Under Section 1983, may an individual bring a civil rights lawsuit against a city based upon allegations that the city engaged in an illegal custom — even if the custom was not officially established? Here’s my point of view.
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UNOFFICIAL GOVERNMENTAL CUSTOM
Local governmental entities may be sued under Section 1983 for “constitutional deprivations visited pursuant to governmental ‘custom,’ even though such a custom has not received formal approval through the entity’s official decisionmaking channels.” City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S. Ct. 915, 99 L. Ed. 2d 107, 14 Fed. R. Serv. 3d 412 (1988) (internal citations omitted).
“Showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity is one way to establish municipal liability.” Ulrich v. City and County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (internal citations and quotation marks omitted).
EXAMPLE: CHEW v. GATES
In Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994) a police officer turned a police dog loose on Chew and it assaulted Chew directly causing injury; the city argued that the unofficial policy of using dogs to apprehend suspects was attributable only to the non-policymaking officers responsible for training the canine units and not the police chief or commission — policymaking officials.
The court found that “[a] city could not escape liability for the consequences of established and ongoing departmental policy regarding the use of force simply by permitting such basic policy decisions to be made by lower level officials who are not ordinarily considered policymakers.” Id. at 1445.
Furthermore, the court found that “if the city in fact permitted departmental policy regarding the use of canine force to be designed and implemented at lower levels of the department, a jury could, and should, nevertheless find that the policy constituted an established municipal ‘custom or usage’ regarding the use of police dogs for which the city is responsible.” Id. (referencing City of St. Louis, 485 U.S. at 127)
Thus, the court held that the city acted under color of law in injuring Chew.
CONCLUSION
Under § 1983, I believe an individual may bring a civil rights lawsuit against a city based upon allegations that the city engaged in an unofficial illegal custom.
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