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A closer look at the March 2021 Ninth Circuit Model Instruction revisions

First, the criminal changes:

  • The Comment to Instruction 8.25 (CONSPIRACY—LIABILITY FOR SUBSTANTIVE OFFENSE COMMITTED BY CO-CONSPIRATOR (PINKERTON CHARGE)) adds a citation to United States v. Henry, 984 F.3d 1343, 1355-1356 (9th Cir. 2021).
  • The Comment to Instruction 8.63 (FIREARMS—UNLAWFUL RECEIPT) now notes that the government must prove that the defendant knew he had a nonimmigrant visa at the time of the offense for crimes charged under § 922(g)(5)(b), citing United States v. Gear, 985 F.3d 759, 761 (9th Cir. 2021).
  • The Comment to Instruction 8.71 (FIREARMS—USING, CARRYING, OR BRANDISHING IN COMMISSION OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME) now states that a conviction based on an accomplice theory of liability may serve as a predicate for a § 924(c) conviction, citing United States v. Henry, 984 F.3d 1343, 1356 (9th Cir. 2021).
  • The discussion of United States v. Hong at the end of the Comment to 8.83 (FRAUD IN CONNECTION WITH IDENTIFICATION DOCUMENTS-AGGRAVATED IDENTITY THEFT) has been replaced with:
    "Use" under § 1028A requires that the use of the means of identification was central to the specified felony and facilitated its commission. For example, the forging of someone else’s signature on a fraudulent life insurance application constitutes a “use” within the meaning of § 1028A. See United States v. Gagarin, 950 F.3d 596, 604 (9th Cir. 2020). In addition, submitting TRICARE claims that falsely identify a therapist as being the rendering provider for dates on which the therapist provided no services constitutes a "use" within the meaning of § 1028A. See United States v. Harris, 983 F.3d 1125, 1128 (9th Cir. 2020). But employing a patient’s Medicare identification information to file Medicare claims that falsely identified the treatments as a Medicare-eligible physical therapy services rather than as massages does not constitute a "use" within the meaning of § 1028A. See United States v. Hong, 938 F.3d 1040, 1051 (9th Cir. 2019).
  • The Comment to Instruction 8.90 ACCESS (DEVICE—DEFINED) now cites United States v. Gainza, 982 F.3d 762, 764 (9th Cir. 2020) ("The term 'access device' includes the information needed to access funds from a debit or credit card, such as the account number and the PIN.").
  • The Comments to Instructions 8.143A (HOBBS ACT—ROBBERY OR ATTEMPTED ROBBERY) and 8.143B (HOBBS ACT—AFFECTING INTERSTATE COMMERCE) add citations to United States v. Woodberry, 987 F.3d 1231, 1235 (9th Cir. 2021) (robberies of licensed marijuana dispensaries).
  • The Comment to Instruction 8.162 (BANK ROBBERY) now cites for the proposition that armed bank robbery under § 2113(d) "requires that 'the robber knowingly made one or more victims at the scene of the robbery aware that he had a gun, real or not,'" citing United States v. Henry, 984 F.3d 1343, 1356 (9th Cir. 2021).
  • Instruction 9.4 has been rewritten based on the recent panel decision in United States v. Sineneng-Smith. I posted a note about it last week.

The civil revisions were a bit more extensive:

  • The Comment to Instruction 9.1 (SECTION 1983 CLAIM—INTRODUCTORY INSTRUCTION) now cites Pasadena Republican Club v. W. Justice Ctr., 985 F.3d 1161 (9th Cir. 2021), regarding the joint action test.
  • The discussion of Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc), that appeared at the end of the Comment to Instruction 9.5 has been removed.
  • The second half of element 5 of Instruction 9.8 (SECTION 1983 CLAIM AGAINST LOCAL GOVERNING BODY DEFENDANTS BASED ON A POLICY THAT FAILS TO PREVENT VIOLATIONS OF LAW OR A POLICY OF FAILURE TO TRAIN—ELEMENTS AND BURDEN OF PROOF) now reads:
    that is, the defendant’s failure [to prevent violations of law by its employees] [to train] is so closely related played a substantial part in bringing about or actually causing the injury or damage to the deprivation of the plaintiff’s rights as to be the moving force that caused the ultimate injury plaintiff.
    Also, the Instruction now provides that the plaintiff may prove deliberate indifference in this case by showing that
    the facts available to the defendant [name of local governing body] knew its put it on actual or constructive notice that its [failure to implement adequate policies] [failure to train adequately] made it highly predictable that its was substantially certain to result in the violation of the constitutional rights of persons such as the plaintiff due to [police officer[s]] [employee[s]] would engage in’s conduct that would deprive persons such as the plaintiff of [his] [her] rights.
    The paragraph in the Comment that begins "As noted in the Introductory Comment to this chapter, § 1983 liability of a local governing body may not be based on respondeat superior." has the following added at the end of the paragraph:
    Instead, a plaintiff must establish a “direct causal link” between the municipal policy or custom and the alleged constitutional violation. See Sandoval v. Cnty. of San Diego, 985 F.3d 657, 681 (9th Cir. 2021). This “requires showing both but for and proximate causation.” Tsao, 698 F.3d at 1146 (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). In Harper, the Ninth Circuit approved of a jury instruction that explained that “proximate cause exists where “an act or omission played a substantial part in bringing about or actually causing the injury or damage to plaintiffs.” Harper, 533 F.3d at 1026.
    Finally, the discussion of Castro in the last paragraph of the Comment has been replaced with this the following:
    In Sandoval v. County of San Diego, 985 F.3d 657, 682 (9th Cir. 2021), the Ninth Circuit applied an objective deliberate indifference standard to the county’s policy of maintaining a mixed-use cell—sometimes using the cell for medical care and other times as a general holding cell—with only an informal verbal pass-off system for notifying nurses whether the detainee in the mixed-use cell required medical supervision. The court held that the standard “requires a showing that the facts available to the county put it on ‘actual or constructive notice’ that its practices with regard to [the mixed-use] cell were ‘substantially certain to result in the violation of the constitutional rights of [its] citizens.’” Id. (footnote omitted) (quoting Castro, 833 F.3d at 1076).
  • The paragraph in the Comment to Instruction 9.9 (PARTICULAR RIGHTS—FIRST AMENDMENT—PUBLIC EMPLOYEES—SPEECH) that comes after the dicussion of Demers (that starts "Whether the plaintiff spoke as a public employee") has been deleted. The following pargaraph has been added at the end:
    After a plaintiff establishes the first three steps, he or she has made out a prima facie case, and at step four the burden shifts to the government “to show that ‘under the balancing test established by Pickering, [the government’s] legitimate administrative interests outweigh the employee’s First Amendment rights.’” Moser v. Las Vegas Metro. Police. Dept., 984 F.3d 900, 906 (9th Cir. 2021) (quoting Eng, 552 F.3d at 1071) (holding the government failed to satisfy its step four burden because it did not produce any evidence indicating the speech at issue caused or would cause disruption). “[T]he Pickering balancing test is a legal question, but its resolution often entails underlying factual disputes that need to be resolved by a fact-finder.” Id. at 911 (quoting Eng, 552 F.3d at 1071). For example, the weight of the employee’s First Amendment interest is a question of law, but it is in part determined by the objective meaning of the employee’s speech, which is a question of fact. Id. at 906–08.
  • The first paragraph of the Comment to Instruction 9.10 (PARTICULAR RIGHTS—FIRST AMENDMENT—PUBLIC EMPLOYEES—SPEAKING AS A PRIVATE CITIZEN) now reads:
    Whether the plaintiff spoke as a public employee or a private citizen is a mixed question of fact and law. Barone v. City of Springfield, 902 F.3d 1091, 1099, 1101-06 (9th Cir. 2018) (“Whether an individual speaks as a public employee is a mixed question of fact and law . . . . First, a factual determination must be made as to the scope and content of a plaintiff’s job responsibilities . . . . Second, the ultimate constitutional significance of those facts must be determined as a matter of law.”) (citations and quotation marks omitted). In Dahlia v. Rodriguez, 735 F.3d 1060, 1063 (9th Cir. 2013) (en banc), the Ninth Circuit overruled Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009), and found that the district court had improperly relied on a generic job description and failed to conduct the practical, fact-specific inquiry required by Garcetti, 547 U.S. at 424. The Ninth Circuit also set forth guiding principles for performing the Garcetti inquiry in analogous cases. Id. at 1073-76; see, e.g., Hagen v. City of Eugene, 736 F.3d 1251, 1258-60 (9th Cir. 2013) (holding that public employee reporting departmental safety concerns pursuant to duty to so report did not speak as private citizen). “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.” Lane v. Franks, 134 S. Ct. 2369, 2378 (2014); see also Avila v. L.A. Police Dep’t, 758 F.3d 1096, 1104 (9th Cir. 2014).
  • The following has been added at the end of the Comment to Instruction 9.20 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—GENERALLY): "A Fourth Amendment seizure of a bystander can occur when officers intentionally use force that injures the bystander. Villanueva v. California, 986 F.3d 1158, 1168 (9th Cir. 2021) (citing Nelson v. City of Davis, 685 F.3d 867, 876 (9th Cir. 2012))."
  • The second to last paragraph of Instruction 9.25 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—EXCESSIVE FORCE) now ends: "But the use of deadly force to stop a slow-moving vehicle when the officers could easily have stepped aside violates the Fourth Amendment. Villanueva v. California, 986 F.3d 1158, 1170 (9th Cir. 2021) (citing Acosta v. City & Cnty. of S.F., 83 F.3d 1143, 1146 (9th Cir. 1996), as amended (June 18, 1996), abrogated on other grounds by Saucier v. Katz, 533 U.S. 194 (2001))."
  • The Comment to Instruction 9.30 (PARTICULAR RIGHTS—FOURTEENTH AMENDMENT—PRETRIAL DETAINEE’S CLAIM RE CONDITIONS OF CONFINEMENT/MEDICAL CARE) now cites Sandoval v. Cnty. of San Diego, 985 F.3d 657 (9th Cir. 2021).
  • The Comment to Instruction 10.4 (CIVIL RIGHTS—TITLE VII—HOSTILE WORK ENVIRONMENT—HARASSMENT) now cites Christian v. Umpqua Bank, 984 F.3d 801 (9th Cir. 2020).
  • A new paragraph appears at the end of the Comment to Instruction 10.5 (CIVIL RIGHTS—TITLE VII—HOSTILE WORK ENVIRONMENT—HARASSMENT BECAUSE OF PROTECTED CHARACTERISTICS—ELEMENTS:
    In determining whether the harassment was sufficiently severe or pervasive, the fact finder should consider all circumstances, “including those incidents that do not involve verbal communication between the plaintiff and harasser, physical proximity, or physical or sexual touching,” including interactions between the harasser and third persons. Christian v. Umpqua Bank, 984 F.3d 801, 810–11 (9th Cir. 2020) (citing Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008)). When harassment is of the “same type of conduct,” “occurred relatively frequently,” and was “perpetrated by the same individual,” that harassment should be evaluated together when assessing its severity. Id. at 810 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 120–21 (2002)).
  • A new paragraph appears at the end of the Comment to Instruction 15.19A (EXPRESSIVE WORKS):
    “The Rogers test drew a balance in favor of artistic expression and tolerates ‘the slight risk that [the use of the trademark] might implicitly suggest endorsement or sponsorship to some people.” Dr. Seuss Entprs., L.P. v. ComicMix LLC, 983 F.3d 443, 462 (9th Cir. 2020) (holding Lanham Act did not apply despite alleged use of trademark when junior use was not explicitly misleading and distinguishing Gordon v. Drape Creative, Inc., 909 F.3d 257 (9th Cir. 2018)).
  • The Comment to Instruction 17.22 (COPYRIGHT—AFFIRMATIVE DEFENSE—FAIR USE) twice references Dr. Seuss Entprs., L.P. v. ComicMix LLC, 983 F.3d 443 (9th Cir. 2020).
  • The Comment to Instruction 17.35 (COPYRIGHT—DAMAGES—STATUTORY DAMAGES) now states that in "In the case of willful infringement, the statutory maximum for damages is $150,000. 17 U.S.C. § 504(c)(2)." The paragraph that begins "If statutory damages are assessed against one defendant or a group of defendants ..." inserts the following: "This is true even if there is incomplete joint and several liability between all parties. Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1265 (9th Cir. 2021) (holding that only one statutory award was available when “one infringer is jointly and severally liable with all other infringers, but the other infringers are not completely jointly and severally liable with one another”)."
  • The fifth paragraph in the Comment to Instruction 18.4 (SECURITIES—FORWARD-LOOKING STATEMENTS) (discussing In re Cutera) has been replaced with a paragraph discussing Wochos v. Tesla, Inc., 985 F.3d 1180, 1190 (9th Cir. 2021).
  • The Comment to Instruction 18.8 (SECURITIES—CAUSATION) now cites Wochos v. Tesla Motors, Inc., 985 F.3d 1180, 1198 (9th Cir. 2021).

The prior (December 2020) versions of both sets are archived here.

(04/16/21) (permalink)