In Hunter v. County of Sacramento, et. al., No. 09-15288, the Ninth Circuit today reversed the EDCA court's order denying plaintiffs' motion for new trial in a civil rights action alleging that the two plaintiffs were subjected to excessive force pursuant to a Sacramento County "custom or practice" at its main jail. [Sacramento Bee, 7/27/11]. The jury had found for the defendants at trial.
On appeal, the Ninth Circuit held "that the District Court prejudicially erred in refusing to instruct the jury that, for purposes of proving a Monell [v. Dep't of Social Servs, 436 U.S. 658 (1978)] claim, a custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished." Slip. op at 9599. The district court erred in not using plaintiff's proposed "custom and practice" Monell instruction and relying instead on the Ninth Circuit's incomplete Model Civil Jury Instr. 9.4.