon following his 9:55 p.m. arrest. However, this is not prolonged detention beyond the mandate of McLaughlin, and is not unreasonable given the late-night arrest. Henry had his chance to overcome summary judgment on the point, but didn’t. Therefore, I would affirm as to Chai-dez and Smith.
. Actually, Henry's opening brief makes no argument at all about the liability of Shasta and Sheriff Pope. The issue should, therefore, be deemed abandoned. See, e.g., Officers for Justice v. Civil Serv. Comm’n, 979 F.2d 721, 726 (9th Cir.1992). In his reply brief, Henry does argue that the county and the Sheriff have a policy of delaying the taking of arrestees to the magistrate for 14 hours when the charge is an infraction.
. See Alexander v. City and County of San Francisco, 29 F.3d 1355, 1368 (9th Cir.1994) (rejecting § 1983 claim where plaintiff cited no facts nor law showing that a police commander is an authorized decisionmaker for the City and County), cert. denied, 513 U.S. 1083, 115 S.Ct. 735, 130 L.Ed.2d 638 (1995).
. Indeed, Pope's declaration makes it clear that official policy was to comply with the mandates of the Supreme Court in County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Pope also affirms that he knew of no custom, practice or procedure whereby persons arrested for infractions are denied their right to be taken before the Magistrate at the earliest opportunity; that it is official policy to comply fully with California law regulating when strip searches of arrestees are permitted, and that he knows of no custom, practice or procedure (or of any instance) whereby jail personnel conduct a strip search of a detainee arrested for an infraction; that there is no custom, practice or procedure whereby an arrestee is denied his right to make calls or isn’t offered the opportunity to do so; and that he does not sanction or permit arrestees to be threatened, abused or in any way endangered by jail personnel. These statements are uncontradicted.
. Pope may have known about the suit, but there's no evidence that he did know about it before the Bums incident. Henry was arrested May 19, 1993; the May incident occurred July 28, 1993 (and there's no evidence Pope knew about it, either); Henry's complaint in this action was filed December 30, 1993; Shasta and Pope filed an answer March 3, 1994; and the Bums incident was "February or March of 1994.” Nor is there evidence to show what response, if any, Pope made to Henry’s complaint after it was served, or even that there was time to do anything to avert a similar (Burns) incident from happening between the time of service and following investigation. Far from leading to a reasonable inference of ratification, it is patently unreasonable to conjure a triable issue of fact on this record.