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June 2022 changes to the Ninth Circuit Model Civil Jury Instructions

The Ninth Circuit has posted the June 2022 revised version of its Model Civil Jury Instructions. The changes are as follows:

  • The Comment to Instruction 9.9 (Particular Rights—First Amendment—Public Employees—Speech) now has an extended discussion of Riley’s American Heritage Farms v. Elsasser, 32 F.4th 707 (9th Cir. 2022), regarding its application to government contractors. The instruction does not apply to restrictions on the speech of elected officials per Boquist v. Courtney, 32 F.4th 764 (9th Cir. 2022).
  • The Comment to Instruction 9.11 (Particular Rights—First Amendment— “Citizen” Plaintiff) now notes that plaintiffs must, with some exceptions, plead and prove the absence of probable cause, citing Ballentine v. Tucker, 28 F.4th 54 (9th Cir. 2022). It also discusses Boquist v. Courtney regarding speech by elected officials and but/for causation.
  • The Comment to Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force) was rewritten to note Estate of Aguirre v. County of Riverside, 29 F.4th 624 (9th Cir. 2022), Andrews v. City of Henderson, 35 F.4th 710 (9th Cir. 2022), and Lombardo v. City of St. Louis, Missouri, 141 S. Ct. 2239 (2021).
  • The Comment to Instruction 9.26 (Particular Rights—Eighth Amendment—Convicted Prisoner’s Claim of Excessive Force) was rewritten to note Coston v. Nangalama, 13 F.4th 729 (9th Cir. 2021), and Hughes v. Rodriguez, 31 F.4th 1211 (9th Cir. 2022).
  • The Comment to Instruction 9.30 (Particular Rights—Fourteenth Amendment—Pretrial Detainee’s Claim Re Conditions of Confinement/Medical Care) now ends: "While there is 'no § 1983 liability for simply acting contrary to prison policy,' the standardized medical procedures of a prison can 'help to underscore' that prison officials 'had access to facts from which a reasonable person would infer' that a particular patient 'was at serious medical risk.' Russell v. Lumitap, 31 F.4th 729, 742 (9th Cir. 2022)."
  • The Comment to Instruction 9.32 (Particular Rights—Fourteenth Amendment—Due Process—Interference with Parent/Child Relationship) has been extensively rewritten.
  • The Comment to Instruction 9.34 (Qualified Immunity) now cites Ballentine v. Tucker, 28 F.4th 54 (9th Cir. 2022) and Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021) regarding the required showing that a right was clearly established).
  • The last paragraph of Instruction 10.2 (Civil Rights—Title VII—Disparate Treatment—With Affirmative Defense of “Same Decision”) has been revised as follows:
    The defendant has the burden of proving by a preponderance of the evidence both that the defendant would have [made the same defendant’s decision] [taken the same to [state adverse action] regardless of the plaintiff’s [protected characteristic], unless the defendant also has proven was motivated by a preponderance of the evidence lawful reason and that the defendant would have [made the same decision] [taken the same to [state adverse action] regardless of the plaintiff’s [protected characteristic]. even if the plaintiff’s [race] [color] [religion] [sex] [national origin] had played no role in the defendant’s decision to [state adverse action].
  • The sentence that precedes the "Major Life Activies" paragraph of Instruction 12.1A (ADA Employment Actions—Actual Disability—Elements) now reads: "If, on the other hand, the plaintiff has failed to prove any one of these elements, your verdict should be for the defendant."
  • The Comments to Instructions 12.1A, 12.1B (ADA Employment Actions—Record of Disability—Elements), and 12.1C (ADA Employment Actions—Regarded as Disability—Elements) now cite Shields v. Credit One Bank, N.A., 32 F.4th 1218 (9th Cir. 2022).
  • The second sentence of Instruction 15.13 (Infringement—Elements—Ownership—Generally) now reads "A person acquires the right to exclude others from using a trademark by being the first to use lawfully it [sic] in the marketplace or by lawfully using it before the alleged infringer." The Comment now cites Lodestar Anstalt v. Bacardi & Co., 31 F.4th 1228 (9th Cir. 2022), re "extensive use date" and "extension of protection," and ends with three new paragraphs regarding Lodestar, AK Futures LLC v. Boyd Street Distro, LLC, 35 F.4th 682 (9th Cir. 2022), and the Madrid Protocol.
  • Instruction 15.26 (Defenses—First Sale) is new.
  • A new sentence has been added at the end of Instruction 17.17 (Copying—Access and Substantial Similarity): "If you find that the plaintiff has failed to prove either access to the plaintiff’s copyrighted work or substantial similarities between the defendant’s work and original elements of the plaintiff’s work, your verdict should be for the defendant." The Comment indicates that this was based on Gray v. Hudson, 28 F.4th 87 (9th Cir. 2022).
  • The Comment to Instruction 17.19 (Substantial Similarity—Extrinsic Test; Intrinsic Test) now references Gray.
  • The Comment to Instruction 18.3 (Securities—Misrepresentations or Omissions—Materiality) now ends: "The Ninth Circuit has also held that when plaintiffs make claims about the impact of highly technical information on investment decisions, they must provide enough context to make clear why investors would find one set of technical information meaningfully different from another set of technical information. See In re Nektar Therapeutics Securities Litigation, 34 F.4th 828, 837 (9th Cir. 2022)."

The prior version is archived here.

(09/09/22) (permalink)