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Ninth Circuit updates its civil instructions

The Ninth Circuit posts quarterly updates of its Manuals of Model Jury Instructions. They recently posted the "September 2021" revisions of both its civil and criminal instructions. We'll look at the civil revisions first, and list the criminal changes later this week.

There were no substantive changes to the instructions. Chapter 1 is no longer titled "Preliminary Instructions"; it is now "Instructions on the Trial Process." The rest of the changes are 2021 case notes in the comment sections. One historical note: for the first time, the civil instructions are posted in DOCX (Microsoft Word), not WPD (WordPerfect), format (the criminal instructions are still WPD).

Here are the changes:

  • The Comment to Instruction 9.9 (PARTICULAR RIGHTS-FIRST AMENDMENT-PUBLIC EMPLOYEES-SPEECH) now notes Kennedy v. Bremerton School Dist., 991 F.3d 1004, 1016 (9th Cir. 2021), where the Ninth Circuit held that a football coach spoke as a public employee when the employer directed speech after games, and therefore First Amendment rights were limited.
  • The Comment to Instruction 9.10 (PARTICULAR RIGHTS-FIRST AMENDMENT-PUBLIC EMPLOYEES-SPEAKING AS A PRIVATE CITIZEN) now notes Ohlson v. Brady, 9 F.4th 1156 (9th Cir. 2021) (concluding that forensic scientist who testified in court as part of his job duties spoke as employee rather than private citizen entitled to First Amendment protection).
  • The Comment to Instruction 9.19 (PARTICULAR RIGHTS-FOURTH AMENDMENT- UNREASONABLE SEIZURE OF PROPERTY-EXCEPTIONS TO WARRANT REQUIREMENT) now notes Kilgore v. City of South El Monte, 3 F.4th 1186, 1189-93 (9th Cir. 2021) (discussing warrantless administrative searches for “closely regulated” businesses).
  • The Comment to Instruction 9.25 (PARTICULAR RIGHTS-FOURTH AMENDMENT-UNREASONABLE SEIZURE OF PERSON-EXCESSIVE FORCE) now notes O’Doan v. Sanford, 991 F.3d 1027, 1037 (2021), regarding least intrusive means, and Rice v. Morehouse, 989 F.3d 1112, 1122 (9th Cir. 2021), regarding an officers duty to independently evaluate a situation when they arrive.
  • The Comment to Instruction 9.30 (PARTICULAR RIGHTS-FOURTEENTH AMENDMENT-PRETRIAL DETAINEE’S CLAIM RE CONDITIONS OF CONFINEMENT/MEDICAL CARE), now cites Gordon v. Cnty. of Orange, 6 F.4th 961 (9th Cir. 2021), which reiterates the objective standard, holds that pre-trial detainees do have a right to direct-view safety checks sufficient to determine whether their presentation indicates the need for medical treatment.
  • The Comment to Instruction 9.33 (PARTICULAR RIGHTS-FOURTEENTH AMENDMENT-DUE PROCESS-DELIBERATE FABRICATION OF EVIDENCE) now cites O’Doan v. Sanford, id., which notes that technical inaccuracy is not fabrication).
  • The Comment to Instruction 9.34 (QUALIFIED IMMUNITY) now cites O’Doan v. Sanford, id., regarding skipping to the second step in evaluating qualified immunity. It also cites Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir. 2021), applying Pearson v. Callahan, 555 U.S. 223 (2009).
  • The Comment to Chapter 10 (CIVIL RIGHTS-TITLE VII-EMPLOYMENT DISCRIMINATION; HARASSMENT; RETALIATION) now cites Maner v. Dignity Health, 9 F.4th 1114 (9th Cir. 2021), which noted that “paramour preference” does not constitute discrimination on the basis of sex.
  • The Comment to Instruction 15.8 (INFRINGEMENT-ELEMENTS-PRESUMED VALIDITY AND OWNERSHIP-REGISTERED TRADEMARK) now notes Social Technologies v. Apple, 4 F.4th 811 (9th Cir. 2021) (discussing petition to cancel registration).
  • The Comment to Instruction 15.18 (INFRINGEMENT-LIKELIHOOD OF CONFUSION-FACTORS-SLEEKCRAFT TEST) now notes Ironhawk Techs., Inc. v. Dropbox, Inc., 2 F.4th 1150 (9th Cir. 2021) (before applying the Sleekcraft factors, the court first should define the relevant consumer market; evidence of actual confusion by consumers is strong evidence of likelihood of confusion; nevertheless, failure to prove instances of actual confusion is not dispositive.
  • The Comments to Instruction 18.1 (SECURITIES-DEFINITIONS OF RECURRING TERMS), 18.3 (SECURITIES-MISREPRESENTATIONS OR OMISSIONS-MATERIALITY), and 18.4 (SECURITIES-FORWARD-LOOKING STATEMENTS) now cite In re Alphabet, Inc. Sec. Litig., 1 F.4th 687 (9th Cir. 2021).

The prior versions of these instructions are archived here.

(11/08/21) (permalink)