WPI 341.02 Civil Rights—Municipal and Local Government Liability—Failure to Train, Supervise, o...

When liability of a government entity is predicated upon an alleged failure to adequately train, supervise, or instruct employees, use this instruction along with WPI 341.01 (Civil Rights—Municipal and Local Government Liability—General Introductory Instruction) in an appropriate case.

Use this instruction with WPI 341.04 (Civil Rights—Failure to Train or Inadequate Training—Municipal Liability—“Deliberate Indifference”—Definition) and WPI 21.01 (Meaning of Burden of Proof—Preponderance of Evidence).

Regarding the bracketed word “proximately,” see the detailed discussion of causation issues found in WPI 340.06 (Civil Rights—Causation—Comment Only). Instructions on causation must be carefully tailored to the specific case. See also WPI 340.04 (Civil Rights—“Subjects” and “Causes to be Subjected”—Definition), WPI 343.02 (Conditions of Confinement—Eighth Amendment—Deliberate Indifference—General Conditions of Confinement), and WPI 343.04, (Conditions of Confinement—Eighth Amendment—Deliberate Indifference—Medical), and the Notes on Use and Comments to these instructions.

Use the bracketed word “caused” when the plaintiff claims that the municipality's action or inaction directly caused the deprivation. Use the bracketed phrase “[a] [the] moving force that caused” when the plaintiff claims that the municipality's action or inaction indirectly caused the deprivation. See the Comment below regarding whether to use “a” or “the” with the “moving force” language.

This instruction was revised for this edition for clarity and to add the “moving force” standard of causation. City of Canton v. Harris, 489 U.S. 378, 387–390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). The Supreme Court has used the phrase “the moving force” in its holdings on this standard of causation. See, e.g., City of Canton v. Harris, 489 U.S. at 388–89; Connick v. Thompson, 563 U.S. 51, 59–61, 59 n.5, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (emphasis added). However, various circuit courts have approved “a moving force” language in jury instructions on this issue (emphasis added). Williams v. Paint Valley Local Sch. Dist., 400 F.3d 360, 369–70 (6th Cir. 2005); McGautha v. Jackson County, Mo., Collections Dept., 36 F.3d 53, 56–57 (8th Cir. 1994); Bordanaro v. McLeod, 871 F.2d 1151, 1165–66 (1st Cir. 1989).

The Tenth Circuit has approved the use of “the moving force” in a jury instruction on this issue (emphasis added). D.T. v. Independent Sch. Dist. No. 16, 894 F.2d 1176, 1185 (10th Cir. 1990). And in Castro v. County of Los Angeles, 833 F.3d 1060, 1073–74 (9th Cir. 2016), cert. denied, 137 S.Ct. 831 (2017), the Ninth Circuit, sitting en banc, approved an instruction that required the plaintiff to prove that “the [entity defendants'] longstanding practice or custom caused harm to plaintiff.” The instruction further provided that “[p]laintiff must establish an affirmative link between the practice or custom and the particular constitutional violation at issue.”

In Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 967–68, 954 P.3d 250 (1998), the Washington Supreme Court cited with approval the moving force standard of causation and the definition of moving force adopted by the Ninth Circuit in Bateson v. Geisse, 857 F.2d 1300, 1303–04 (9th Cir. 1988). See also Sandoval v. Las Vegas Metropolitan Police Dept., 756 F.3d 1154, 1167–68 (9th Cir. 2014), cert. denied, 135 S.Ct. 1401 (2015) (to impose liability on a local government under § 1983, the plaintiff must prove that an action pursuant to official municipal policy caused the injury or that inadequate training or supervision was the moving force behind the deprivation).

Under the moving force standard, “the requisite causal connection can be established not only by some kind of direct personal participation in the deprivation but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict constitutional injury.” Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 967–68, 954 P.3d 250 (1998) (citations omitted). In an appropriate case, it may be helpful to provide this definition of moving force to the jury by modifying this instruction.

Liability exists “only where the failure to train amounts to deliberate indifference to the rights of persons with whom police come in contact.” City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Although similar, the analysis of a failure-to-train claim is distinct from the analysis of a claim alleging that the defendant failed to properly screen a job applicant (and the applicant, after being hired, allegedly caused a violation of the plaintiff's federal rights). Bryan Co. Comm'rs v. Brown, 520 U.S. 397, 409–15, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); see also United States Court of Appeals for the Third Circuit, Model Civil Instruction 4.6.8 and Comment (2016 ed.).

A municipality's continuing failure to remedy known unconstitutional conduct of its employees is the type of informal policy or custom that is amenable to suit under Section 1983. See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A policy or custom may be found in the failure of an official to take remedial steps after the alleged civil rights violations. Larez v. City of Los Angeles, 946 F.2d 630, 647 (9th Cir. 1991) (police chief would be liable if “it was almost impossible for a police officer to suffer discipline as a result of a complaint lodged by a citizen”); McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) (custom inferred from failure to reprimand or discharge); Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985) (lack of reprimand or discharge of offending officers evidence of disposition of policymaker).

For a discussion of deliberate indifference, see the Comment to WPI 341.04 (Civil Rights—Failure to Train or Inadequate Training—Municipal Liability—“Deliberate Indifference”—Definition).

The Supreme Court has “left open the possibility that, ‘in a narrow range of circumstances,’ a pattern of similar violations might not be necessary to show deliberate indifference.” Connick v. Thompson, 563 U.S. 51, 63–64, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011), quoting Board of Comm'rs of Bryan Cty. v. Brown, 520 U.S.397, 403, 117 S.Ct. 1382, 137 L.Ed. 2d 626 (1997). See also Flores v. County of Los Angeles, 758 F.3d 1154 (9th Cir. 2014). Several circuit courts of appeals have held that when the circumstances made it obvious that training was needed, that plaintiff was not required to establish a pattern of previous violations. See Gregory v. City of Louisville, 444 F.3d 725, 753–54 (6th Cir. 2006); Young v. City of Providence, 404 F.3d 4, 28–29 (1st Cir. 2005); Allen v. Muskogee, 119 F.3d 837, 844–45 (10th Cir. 1997); and Brown v. Bryan County, 219 F.3d 450, 458–65 (5th Cir. 2000). For a more detailed discussion, see the Comment to WPI 341.04 (Civil Rights—Failure to Train or Inadequate Training—Municipal Liability—“Deliberate Indifference”—Definition). In this regard, the instruction does not include language that requires a pattern of previous violations, with this issue being addressed in the “deliberate indifference” instruction, WPI 341.04.

For a discussion of causation issues, see the Comments to the following instructions: WPI 340.04 (Civil Rights—“Subjects” and “Causes to be Subjected”—Definition); WPI 340.06 (Civil Rights—Causation—Comment Only); and WPI 341.01 (Civil Rights—Municipal and Local Government Liability—General Introductory Instruction).