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9. Civil Rights Action—42 U.S.C. § 1983

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Introductory Comment   

This chapter focuses on 42 U.S.C. § 1983, which provides:  

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.  For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.   

            This chapter is organized to provide separate “elements” instructions for 42 U.S.C. § 1983 claims against individuals (Instructions 9.3–9.4) and against local governing bodies (Instructions 9.5–9.8) because there are different legal standards establishing liability against these two types of defendants.   Instructions 9.9–9.33 provide instructions to establish the deprivation of particular constitutional rights.  An elements instruction should be used only in conjunction with a “particular rights” instruction appropriate to the facts of the case at hand.  

Elements Instructions

Type of Claim


Instruction No.

Against Individuals

Individual Capacity


Supervisory Defendant in Individual Capacity


Against Local Governing Body

Based on Official Policy, Practice, or Custom


Based on Act of Final Policymaker


Based on Ratification


Based on Policy that Fails to Prevent Violations of Law or Policy of Failure to Train


            The chart below identifies the instructions for violations of particular federal rights to be used in conjunction with an elements instruction. “Where a particular amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.’”  Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); Kirkpatrick v. Cnty of Washoe, 843 F.3d 784, 788 n.2 (9th Cir. 2016).  When necessary, these instructions include right-specific mental states because § 1983 itself “contains no independent state-of-mind requirement” apart from what is necessary to state a violation of the underlying right.  Daniels v. Williams, 474 U.S. 327, 328 (1986).  

Particular Rights Instructions

Type of Claim by Source


Instruction No.

First Amendment

Public Employee Speech



“Citizen” Plaintiff


Fourth Amendment

Unreasonable Search





Exception to Warrant Requirement


Search Incident to Arrest


9.14 (vehicle)



Exigent Circumstances


Emergency Aid


Judicial Deception


Fourth Amendment

Unreasonable Seizure of Property



Exception to Warrant Requirement


Fourth Amendment

Unreasonable Seizure of Person



Exception to Warrant Requirement –

Terry v. Ohio

9.21 (stop)

9.22 (frisk)

Probable Cause Arrest


Detention During Execution of Search Warrant


Excessive Force


Eighth Amendment

Convicted Prisoner’s Claim of Excessive Force


Convicted Prisoner’s Claim of Sexual Assault


Convicted Prisoner’s Claim re Conditions of Confinement/Medical Care   


Convicted Prisoner’s Claim of Failure to Protect


Fourteenth Amendment

Pretrial Detainee’s Claim of Excessive Force


Pretrial Detainee’s Claim re Conditions of Confinement/Medical Care


Pretrial Detainee’s Claim of Failure to Protect


Interference With Parent/Child Relationship


Deliberate Fabrication of Evidence


Deliberate or Reckless Suppression of Evidence


State-Created Danger


 Person Subject to § 1983 Liability  

            It is well settled that a “person” subject to liability can be an individual sued in an individual capacity (see Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc)) or in an official capacity (see Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013)).  A “person” subject to liability can also be a local governing body (see Waggy v. Spokane County, 594 F.3d 707, 713 (9th Cir. 2010)).  

Local Governing Body Liability  

            A local governing body is not liable under § 1983 “unless action pursuant to official municipal policy of some nature caused a constitutional tort.”  Monell v. Dep’t of Social Servs. of City of N.Y., 436 U.S. 658, 691 (1978).  But see Instruction 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof) (addressing ratification and causation).  “[A] municipality cannot be held liable under §1983 on a respondeat superior theory.”  Monell, 436 U.S. at 691.   

            An institutional defendant, such as a school district or municipality, is not entitled to qualified immunity.  See Owen v. Independence, 445 U.S. 622, 638 (1980) (holding that “municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983”).  

            “The ‘official policy’ requirement ‘was intended to distinguish acts of the municipality from acts of employees of the municipality,’ and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.”  Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986) (emphasis in original).  Because there are several ways to establish “Monell liability,” see Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999), the Committee also includes in this chapter separate elements instructions for several bases of such liability (Instructions 9.5, 9.6, 9.7, and 9.8).  

Good-Faith Defense

Both private parties and local governments “may invoke an affirmative defense of good faith to retrospective monetary liability under 42 U.S.C. § 1983, where they acted in direct reliance on then-binding Supreme Court precedent and presumptively-valid state law.” Danielson v. Inslee, 945 F.3d 1096, 1097 (9th Cir. 2019) (holding that public-sector unions could rely on good-faith defense to avoid liability for unlawful fees collected when binding precedent authorized such fees); see also Allen v. Santa Clara Cnty. Corr. Peace Officers Ass'n, 38 F.4th 68 (9th Cir. 2022) (holding that county which assisted public-sector union’s efforts to collect unlawful fees could rely on same good-faith defense).

A private party that acted upon the instructions of a local police department may also invoke a good faith defense.  Clement v. City of Glendale, 518 F.3d 1090, 1096-97 (9th Cir. 2008) (holding that towing company that relied on police officer’s authorization, towed vehicle under close police supervision, and did its best to follow law could rely on good-faith defense to liability even though police officer’s decision to tow vehicle violated plaintiff’s due process rights)

Eleventh Amendment Immunity  

            Despite the language of § 1983, “every person” does not have a universal scope; it does not encompass claims against a state or a state agency because the Eleventh Amendment bars such encroachments on a state’s sovereignty.  Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997) (“States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes are not ‘persons’ under § 1983,” quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)).  Even if a plaintiff seeks only injunctive relief, a state that has not waived its Eleventh Amendment immunity cannot be sued in its own name under § 1983. Will, 491 U.S. at 64, 71, n.10.  

            The Ninth Circuit applies a five-factor test to determine whether a government entity is a state agency for Eleventh Amendment purposes: (1) whether a money judgment would be satisfied out of state funds; (2) whether the entity performs central governmental functions; (3) whether the entity may sue or be sued; (4) whether the entity has the power to take property in its own name or only the name of the state; and (5) whether the entity has the corporate status of a state agency.  Mitchell v. Los Angeles Cnty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988).  The first prong of the test—whether a money judgment would be satisfied out of state funds—is the most important.  Ray v. City of Los Angeles, 935 F.3d 703, 709-10 (9th Cir. 2019).  

            In contrast to a state or state agency, a state official may be sued in his or her official capacity under § 1983, but only for prospective injunctive relief.  This is because “official-capacity actions for prospective relief are not treated as actions against the State.”  Will, 491 U.S. at 71 n.10.  A state official may be sued under § 1983 in his or her individual capacity for damages.  Kentucky v. Graham, 473 U.S. 159, 165 (1985); but see Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010) (holding that in order to be individually liable under § 1983, individual must personally participate in alleged rights deprivation).   

            The Committee also recommends the Section 1983 Outline prepared by the Office of Staff Attorneys, United States Court of Appeals for the Ninth Circuit, available at:

Revised Sept 2022