Martin A. Schwartz

Many §1983 plaintiffs seek to establish municipal liability for the violation of constitutional rights based on the enforcement of a municipal custom or practice. This column analyzes “custom or practice” municipal liability. We will explain the importance of this issue, explore the meaning of “custom and practice,” and identify the types of evidence that may be admissible to prove a municipal custom or practice.

In its landmark decision in Monell v. N.Y.C. Department of Social Services, 436 U.S. 658 (1978), the U.S. Supreme Court held that municipalities may be sued under §1983, but not on the basis of respondeat superior. A municipality may be liable under §1983 only for its own wrongs, which means when the violation of the plaintiff’s federal rights resulted from the enforcement of a municipal policy or practice. “[I]t is when execution of a government’s policy or custom …  inflicts the injury that the government as an entity is responsible under §1983.” Id. at 694.

Monell referred to three types of municipal policies that may give rise to §1983 liability: (1) a formally adopted express municipal policy, such as an ordinance, regulation or policy statement; (2) the “edicts or acts” of a municipal policymaker; and (3) a widespread practice that, although not authorized by written law or express municipal policy, is “so permanent and well settled as to constitute a “custom or usage” with the force of law.’” Monell, 436 U.S. at 691 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)); see also Nashville Chat. & St. L.R. Co v. Browning, 310 U.S. 362, 369 (1940) (Frankfurter, J.) (traditional activity by government “is often tougher and truer than the dead words of the written text.”) (quoted in Monell). Subsequent Supreme Court decisions recognize that §1983 municipal liability may also be based on deliberately indifferent training, City of Canton v. Harris, 489 U.S. 378 (1989), or deliberately indifferent employee screening, Board of County Comm’rs v. Brown, 520 U.S. 397 (1997).

Custom or practice is an extremely important basis of §1983 municipal liability, especially for claims arising out of the conduct of law enforcement officers. We would not expect a municipality to formally adopt a policy authorizing its police officers to engage in clearly unconstitutional conduct, for example, to use deadly force without justification, to taze anyone who disrespects an officer, or to make racially motivated stops and frisks. See Knight v. Miami- Dade County, 856 F.3d 819 (11th Cir. 2017) (municipality will rarely have official policy permitting particular constitutional violation). But a police practice may be so pervasive, so “persistent and widespread” or “settled” that, realistically, the practice represents the policy of the municipality. It is the way the municipality does business. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (“longstanding practice or custom constitutes the ‘standard operating procedure’ of the local governmental entity.”).

A persistent custom or practice may constitute a municipal policy even though it is contrary to a formally promulgated policy. Justice O’Connor’s plurality opinion in City of St. Louis v. Praprotnick, 485 U.S. 112, 130-31 (1988) (dicta) indicated agreement with Justice Brennan’s position in his concurrence that “a municipal charter’s precatory admonition” against discriminatory employment practices would not insulate the municipality from liability for a discriminatory employment practice that is inconsistent with the formally promulgated “written admonition.” Id. at 145 n.7. See Daskola v. District of Columbia, 227 F.3d 433, 442 (D.C. Cir. 2000) (“[A] ‘paper policy’ against sexual harassment cannot insulate a municipality from liability where there is evidence … that the municipality was deliberately indifferent to the policy’s violations.”). See also Musick v. Erie County Water Authority, 757 F.3d 36. 61-63 (2d Cir. 2014) (harassment of former employee was pursuant to custom or practice). In other words, a written policy prohibiting unlawful action that is ignored is tantamount to no policy, while an unlawful practice realistically represents the municipality’s policy. See Price v. Sery, 513 F.3d 971, 973-74 (9th Cir. 2008) (City’s official policy concerning use of deadly force was constitutional but there was issue of fact whether city’s longstanding custom or practice deprived plaintiff of his constitutional rights).

While a persistent practice may be carried out by the “higher-ups,” plaintiffs typically allege a practice carried out by subordinate employees. See Praprotnick, 485 U.S. at 130 (dictum) (referring to “a series of decisions by a subordinate official [or officials manifesting] a ‘custom or usage’ of which the supervisor must have been aware”). When line officers engage in sufficiently persistent conduct the policymakers will be charged with actual or constructive notice of their wrongdoing. See Spell v. McDaniel, 824 F. 2d 1380, 1387 (4th Cir. 1987), cert. denied, 484 U.S. 1027 (1988) (persistent and widespread practices “may be attributed to a municipality when the duration and frequency of the practices warrants a finding of either actual or constructive knowledge by the municipal governing body that the practices have become customary among its employees. Actual knowledge may be evidenced by recorded reports to or discussions by a municipal governing body. Constructive knowledge may be evidenced by the fact that the practices have been so widespread or flagrant that in the proper exercise of its official responsibilities the governing body should have known of them.”) (citations omitted); Cordero v. City of New York, 282 F. Supp. 3d 549, 563 (E.D.N.Y. 2017) (referring to municipality’s tacit authorization).

When are the actions of municipal employees sufficiently “permanent and well settled” or “widespread” to be considered a municipal custom or practice? The terms “custom,” “practice,” and “usage” are used by the courts interchangeably. At the pleading stage, the plaintiff is not required to plead her evidence, but she must allege non-conclusory facts constituting a plausible claim of custom or practice. See, e.g., Mick v. Raines, 883 F.3d 1075, 1078-79 (8th Cir. 2018). The key question at summary judgment usually is whether the plaintiff has produced sufficient admissible evidence of the alleged custom or practice for a reasonable jury to find that it exists. Mick v. Raines, 883 F.3d at 1079-80. Should the issue get to the jury it will have to determine under proper instructions whether the evidence supports the existence of the alleged custom or practice by a preponderance of the evidence. Of course, in a bench trial, such as in the NYC stop and frisk case, the trial judge is the finder of fact. Floyd v. City of N.Y., 959 F. Supp. 2d 540 (S.D.N.Y. 2013).

It is clear that random, sporadic, or isolated instances do not suffice to establish a municipal custom or practice. See, e.g., Peterson v. City of Fort Worth, 588 F. 3d 838 (5th Cir. 2009) (27 excessive force complaints over four-year period did not constitute practice of Fort Worth Police Department). However, there is no magic formula or bright line rule to distinguish isolated instances from a widespread custom or practice. Wilson v. Cook County, 742 F.3d 775, 780 (7th Cir. 2014). Each case must be determined on the basis of its particular facts. Courts should consider these factors:

• how longstanding the alleged practice is;

• the similarity of the alleged unconstitutional acts;

• the number and percentage of officials engaged in the unconstitutional conduct; for example, although the 27 excessive force incidents over four years did not constitute a practice of a large police department like the Fort Worth Police Department, perhaps it would have been a closer call for a much smaller police department.

• the egregiousness of the alleged conduct; this should be a pertinent factor because, after all, the more egregious the conduct at issue, the more likely it is that the policymakers knew or should have known about a pattern of its wrongdoing.

The decisions do not clearly spell out when a custom or practice claim requires the plaintiff to prove that the municipality was deliberately indifferent. The Supreme Court municipal liability decisions hold that a municipality can be liable under §1983 even though the municipal policy itself is not unconstitutional, as in failure to train and inadequate screening cases, but that the plaintiff in these cases must show that the municipality was deliberately indifferent to the rights of the plaintiff(s). See, e.g., City of Canton v. Harris, supra. Logically, therefore, a plaintiff who alleges a practice of unconstitutional conduct should not be required to show deliberate indifference.

Courts have considered a wide range of circumstantial evidence in determining whether the plaintiff has established a municipal custom or practice. See Martin A. Schwartz, Section 1983 Litigation: Federal Evidence ch.12 (5th ed. 2017). The evidence includes:

• testimony of a municipal employee or employees constituting “[e]vidence of a person’s habit or an organization’s routine practice.” Fed R. Evid. 406

• “other act” evidence. Fed R. Evid. 404(b).

• statistical evidence. See, e.g., Watson v. Kansas City, 857 F.3d 690 (10th Cir. 1988); Floyd v. City of N.Y., 959 F. Supp. 2d 540.

• expert testimony. See, e.g., Floyd v. City of New York, 959 F. Supp. 2d 540 (expert testimony explaining statistical evidence and its significance).

• fact testimony based on personal knowledge, Fed. R. Evid, 602, and lay opinion testimony. Fed. R. Evid. 701. See, e.g., Montano v. Orange County, 42 F.3d 865, 875-76 (5th Cir. 2016) (consistent testimony of jail employees is sufficient to prove established de facto policy).

• evidence of plaintiff’s particular circumstances. See, e.g., Sorlocco v. New York Police Dep’t, 971 F.2d 864 (2d Cir. 1992).

• statements by municipal officials. Fed R. Evid. 801(d) (statements of party opponent). See, e.g., La Porta v. City of Chicago, 277 F. Supp. 3d 969, 989 (N.D. Ill. 2017) (“… the Mayor’s statements and the contents of the City—commissioned PATF report constitute admissions of a party opponent … .”)

• governmental investigatory reports. Fed R. Evid. 803(8)(A)(iii). See, e.g., Daniel v. Cook County, 833 F.3d 728 (7th Cir. 2016); Pipitone v. City of N.Y., 57 F. Supp. 3d 173 (E.D.N.Y. 2014); Gentile v. County of Suffolk, 129 F.R.D. 135 (E.D.N.Y. 1990), aff’d, 926 F.2d 142 (2d Cir. 1991).

Judicial decisions finding a municipal custom or practice typically piece together multiple types of evidence in combination to support their findings. For example, in Floyd v. City of New York, 959 F. Supp. 2d 540, Judge Shira Scheindlin’s finding that the City had a practice of making racially and ethnically motivated police stops and frisks was based upon, inter alia, (1) the 19 individual stops that were the subject of trial testimony; much more significantly (2) extensive statistical evidence; and (3) plaintiff’s expert testimony analyzing the statistical evidence. See also Daniel v. Cook County, 833 F.3d 728 (court relied on plaintiff’s own experience, deposition testimony of jail employee, and Department of Justice report); Shepard v. Dallas County, 591 F.3d 445, 453 (5th Cir. 2009) (court relied upon report commissioned by county, Department of Justice report, affidavits of jail employees and other documents); Sorlucco v. New York City Police Dep’t, 971 F.2d 864 (court relied on evidence pertaining to named plaintiff, statistical evidence, and expert testimony).

Prevailing on a claim that municipal policymakers failed to correct a widespread practice of constitutional violations “is no easy task.” Owens v. Baltimore City State’s Attorneys Office, 767 F.3d 379, 402 (4th Cir. 2014), cert. denied, 135 S.Ct. 1893 (2015). These claims may require extensive pretrial discovery and perhaps utilization of other investigative tools in order to uncover the necessary evidence. Over a quarter of a century ago, Judge Jack B. Weinstein in Gentile v. County of Suffolk, supra recognized the importance of investigatory reports to prove a municipal custom or practice. At issue in Gentile was the admissibility of a report of the New York Commission of Investigation of the Suffolk County District Attorney’s Office and Police Department (the SIC report), which found that those offices tolerated and ratified police and prosecutorial misconduct. In finding the SIC report admissible, Judge Weinstein stressed that:

“[w]ere reports such as the SIC report excluded plaintiffs would be forced to introduce proof of innumerable individual incidents of police and prosecutorial misconduct in order to show that a municipal practice, policy or custom existed. This would make it very difficult, if not impossible, for many deserving plaintiffs to prevail, thereby frustrating federal civil rights policy. [Exclusion] would also duplicate—at great cost to the parties, the court and the taxpayers—the work of a competent agency … vested with expertise …”

Gentile, 129 FRD at 459-60.

More recently the Seventh Circuit in Daniel v. Cook County, 833 F.3d at 742, in holding a U.S. Department of Justice report finding widespread constitutional violations at the county jail admissible, observed that the report’s findings “would be difficult to replicate through ordinary processes of litigating individual cases.”

Government investigatory reports come in all shapes and sizes. Admissibility depends primarily on whether the report satisfies the elements of the Rule 803(8)(A)(iii) governmental investigatory report hearsay exception. Typically, the major contested issue under this hearsay exception is whether the report is sufficiently trustworthy. Fed. R. Evid. 803(8)(B) (authorizing exclusion if the opponent “shows that the source of information or other circumstances indicate a lack of trustworthiness.”). In evaluating the trustworthiness of a report, courts consider such factors as (1) the timeliness of the investigation; (2) the skills and experience of the investigators; (3) the procedures used to conduct the investigation, and (4) possible motivational problems, especially whether the report was prepared for the purpose of litigation. Even a report not admissible for its truth may be admissible to show that the policymakers were on notice of widespread violations.

Ultimately, whether the evidence supports the existence of an alleged municipal custom or practice calls for a careful case-by-case analysis. Counsel involved in the litigation of these claims should review the reported decisions carefully for guidance as to evidence found sufficient to support a municipal custom or practice and, conversely, evidence found insufficient.

Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.