The Ninth Circuit posted June 2021 revisions to its civil instructions this week:
The Comment to Instruction 9.10 (PARTICULAR RIGHTS—FIRST AMENDMENT—PUBLIC EMPLOYEES—SPEAKING AS A PRIVATE CITIZEN) now cites Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1015 (9th Cir. 2021).
A sentence in the Comment to Instruction 9.19 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PROPERTY—EXCEPTIONS TO WARRANT REQUIREMENT) has been amended to read: "A plaintiff alleging a § 1983 claim based on an unreasonable searchseizure in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply."
The Comment to Instruction 9.25 (PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEIZURE OF PERSON—EXCESSIVE FORCE) now notes that officers have a duty to independently evaluate a situation when they arrive if they have an opportunity to do so, citing Rice v. Morehouse, 989 F.3d 1112, 1122 (9th Cir. 2021).
A paragraph in the Comment to Instruction 9.26 (PARTICULAR RIGHTS—EIGHTH AMENDMENT—CONVICTED
PRISONER’S CLAIM OF EXCESSIVE FORCE) has been rewritten to emphasize that juries may be instructed that they need not always defer to the judgment of officials.
The following language has been deleted from Instruction 9.27 (PARTICULAR RIGHTS—EIGHTH AMENDMENT—CONVICTED PRISONER’S CLAIM RE CONDITIONS OF CONFINEMENT/MEDICAL CARE): "[In determining whether the defendant violated the plaintiff’s rights as alleged, you should give deference to [jail] [prison] officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security.]" The Comment explains that this deletion was required by Shorter v. Baca, 895 F.3d 1176 (9th Cir. 2018).
The final sentence, "In considering these elements, you should give deference to prison officials in the adoption and execution of policies and practices that, in their judgment, are needed to preserve discipline and to maintain internal security in a prison." has been deleted from Instruction 9.28 (PARTICULAR RIGHTS—EIGHTH AMENDMENT—CONVICTED PRISONER’S CLAIM OF FAILURE TO PROTECT). This change is discussed at the end of the Comment.
The Comment to Instruction 15.18 (INFRINGEMENT—LIKELIHOOD OF CONFUSION—FACTORS—SLEEKCRAFT TEST) now cites Ironhawk Techs., v. Inc. v. Dropbox, Inc., 994 F.3d 1107 (2021).
The Comment to Instruction 15.19 (INFRINGEMENT—LIKELIHOOD OF CONFUSION—FACTOR—STRENGTH OF TRADEMARK) adds this paragraph at the end:
For evaluating the strength of a mark in reverse confusion cases, the questions are “‘whether consumers doing business with the senior user might mistakenly believe that they are dealing with the junior user’” and what the conceptual strength of the senior mark is compared to the commercial strength of the junior mark. Ironhawk Techs., Inc. v. Dropbox, Inc., 994 F.3d 1107, 1118 (9th Cir. 2021) (quoting JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1107 (9th Cir. 2016)).