If you find that such an official custom 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
Even in the absence of an official policy, a municipality may incur liability if an official custom causes a constitutional tort. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).73 “Custom... can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well settled and permanent as virtually to constitute law.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990); see also Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404 (1997) (“[A]n act performed pursuant 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 widespread as to have the force of law.”).As these statements suggest, evidence of a single incident without more will not suffice to establish the existence of a custom: “A single incident by a lower level employee acting under color of law... does not suffice to establish either an official policy or a custom. However, if custom can be established by other means, a single application of the custom suffices to establish that it was done pursuant to official policy and thus to establish the agency's liability.” Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989) (citing Oklahoma City v. Tuttle, 471 U.S. 808 (1985) (plurality opinion)). For example, plaintiff can present evidence of a pattern of similar incidents and inadequate responses to those incidents in order to demonstrate custom through municipal acquiescence. See Beck, 89 F.3d at 972 (“These complaints include the Debold incident, which, although it occurred after Beck's experience, may have evidentiary value for a jury's consideration whether the City and policymakers had a pattern of tacitly approving the use of excessive force.”).
The weight of Third Circuit caselaw indicates that the plaintiff must make some showing that a policymaking official knew of the custom and acquiesced in it.74 Language in Jett v. Dallas Independent School District, 491 U.S. 701 (1989), could be read to contemplate such a requirement, though the Jett Court did not have occasion to consider that issue in detail.75 In a number of subsequent cases, the Court of Appeals has read Jett to require knowledge and acquiescence. In Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990), the Court of Appeals affirmed the grant of j.n.o.v. in favor of the City on the plaintiffs’ Section 1983 claims of sexual harassment by their coworkers and supervisors. The court stressed that to establish municipal liability “it is incumbent upon a plaintiff to show that a policymaker is responsible either for the policy or, through acquiescence, for the custom.” Id. at 1480. Thus, “given the jury verdict in favor of [Police Commissioner] Tucker, the lowest level policymaker implicated,” j.n.o.v. for the City was warranted. Id. at 1480; see also Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007) (citing Andrews with approval). In Simmons v. City of Philadelphia, 947 F.2d 1042 (3d Cir. 1991), a fractured court affirmed a judgment in favor of the mother of a man who committed suicide while detained in a city jail. See id. at 1048. Judge Becker, announcing the judgment of the court, viewed Jett as holding “that even when a plaintiff alleges that a municipal custom or practice, as opposed to a municipal policy, worked a constitutional deprivation, the plaintiff must both identify officials with ultimate policymaking authority in the area in question and adduce scienter like evidence – in this case of acquiescence – with respect to them.” Simmons, 947 F.2d at 1062 (opinion of Becker, J.). Chief Judge Sloviter wrote separately to stress that officials’ reckless disregard of conditions of which they should have known should suffice to meet the standard, see id. at 1089-91 (Sloviter, C.J., concurring in part and in the judgment), but she did not appear to question the view that some sort of knowledge and acquiescence was required. Citing Andrews and Simmons, the court in Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995), held that the plaintiffs “must show that a policymaker for the Township authorized policies that led to the violations or permitted practices that were so permanent and well settled as to establish acquiescence,” id. at 1191.76 See also Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996) (“[A] prerequisite to establishing [municipal] liability... is a showing that a policymaker was responsible either for the policy or, through acquiescence, for the custom.”).
Though it thus appears that a showing of knowledge and acquiescence is required, a number of cases suggest that actual knowledge need not be proven.77 Rather, some showing of constructive knowledge may suffice; this view is reflected in the first bracketed sentence in Instruction 4.6.6. For example, the court seemed to approve a constructive-knowledge standard in Bielevicz v. Dubinon, 915 F.2d 845 (3d Cir. 1990). Citing Andrews and Jett, the court stated that the “plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well settled custom.” Bielevicz, 914 F.2d at 850.78 But the Bielevicz court took care to note that “[t]his does not mean... that the responsible decisionmaker must be specifically identified by the plaintiff's evidence. Practices so permanent and well settled as to have the force of law [are] ascribable to municipal decisionmakers.” Id. (internal quotation marks omitted).79 The Bielevicz court then proceeded to discuss ways of showing that the municipal custom caused the constitutional violation, and explained that policymakers’ failure to respond appropriately to known past violations could provide the requisite evidence of causation: “If the City is shown to have tolerated known misconduct by police officers, the issue whether the City's inaction contributed to the individual officers' decision to arrest the plaintiffs unlawfully in this instance is a question of fact for the jury.” Id. at 851. In Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996), the court stated that custom can be shown when government officials’ practices are “so permanent and well settled as to virtually constitute law,” id. (internal quotation marks omitted), and then continued: “Custom... may also be established by evidence of knowledge and acquiescence.” Id.80 In holding that the plaintiffs were entitled to reach a jury on their claims, the Beck court focused on evidence “that the Chief of Police of Pittsburgh and his department knew, or should have known, of Officer Williams's violent behavior in arresting citizens,” id. at 973 – suggesting that the Beck court applied a constructive-knowledge test. Likewise, in Berg v. County of Allegheny, 219 F.3d 261 (2000), the court focused on whether municipal policymakers had either actual or constructive knowledge of the practice for issuing warrants. See id. at 276 (“We believe it is a more than reasonable inference to suppose that a system responsible for issuing 6,000 warrants a year would be the product of a decision maker's action or acquiescence.”). Similarly, in Estate of Roman v. Newark, 914 F.3d 789 (3d Cir. 2019), the court specifically stated that while the plaintiff must demonstrate that the city had knowledge of similar unlawful conduct in the past, he “does not need to identify a responsible decisionmaker in his pleadings.” Id. at 798. The court relied in part on a consent decree between the Department of Justice and Newark in holding that a complaint alleging a custom of unconstitutional arrests was sufficient, where violations were widespread, and the Police Department was aware of them but rarely acted on citizen complaints. Id. at 799.
The Berg court stated, however, that where the custom in question does not itself constitute the constitutional violation – but rather is alleged to have led to the violation – the plaintiff must additionally meet the deliberate-indifference test set forth in City of Canton, Ohio v. Harris, 489 U.S. 378 (1989):81 “If... the policy or custom does not facially violate federal law, causation can be established only by ‘demonstrat[ing] that the municipal action was taken with “deliberate indifference” as to its known or obvious consequences.’” Berg, 219 F.3d at 276 (quoting Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 407 (1997)); see also Natale v. Camden County Correctional Facility 318 F.3d 575, 585 (3d Cir. 2003) (finding a jury question on municipal liability because “the failure to establish a policy to address the immediate medication needs of inmates with serious medical conditions creates a risk that is sufficiently obvious as to constitute deliberate indifference to those inmates' medical needs”). Where a finding of deliberate indifference is required, the first bracketed sentence in Instruction 4.6.6 should be altered accordingly. Cases applying a deliberate-indifference standard for municipal liability often involve allegations of failure to adequately train, supervise or screen, see, e.g., Montgomery v. De Simone, 159 F.3d 120, 126-26 (3d Cir. 1998) (“[A] municipality's failure to train police officers only gives rise to a constitutional violation when that failure amounts to deliberate indifference to the rights of persons with whom the police come into contact.”); Estate of Roman v. Newark, 914 F.3d 789, 799 (3d Cir. 2019) (holding that failure to train, supervise, and discipline claims were also adequately pled). In cases where plaintiff seeks to establish municipal liability for failure to adequately train or supervise a municipal employee, the more specific standards set forth in Instruction 4.6.7 should be employed; Instruction 4.6.8 should be used when the plaintiff asserts municipal liability for failure to screen.
