Thus, when [governing body] or [policymaking official] make a deliberate choice to follow a course of action, that choice represents an official policy. Through such a policy, the [governing body] or the [policymaking official] may cause a violation of a federal right by:
• authorizing the violation, or
• agreeing to a subordinate’s decision to engage in the violation.
I instruct you that [name(s) of official(s) and/or governmental bodies] are policymakers whose deliberate choices represent official policy. If you find that such an official policy was the cause of and the moving force behind the violation of [plaintiff’s] [specify right], then you have found that [municipality] caused that violation.
COMMENT
A deliberate choice by an individual government official constitutes government policy if the official has been granted final decision-making authority concerning the relevant area or issue. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996); see also LaVerdure v. County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003) (“Even though Marino himself lacked final policymaking authority that could bind the County, LaVerdure could have demonstrated that the Board delegated him the authority to speak for the Board or acquiesced in his statements.”). In this context, “municipal liability under § 1983 attaches where – and only where – a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion); see also Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996) (“In order to ascertain who is a policymaker, ‘a court must determine which official has final, unreviewable discretion to make a decision or take action. ’”) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990)). “[W]hether a particular official has ‘final policymaking authority’ is a question of state law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion); see also McMillian v. Monroe County, Ala., 520 U.S. 781, 786 (1997) (“This is not to say that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official's functions under relevant state law.”).70 “As with other questions of state law relevant to the application of federal law, the identification of those officials whose decisions represent the official policy of the local governmental unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury.” Jett v. Dallas Independent School Dist., 491 U.S. 701, 737 (1989).[T]he trial judge must identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue. Once those officials who have the power to make official policy on a particular issue have been identified, it is for the jury to determine whether their decisions have caused the deprivation of rights at issue by policies which affirmatively command that it occur... , or by acquiescence in a longstanding practice or custom which constitutes the “standard operating procedure” of the local governmental entity.Id. Not only must the official have final policymaking authority, the official must be considered to be acting as a municipal official rather than a state official in order for municipal liability to attach. See McMillian, 520 U.S. at 793 (holding that “Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties”).
Instruction 4.6.5 notes that a policymaker may cause a violation of a federal right by directing that the violation occur, authorizing the violation, or agreeing to a subordinate’s decision to engage in the violation. With respect to the third option – agreement to a subordinate’s decision – the relevant agreement can sometimes occur after the fact. Thus, for example, the plurality in Praprotnik observed that “when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion); see also Brennan v. Norton, 350 F.3d 399, 427-28 (3d Cir. 2003) (citing Praprotnik); LaVerdure v. County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003) (“Even though Marino himself lacked final policymaking authority that could bind the County, LaVerdure could have demonstrated that the Board delegated him the authority to speak for the Board or acquiesced in his statements.”); Andrews v. City of Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990) (“The second means of holding the municipality liable is if Tucker knowingly acquiesced to the decisions made at AID.”). In an appropriate case, Instruction 4.6.5 may be modified to refer to a policymaker’s “agreeing after the fact to a subordinate’s decision to engage in the violation.”
