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November 2021 revisions to Massachusetts district court criminal model jury instructions

Massachusetts has posted a November 2021 edition of its district court criminal model jury instructions. The following instructions are new in this edition:

• 1.105 COVID-19 Supplemental Impanelment Instruction
• 3.610 Authentication of Digital Evidence
• 6.205 Battery to intimidate another based on bias
• 6.530 Secretly Photographing a Nude or Partially Nude Person
• 6.535 Secretly Surveilling Under or Around Clothing
• 6.570 Kidnapping G.L. c. 265, §26 [clauses 1 & 2]
• 6.575 Kidnapping G.L. c. 265, §26 [clause 3]
• 7.370 Interfering with a Police Officer
• 7.670 Carrying a Loaded Firearm While Under the Influence
• 7.810 Distribution of Marijuana
• 7.815 Furnishing Marijuana to Person Under 21
• 7.825 Possession of Marijuana
• 7.830 Possession with Intent to Distribute Controlled Substance Other than Marijuana
• 7.835 Possession with Intent to Distribute Marijuan

The following instructions have been revised:

• 3.840 Consideration of Business Records
• 7.540 Possession of Child Pornography
• 7.630 Improper Storage of a Firearm
• 7.800 Distribution, manufacturing, or cultivating a controlled substance other than marijuana
• 7.820 Possession of a controlled substance other than marijuana
• 7.860 School zone drug violation
• 7.870 Park or playground drug violation
• 8.520 Larceny by stealing

Many of the instructions have been renumbered. The prior (January 2020) version is archived here

(11/27/21) (permalink)

 

The comment on the right to remain silent in the Rittenhouse trial

As this post is being written, the jury is deliberating, and the prosecution has filed a motion for a mistrial with prejudice based in part on the cross-examination of the defendant on the witness stand about his post-arrest silence. Although the motion itself does not identify the constitutional right involved, much comment on the matter identifies it as a Fifth Amendment self-incrimination issue (or, more specifically, since this is a state case, a violation of the Fifth Amendment right to remain silent incorporated by the Fourteenth Amendment Due Process Clause).

I do not believe that there is a self-incrimination issue here. It is well established that a criminal defendant who has taken the witness stand can be impeached with evidence of post-arrest silence. Fletcher v. Weir, 455 U.S. 603 (1982).

There is a clear constitutional violation, though, but it is a due process, not self-incrimination, violation. Rittenhouse turned himself in, and was accordingly warned of his constitutional rights, including the right to remain silent. It is well established that comments on a defendant's silence violate due process (not self-incrimination) if the silence occurs after the defendant was advised of a right to remain silent. Doyle v. Ohio, 426 U.S. 610 (1976).

We know that Rittenhouse received this warning because of press reports and YouTube videos. I have not watched much of the trial, and don't know whether the warning, an essential element of the constitutional claim, is part of the formal trial record. If it was my case, I would make sure to identify this as a Doyle issue, and to put the warning on the record.

(11/17/21) (permalink)

 

Ninth Circuit updates its criminal instructions

As noted below, the Ninth Circuit posts quarterly updates of its Manuals of Model Jury Instructions, and recently posted the "September 2021" revisions of both its civil and criminal instructions. Here are the criminal changes:

• The first part of the Comment to Instruction 3.5 (REASONABLE DOUBT—DEFINED) now cites United States v. Velazquez, 1 F.4th 1132 (9th Cir. 2021), emphasizing that the model instruction has been repeatedly upheld.
• The enumerated elements section of Instruction 8.47A (MAILING THREATENING COMMUNICATIONS-THREATS TO KIDNAP OR INJURE) now reads:

  First, the defendant knowingly [mailed] [arranged to have mailed] a [letter] [insert other form of communication] addressed to [insert name or title of natural person] containing a threat to [kidnap] [injure] any person.; and

  Second, the defendant intended to communicate a threat by such [insert form of communication] was transmitted for the purpose of issuing a threat, or with knowledge that the [insert form of communication] would be viewed as a threat.

  This was apparently done to reflect language in United States v. Bachmeier, 8 F.4th 1059 (9th Cir. 2021) (subjective intent to threaten is the required mental state, not mere knowledge that the communication would be viewed as a threat).
• The Comment to Instruction 8.73 (FALSE STATEMENT TO GOVERNMENT AGENCY) now expands its discussion of intent and Bryan v. United States, 524 U.S. 184 (1998), emphasizing that specific intent does not require evil intent, but only that the defendant act deliberately and knowingly.
• Instruction 8.191 has been renamed TRANSPORTATION OR ATTEMPTED TRANSPORTATION FOR PROSTITUTION OR SEXUAL ACTIVITY, and the elements list has been rewritten as follows:

  First, the defendant knowingly [transported] [attempted to transport] a person in [interstate] [foreign] commerce; [and]

  Second, the defendant [transported] [attempted to transport] a person with the intent that such person engage in [prostitution] [any describe proposed sexual activity for which a person can be][.] [;] [;and] [Third, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense][.] [; and] a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]].

  [ThirdFourth, the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.

  The Comment excplains that this change was occasioned by the holding in United States v. Lopez, 4 F.4th 706 (9th Cir. 2021) (while the district court was not required to instruct the jury on the elements of the particular predicate offense as if they were elements of the offense charged, the district court nonetheless erred in failing to instruct the jury on the applicable criminal laws of Guam against which the defendant's proposed sexual conduct was to be evaluated). "The bracketed language stating an additional element applies only when the charge is an attempt."

• The elements list for Instruction 8.192 (PERSUADING OR COERCING TO TRAVEL TO ENGAGE IN PROSTITUTION OR SEXUAL ACTIVITY) now reads:

  [That [First, that [on] [between] [insert dates alleged] the defendant knowingly [persuaded] [induced] [enticed] [coerced] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [any describe proposed sexual activity for which any person can be charged with a criminal offense, that is [insert title of sexual offense].] or ;and]

  [Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity]]].

  or

  [First, that [on] [between] [insert dates alleged] the defendant knowingly attempted to [persuade] [induce] [entice] [coerce] an individual to travel in [interstate] [foreign] commerce to engage in [prostitution] [any describe proposed sexual activity for which any person can be]; and

  [Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could have been charged with a criminal offense, that is [insert title of sexual offense]; and offense under the laws of [the United States] [insert the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual activity].

  [Second,/Third], the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.]

  The Comment explains how this change was occasioned by Lopez. id.

• The elements list for Instruction 8.192A (USING OR ATTEMPTING TO USE THE MAIL OR A MEANS OF INTERSTATE COMMERCE TO PERSUADE OR COERCE A MINOR TO TRAVEL TO ENGAGE IN PROSTITUTION OR SEXUAL ACTIVITY) now reads:

  First, that [on][between] [insert dates alleged] the defendant [used] [attempted to use] [the mail] [a means or facility of [interstate][foreign] commerce, that is [insert means or facility of interstate or foreign commerce]], to knowingly [persuade] [induce] [entice] [coerce] an individual to engage in [prostitution][any describe proposed sexual activity for which someone]; [and]

  [Second, that [if the sexual activity had occurred] [based upon the sexual activity that occurred], the defendant could be have been charged with an a criminal offense, that is under the laws of [the United States] [insert title of the state or territory]. [In [state or territory], it is a criminal offense to [describe proposed sexual offense]]; activity]; [and]

  [[Second,/Third], the individual the defendant [persuaded] [induced] [enticed] [coerced] was under the age of 18.]

  or

  [[Second,/Third], the defendant believed that the individual [he][she] attempted to [persuade] [induce] [entice] [coerce] was under the age of 18; and

  [[Third,/Fourth], the defendant did something that was a substantial step toward committing the crime and that strongly corroborated the defendant’s intent to commit the crime.

  The Comment explains how this change was occasioned by Lopez. id.

The prior versions of these instructions are archived here.

(11/09/21) (permalink)

 

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)

 

California posts an October 2021 Supplement to its Criminal Instructions

California posted the 2021 edition of its Criminal Jury Instructions (CALCRIM) last Spring. This month it posted an October 2021 Supplement.

Instructions 2045 (False Personation (Pen. Code, § 530)) and 3185. (Sex Offenses: Sentencing Factors—Using Force or Fear Against Minor Under 14 Years/14 Years or Older (Pen. Code, §§ 264.1(b), 286(c)(2)(B)&(C), 286(d)(2)&(3), 287(c)(2)(B)&(C), 287(d)(2)&(3), 289(a)(1)(B)&(C))) are new.

The revised instructions are:

• 336 (In-Custody Informant)
• 417 (Liability for Coconspirators’ Acts)
• 582 (Involuntary Manslaughter: Failure to Perform Legal Duty—Murder Not Charged (Pen. Code, § 192(b)))
• 625 (Voluntary Intoxication: Effects on Homicide Crimes (Pen. Code, § 29.4))
• 775 (Death Penalty: Intellectual Disability (Pen. Code, § 1376))
• 840 (Inflicting Injury on Spouse, Cohabitant, or Fellow Parent Resulting in Traumatic Condition (Pen. Code, § 273.5(a)))
• 852A (Evidence of Uncharged Domestic Violence)
• 1001 (Rape or Spousal Rape in Concert (Pen. Code, § 264.1))
• 1015 (Oral Copulation by Force, Fear, or Threats (Pen. Code, § 287(c)(2) & (3), (k)))
• 1016 (Oral Copulation in Concert (Pen. Code, § 287(d)))
• 1030 (Sodomy by Force, Fear, or Threats (Pen. Code, § 286(c)(2), (3), (k)))
• 1031 (Sodomy in Concert (Pen. Code, § 286(d)))
• 1045 (Sexual Penetration by Force, Fear, or Threats (Pen. Code, § 289(a)(1), (2), (g)))
• 1046 (Sexual Penetration in Concert (Pen. Code, §§ 264.1, 289(a)(1)))
• 1201 (Kidnapping: Child or Person Incapable of Consent (Pen. Code, § 207(a), (e)))
• 1215 (Kidnapping (Pen. Code, § 207(a)))
• 1243 (Human Trafficking (Pen. Code, § 236.1(a) & (b)))
• 1244 (Causing Minor to Engage in Commercial Sex Act (Pen. Code, § 236.1(c)))
• 1807 (Theft From Elder or Dependent Adult (Pen. Code, § 368(d), (e)))
• 1930 (Possession of Forged Document (Pen. Code, § 475(a)))
• 2100 (Driving a Vehicle or Operating a Vessel Under the Influence Causing Injury (Veh. Code, § 23153(a), (f), (g)))
• 2200 (Reckless Driving (Veh. Code, § 23103(a) & (b)))
• 2656 (Resisting Peace Officer, Public Officer, or EMT (Pen. Code, § 148(a)))
• 3411 (Mistake of Law As a Defense)
• 3451 (Present Mental Competence of Defendant)

(10/16/21) (permalink)

 

Third Circuit revised civil instructions

The Third Circuit has posted a number of revisions to its model civil jury instructions. Although they just went up, the changes are labeled as August 2020.

• A new paragraph has been added at the end of Instruction 3.1 (General Instructions For Use At End of Trial-Deliberations) regarding United States v. James, 955 F.3d 336 (3d Cir. 2020), which approved the the removal of a juror after the jury had been polled.
• The Comment to Instruction 4.4 (Section 1983-Action under Color of State Law) now cites Davis v. Samuels, 962 F.3d 105, 111-12 & n.4 (3d Cir. 2020) (stating “[w]e are deeply skeptical” of the district court’s conclusion that operators of a private prison are not government actors and noting that the “Supreme Court has not held that private prison operators cannot be liable for damages under Bivens because they are not ‘federal actors’”).
• Notes in Instruction 4.6.3 (Section 1983-Liability in Connection with the Actions of Another-Municipalities-General Instruction) suggest omitting language where the jury is being instructed on a theory of inadequate training or supervision, citing Forrest v. Parry, 930 F.3d 93 (2019). This is explained at the end of the Comment. "In light of Forrest, a district court might consider avoiding such confusion by keeping any instruction on a policy or custom claim distinct from any instruction on an inadequate training or supervision claim."
• A note in Instruction 4.6.7 (Section 1983-Liability in Connection with the Actions of Another-Municipalities-Liability Through Inadequate Training or Supervision) suggests that in light of Forrest, courts consider instructing the jury that “[plaintiff] claims that [municipality] failed to [adequately train] [adequately supervise] its employees, and that this failure caused the violation of [plaintiff’s] [specify right].” Readers are directed to the discussion of Forrest in the Comment to Instruction 4.6.3.
• A similar note appears in Instruction 4.6.8 (Section 1983-Liability in Connection with the Actions of Another-Municipalities-Liability Through Inadequate Screening).
• The Comment to Instruction 4.7.1 (Section 1983-Affirmative Defenses-Conduct Not Covered by Absolute Immunity) now cites Fogle v. Sokol, 957 F.3d 148 (3d Cir. 2020) (holding that arranging a hypnosis session to procure a statement and encouraging troopers to solicit false statements from jailhouse informants were not protected by absolute immunity, while failing to report inconsistencies to a magistrate judge and various misconduct at hearings and at trial were protected).
• Instruction 4.7.2 (Section 1983-Affirmative Defenses-Qualified Immunity) now cites Thomas v. Tice, 948 F.3d 133, 141 (3d Cir. 2020) (denying qualified immunity because defendants “failed to present evidence of any continuing penological interest” in keeping a prisoner in a dry cell (a cell that lacks any water) to discover suspected swallowed contraband after four days and twelve bowel movements had produced no evidence of contraband); James v. New Jersey State Police, 957 F.3d 165 (3d Cir. 2020) (holding that officer was protected by qualified immunity because case was most similar to Kisela, officer knew that the man he shot (1) had violated a restraining order; (2) possessed a firearm that he had brandished within the last hour; and (3) was reportedly mentally ill and may have been off his medication, and distinguishing Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002), in part because of this knowledge); and Williams v. City of York, 967 F.3d 252 (3d Cir. 2020) (holding that defendants alleged to have made arrest without probable were protected by qualified immunity because of uncertainty in state law).
• The Comment to Instruction 4.9 (Section 1983-Excessive Force (Including Some Types of Deadly Force)-Stop, Arrest, or other “Seizure”) now cites Williams v. City of York, 967 F.3d 252 (3d Cir. 2020) (holding that it was reasonable for officers responding to a shots-fired call to (1) throw the plaintiff to the ground because she ran and pounded on the door of a house rather than comply with an order to get on the ground and (2) fail to loosen her handcuffs because the defendants were not notified she was in pain).
• The Comment to Instruction 4.11.1 (Section 1983-Conditions of Confinement-Convicted Prisoner-Denial of Adequate Medical Care) now cites Dooley v. Wetzel, 957 F.3d 366, 375 (3d Cir. 2020) (stating that claimed “depression, pain, trauma, lack of sleep, nightmares, paranoia, and related mental health issues could constitute the requisite serious medical need if diagnosed or if the need for greater treatment would be obvious to a lay person” and that guilty but mentally ill jury verdict and comments by sentencing judge may show that mental health problems at one point were obvious to lay people).
• The Comment to Instruction 4.12.1 (Section 1983 – Unlawful Seizure – Terry Stop and Frisk) has a discussion of In Kansas v. Glover, 140 S. Ct. 1183 (2020) (reasonable to infer that the driver of a car is likely its owner). The rest of the Comment has been substantially rewritten.
• Instruction 5.0 (Title VII Introductory Instruction) adds sexual orientation or transgender status to the types of discrimination, based on Bostock v. Clayton County, 140 S.Ct. 1731 (2020). It also discusses the affirmative defense barring the government from interfering with the decision of a religious group to fire one of its ministers, citing Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020), and but-for causation in Babb v. Wilkie, 140 S.Ct. 1168 (2020).
• The Comment to Instruction 5.1.1 (Elements of a Title VII Claim-Disparate Treatment-Mixed-Motive) now ends by noting cases that have applied Staub v. Proctor Hosp., 131 S.Ct. 1186, 1194 (2011).
• Instruction 5.1.4 (Elements of a Title VII Action — Harassment — Hostile Work Environment — Tangible Employment Action) now deletes the seventh element:

  [For use when the alleged harassment is by non-supervisory employees:

  Seventh: Management level employees knew, or should have known, of the abusive conduct. Management level employees should have known of the abusive conduct if 1) an employee provided management level personnel with enough information to raise a probability of [protected class] harassment in the mind of a reasonable employer, or if 2) the harassment was so pervasive and open that a reasonable employer would have had to be aware of it.]

• The Comment to Instruction 5.1.7 (Elements of a Title VII Claim — Retaliation) now notes Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001) (after holding plaintiff’s conduct unprotected by the opposition clause because the plaintiff could not have reasonably believed the challenged employer actions to be illegal, the Supreme Court went on to consider plaintiff’s participation claim based on the same employer action). It also observes that Komis v. Sec'y of United States Dep't of Labor, 918 F.3d 289, 294 (3d Cir. 2019), "did not focus on the causation standard for a retaliation claim although the Court has held that motivating factor causation governed to federal employee discrimination claims under that statute."
• The Comment to Instruction 6.0 (Section 1981 Introductory Instruction) notes that Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694 (2012), covers discriminatory refusals to hire, and concludes with a discussion of Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020).
• Instruction 6.1.1 (Elements of a Section 1981 Claim-Disparate Treatment-Mixed-Motive) has been deleted.
• Instruction 6.1.2 (Elements of a Section 1981 Claim-Disparate Treatment-Pretext) no longer references Instruction 6.1.1. A new section on causation discussing Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S.Ct. 1009 (2020), is added to the Comment.
• Instruction 6.1.3 (Elements of a Section 1981 Claim-Harassment-Hostile Work Environment-Tangible Employment Action) deletes the paragraph regarding harassment is by non-supervisory employees.
• Most of the section of the Comment to Instruction 6.1.6 (Elements of a Section 1981 Claim — Retaliation) regarding determinative effect has been replaced with a reference to Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S.Ct. 1009 (2020).
• The Comment to Instruction 7.0 (Section 1983 Employment Discrimination) now ends with a paragraph discussing sexual orientation and transgender status, citing Bostock v. Clayton County, 140 S.Ct. 1731 (2020).
• The second and third paragraphs of the Comment to Instruction 7.1 (Section 1983 Employment Discrimination–Mixed Motive) has been rewritten in light of Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S.Ct. 1009 (2020), and Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1915 (2020).
• The Comment to Instruction 7.4 Employment (Discrimination – Retaliation – First Amendment) deletes the reference to Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016), and adds references to Ali v. Woodbridge Twp. Sch. Dist., 957 F.3d 174 (3d Cir. 2020), and Javitz v. Cty. of Luzerne, 940 F.3d 858 (3d Cir. 2019).
• The optional seventh element (harassment is by non-supervisory employees) of Instruction 8.1.2 (Elements of an ADEA Claim — Harassment — Hostile Work Environment — Tangible Employment Action) has been removed. The change is briefly noted in the Comment.
• The phrase "and failed to take prompt and adequate remedial action" has been added to the sixth element of Instruction 8.1.3 (Elements of an ADEA Claim — Harassment — Hostile Work Environment — No Tangible Employment Action), and users are instructed to omit the employer's affirmative defense where that instruction is given.
• A new "Causation for Federal Employees" section has been added to the Comment to Instruction 8.1.5 (Elements of an ADEA Claim — Retaliation) that cites Babb v. Wilkie, 140 S.Ct. 1168 (2020), and Gomez-Perez v. Potter, 128 S.Ct. 1931 (2008).
• The last sentence of the first paragraph of the Comment to Instruction 8.3.2 (ADEA Defenses — Bona Fide Seniority System) has been revised as follows: "See also Hazen Paper Co. v. Biggins, 507 U.S. 604, 616 (1993) (rejecting a claim of age discrimination where to the extent the challenged employment practice was based on the product of a bona fide plaintiff’s seniority system). See also Dalton v. Mercer County Board of Educ., 887 F.2d 490, 492 (4th Cir. 1989) (choosing an applicant with the most seniority pursuant to a bona fide statutory seniority system is not a violation of ADEA) not his age)."
• The "Religious Entities; Ministerial Exception" section of the Comment to Instruction 9.0 (ADA Employment Claims-Introductory Instruction) now cites Our Lady of Guadalupe v. Morrissey-Berru, 140 S.Ct. 1149 (2020), and Fort Bend Cty. v. Davis, 139 S.Ct. 1843 (2019).
• The Comment to Instruction 9.1.1 (Elements of an ADA Claim-Disparate Treatment-Mixed-Motive has been rewritten to reflect Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S.Ct. 1009 (2020), and Babb v. Wilkie, 140 S. Ct. 1168 (2020). A reference to (deleted) Instruction and Comment 6.1.1 has been removed. The "Animus of Employee Who Was Not the Ultimate Decisionmaker" section notes the continuing validity of Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), and concludes: "Thus, it is unclear whether the ruling in Staub would extend to mixed-motive claims under the ADA. No Third Circuit precedential decision focuses on the applicability of this theory to ADA cases."
• The ninth element (harassment by non-supervisory employees) of Instruction 9.1.4 (Elements of an ADA Claim — Harassment — Hostile Work Environment — Tangible Employment Action) has been deleted.
• The Comment to Instruction 9.1.7 (Elements of an ADA Claim — Retaliation) now discusses Comcast Corp. v. Nat'l Ass'n of African American-Owned Media, 140 S.Ct. 1009 (2020), and Babb v. Wilkie, 140 S.Ct. 1168 (2020).
• The discussion of transitory and minor impairment in Instruction 9.2.1 (ADA Definitions — Disability) has been rewritten, and now concludes: "In deciding whether an impairment is 'minor,' you should look to factors such as the symptoms and severity of the impairment, the type of treatment required, the risk involved, and whether any kind of surgical intervention is anticipated or necessary—as well as the nature and scope of any post-operative care." The Comment attributes this to Eshleman v. Patrick Indus., 961 F.3d 242 (3d Cir. 2020).
• A note at the beginning of Chapter 10 (FMLA) states: "These instructions and associated commentary address the Family & Medical Leave Act as amended through 2019. In 2020, as part of the federal response to the Covid-19 pandemic, Congress passed the Families First Coronavirus Response Act, 116 P.L. 127, 2020 Enacted H.R. 6201, 116 Enacted H.R. 6201, 134 Stat. 178, which included the Emergency Family and Medical Leave Expansion Act as well as the Emergency Paid Sick Leave Act. Since the Emergency FMLA, effective from April 1, 2020 until December 31, 2020, departs in significant respects from the 'permanent' FMLA, these instructions do not purport to apply to claims under that statute."
• The "Ministerial exception" section of the Comment to Instruction 10.0 (FMLA Introductory Instruction) has been rewritten consistent with Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 1149 (2020).
• The introductory note to Chapter 11 and the Comment to Instruction 11.0 (Equal Pay Act Introductory Instruction) state that is is "not clear" whether Bostock v. Clayton County, 140 S. Ct. 1731 (2020) applies to the EPA.

(09/27/21) (permalink)

 

Eighth Circuit posts the 2020 edition of its Criminal Instructions

The Eighth Circuit has posted the 2020 Edition of its Model Criminal Jury Instructions (I know we are eight plus months into 2021, but thats how some courts to do this sort of thing). This replaces the 2017 Edition and the September 2019 Supplement that were previously posted on the Eighth Circuit jury instruction page (they are archived here).

The following list of changes includes the ones that were part of the September 2019 Supplement. It does not note inconsequential additions of case authority:

• Instruction 2.08 now emphasizes that similar acts can be proved by a lesser standard than proof beyond a reasonable doubt. Also, the second paragraph has been rewritten:

  If you find that this evidence has not been proved, you must disregard it. If you find this evidence has been proved, then you may consider it to help you decide (only for the limited purpose of deciding whether [defendant] [had the state of mind or intent necessary to commit the crime charged in the indictment]; or [had a motive or opportunity to commit the acts described in the indictment]; or [acted according to a plan or in preparation for commission of a crime]; or [committed the acts [he] [she] is on trial for by accident or mistake];or[ describe other permissible purpose under 404(b) for which evidence has been admitted.)]. You should give it the weight and value you believe it is entitled to receive. If you find that this evidence has not been proved, you must disregard it.

• Instruction 3.14 DATE OF CRIME CHARGED is new.
• The Notes on Use section for Instruction 5.06A-1 CONSPIRACY: ELEMENTS (18 U.S.C. § 371) now cites Whitfield v. United States, 543 U.S. 209 (2005).
• The first two elements of 6.15.77q(a) AND 78j(b) SECURITIES FRAUD (15 U.S.C. § 77Q(a), 15 U.S.C. § 78J(b), AND 17 C.F.R. § 240.10b-5) have been conflated into one element as follows:

  The crime of securities fraud, as charged in [Count _____ of] the indictment, has four three elements, which are:

  One, the defendant [[offered] [or] [sold] securities] [[purchased] [or] [sold] securities] (describe securities referenced in the indictment);

  Two, in connection with the [[offer] [or] [sale]] [[purchase] [or] [sale]] of the securities (describe securities referenced in the indictment), the defendant, directly or through others: ....

  The Notes on Use section of that Instruction now cites United States v. Gruenberg, 989 F.2d 971, 976 (8th Cir. 1993) (approving jury instruction requiring that the defendant’s fraudulent conduct be “in connection with” with the purchase or sale of a security as proscribed by Section 10(b) and Rule 10b-5).
• The Notes on Use section of Instruction 6.18.113(3) ASSAULT WITH A DANGEROUS WEAPON now concludes:

  A panel decision of the Eighth Circuit has held that a district court did not abuse its discretion by defining “dangerous weapon” as “any object capable of being readily used by one person to inflict bodily injury upon another person.” United States v. Page Spotted Horse, 916 F.3d 686, 692 (8th Cir. 2019) (rehearing denied). The Spotted Horse panel specifically rejected the argument that Hollow’s more restrictive definition (“...used in a manner likely to endanger life or inflict serious bodily harm”) controls.

• The Notes on Use section of Instruction 6.18.666A THEFT CONCERNING A PROGRAM RECEIVING FEDERAL FUNDS now cites Kelly v. United States, 140 S. Ct. 1565 (2020).
• The title to Instruction 6.18.922A is now FELON OR OTHER PROHIBITED PERSON IN POSSESSION OF FIREARM OR AMMUNITION, and adds a new knowledge element: "[he][she] knew [he][she] had been convicted of a crime punishable by imprisonment for more than one year (or describe other prohibited status)." It also contains optional language for cases where the parties have stipulated to that element. The Notes on Use section
  • lists the prohibited statuses
  • notes Rehaif v. United States, 139 S. Ct. 2191 (2019), in its explanation of the new knowledge element, and notes the potential consequences of a failure to stipulate to that element
  • notes that "[t]he government may meet its burden of proving that the firearm was 'in commerce or affecting commerce' by showing that at any time during or prior to its possession by the defendant, the firearm was transported from one state to another. United States v. Leathers, 354 F.3d 955, 959 (8th Cir. 2004)."
  • the discussion of justification now uses the term "legal justification"
  • expands the discussion of multiple punishments for a single act of possession of a firearm
  • clarifies that possession, not ownership, is the crime
• Two instructions (6.18.924C-1 FIREARMS—POSSESSION IN FURTHERANCE OF A CRIME OF VIOLENCE/DRUG TRAFFICKING OFFENSE and 6.18.924C-2 FIREARMS—USE OR CARRY A FIREARM DURING A CRIME OF VIOLENCE/DRUG TRAFFICKING OFFENSE) replace the former single instruction (6.18.924C FIREARMS—POSSESSION IN FURTHERANCE OF A CRIME OF VIOLENCE/ DRUG TRAFFICKING OFFENSE). Consequently, the extensive changes are to the instructions, notes, and comments are too extensive to be summarized here.
• The Notes on Use sections of Instruction 6.18.1001B FALSE STATEMENT TO A FEDERAL AGENCY and 6.18.1001C USING A FALSE DOCUMENT now cite with approval the definition of willfully set out in United States v. Benton, 890 F.3d 697, 714-15 (8th Cir. 2018). The Notes on Use section of the latter instruction now notes the legislative overruling of Hubbard v. United States, 514 U.S. 695 (1995).
• The Notes on Use section of Instruction 6.18.1343 WIRE FRAUD now notes Kelly v. United States, 140 S.Ct. 1565 (2020).
• The intent element to Instruction 6.18.1347 HEALTH CARE FRAUD now reads "knowingly, voluntarily and intentionally." Accordingly, some of the prior discussion of willfulness is omitted from the Notes on Use section of Instruction. It also now omits passages declaring that an "affected commerce" is proved if the money obtained through execution of the scheme was paid through a financial institution insured by the FDIC.
• Instructions 6.18.1591 SEX TRAFFICKING OF CHILDREN OR BY FORCE, FRAUD, OR COERCION and 6.18.1956K CONSPIRACY TO LAUNDER MONEY are new.
• Instruction 6.18.2250 has been retitled "FAILURE TO REGISTER UNDER SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA) (18 U.S.C. § 2250(a)))." It has been thoroughly rewritten; the changes cannot be concisely summarized here.
• The Notes on Use section of Instruction 6.18.2252 RECEIPT, POSSESSION OR DISTRIBUTION OF MATERIAL CONTAINING CHILD PORNOGRAPHY discussion of mens rea has been rewritten consistent with United States v. Collier, 932 F.3d 1067 (8th Cir. 2019).
• The discussion of intent to distribute in the Notes on Use section of Instruction 6.21.841A CONTROLLED SUBSTANCES—POSSESSION WITH INTENT TO DISTRIBUTE has been updated. There is also a new discussion of possession as a lesser included, and special considerations that apply when physicians are charged (noting the good faith instruction in United States v. Smith, 573 F.3d 639 (8th Cir. 2009)).
• Instructions 6.21.841A.1 to 6.21.841D were completely rewritten; the changes cannot be concisely summarized here.
• The elements list in Instruction 6.26.5861 FIREARMS-POSSESSION OF UNREGISTERED FIREARMS now reads"

  The crime of [possession of] [receiving] an unregistered firearm, as charged in Count _____ of the Indictment, has four five elements, which are

  One, on or about [date], the defendant knew [he][she] had the knowingly possessed a [firearm in [his][her] possession;][destructive device];

  Two, the defendant knew weapon was [describe the type of firearm was a [ as one defined in 26 U.S.C. § 5845(a) for which registration is required];

  Three, the defendant knew the firearm was a [describe the type of firearm, e.g. short-barreled shotgun] [short-barreled rifle][ or machine gun][silencer][destructive device];]

  Three Four, the firearm [was capable of operating as designed] [could readily be put in operating condition]; and

  Five, the firearm was not registered to the defendant in the National Firearms Registration and Transfer Record.

  The Notes on Use section was substantially rewritten, and now notes United States v. White, 863 F.3d 784 (8th Cir. 2017) (en banc).

(09/07/21) (permalink)

 

Updated Eighth Circuit Civil FLSA Instructions

Eighth Circuit jury instructions are linked on the official Eighth Circuit Jury Instruction site in pdf and docx formats. The official civil instructions are labeled as "[r]eflecting changes made through October 22, 2020." But recently, without updating the title page, they made some significant changes to their FLSA Instructions:

• There are a number of unconsequential edits to the Comment to Instruction 16.00 (EMPLOYMENT-FAIR LABOR STANDARDS ACT-OVERVIEW). More substantively, it now cites Kisor v. Wilkie, 139 S.Ct. 2400 (2019). It also adds "In some instances, an individual may be deemed to be employed by more than one employer in a 'joint employment' relationship. See 29 C.F.R. § 791.2 (2020) (describing two joint employer scenarios)." under "Employee and Enterprise Coverage." Finally, it includes the following under "Misclassification Cases":

  Exemptions are At one time courts consistently held that exemptions were to be narrowly construed against the employer and the employer carries the burden of proving an exemption applies. See, e.g., McDonnell v. City of Omaha, 999 F.2d 293, 295 (8th Cir. 1993) (Employers have the burden of proving that the exemption applies, and they must demonstrate that their employees fit “plainly and unmistakably within the exemption’s terms and spirit.”). This “narrow construction” was rejected by the Supreme Court in Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134 (2018). There, the Court observed that the FLSA’s numerous exemptions “are as much a part of the FLSA’s purpose as the overtime-pay requirement. . . . Because the FLSA gives no ‘textual indication’ that its exemptions should be construed narrowly, there is no reason to give them anything other than a fair (rather than ‘narrow’) interpretation.” Id. at 1142.

  Exemptions involve issues of law and fact. “Disputes regarding the nature of an employee's duties are questions of fact, but the ultimate question whether an employee is exempt under the FLSA is an issue of law.” Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1081 (8th Cir. 2000) (citing Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) (“The question of how the respondents spent their time working...is a question of fact. The question whether their particular activities excluded them from the overtime benefits of the FLSA is a question of law . . . .”)). Accordingly, Instruction No. 16.07 is prepared to enable the court to submit any material, disputed factual issues to the jury, with the court then making the legal determination by considering any facts that are undisputed along with the special findings from the jury with respect to any disputed material facts.

  The minimum wage in Instruction 16.02 is updated to reflect the current wage.

  The Notes on Use for Instruction 16.05 (EXPLANATORY: SALARY BASIS) now begins:

  This instruction is intended for use only where there are material factual disputes as to whether the plaintiff was paid on a “salary basis” within the meaning of the FLSA as it pertains to the executive, administrative, or professional exemptions from overtime. See 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541. The instruction should be modified as necessary to appropriately present the material factual issue(s) to the jury. Otherwise, “the ultimate question whether an employee is exempt under the FLSA is an issue of law.” Jarrett v. ERC Properties, Inc., 211 F.3d 1078, 1081 (8th Cir. 2000).

  Instruction 16.06 (EXPLANATORY: DETERMINING EMPLOYEE STATUS) no longer begins with a note cautioning that it is a proposed instruction.

  A new Instruction 16.07 (EXPLANATORY: DETERMINING EXEMPT STATUS) has been added.

  Revised dollar numbers have been inserted in Instructions 16.60 to 16.64.

  Instruction 16.72 (DAMAGES: WILLFUL VIOLATION) has been removed.

  Instruction 16.92 (SPECIAL VERDICT FORM: EMPLOYEE STATUS) no longer begins with a note cautioning that it is a proposed instruction.

  A new Instruction 16.93 (SPECIAL VERDICT FORM: EXEMPT STATUS) has been added.

The former versions of these instructions are archived here.

(09/06/21) (permalink)

 

Wyoming now posts its jury instructions on the Internet

Wyoming jury instructions used to require a subscription to casemaker for access. It looks like they have recently made some sort of deal with fastcase. In any event, the civil, criminal, and juvenile instructions are now free to view on the Internet. The trialdex jury instructions links page has been updated accordingly.

(08/29/21) (permalink)

 

Seventh Circuit posts proposed criminal instructions revisions for public comment

The Seventh Circuit Pattern Criminal Jury Instruction Committee is accepting public comments on its proposed new and revised criminal pattern jury instructions until September 21. Comments should be emailed to jicomments@ca7.uscourts.gov with a subject line of "Pattern Jury Instruction Comment."

The proposed changes are helpfully posted in redline/strikeout.

(08/28/21) (permalink)

 

Updated jury instructions from Washington

Washington posts its jury instructions on an Internet page maintained by Westlaw (you don't need a Westlaw account to access them). A May 2021 update notes changes that are current as of September 2020:

New for this edition are Chapter 21 (Reimbursement of Defense Costs) regarding reimbursement when a defendant successfully defends by raising a claim of self defense, as well as when a law enforcement officer successfully uses the defense of justified force, and Chapter 135 (Animal Cruelty). Significant revisions have been made in the following: Chapter 35 (Crimes Against Persons) to reflect the new crime of felony assault in the fourth degree; Chapter 36 (Harassment, Hate Crimes, and Domestic Violence) to reflect the new crime of hate crime effective July 28, 2019, as well as a statutory change to the definition of domestic violence; Chapter 131 (Identity Theft) to reflect statutory changes that elevate the level of offense when the victim of identity theft is a senior or vulnerable adult; and Chapter 133 (Weapon Offenses) to reflect statutory changes effective July 28, 2019, that expand the definition of unlawful possession of a firearm. The Committee deleted Chapter 31 (Capital Cases) because the death penalty is no longer applicable in Washington State. Individual instructions in other chapters were also revised.

(08/27/21) (permalink)

 

Hawaii posts revised civil instructions

The Hawaii Supreme Court has posted an updated edition of its Civil Jury Instructions ("1999 edition with amendments to 06/03/21"). Changes include a new instruction 14.4 (informed consent), and revisions to 1.2 (preliminary instructions to the jury), 2.6 (no discrimination), 16.19 (wrongful termination), and 16.35 (conviction record discrimination).

(08/21/21) (permalink)

 

Motivation, adverse employment action, and reasonable accommodation under the ADA

The Americans with Disabilities Act (ADA) makes it illegal for employers to discriminate against persons based on real or perceived disabilities who are qualified to do the essential functions of the job, if the employers are or should be aware of the disability. See generally 42 U.S.C. § 12112(a). There are two paths to a valid cause of action. The employee must:

• have (or be regarded to have) a disability, be a qualified individual, and have suffered an adverse employment action because of that disability; or
• have been denied a reasonable accommodation that would make the employee qualified to do the job.

Trialdex has an ADA litigation tool (Q&A) and infographic that walk you through the process of determining whether an employee has an ADA cause of action. A reader emailed me the other day alerting me to an error in the infographic.

Here's an explanation. Under the ADA, an employer who takes an adverse employment action against a disabled employee can defend by producing a nondiscriminatory reason for the adverse employment action. There are, however, cases indicating that a nondiscriminatory reason is not available as a defense where the employer has failed to provide a reasonable accommodation. See Peebles v. Potter, 354 F.3d 761, 767 (8th Cir. 2004) ("the known disability triggers the duty to reasonably accommodate and, if the employer fails to fulfill that duty, we do not care if he was motivated by the disability"); Hollis v. Chestnut Bend Homeowners Ass'n, 760 F.3d 531 (6th Cir. 2014) (FHA reasonable accommodation).

It has also been suggested, notably in Exby-Stolley v. Bd. of Cty. Commissioners, 979 F.3d 784 (10th Cir. 2020) (en banc), that a reasonable accommodation case does not require proof of an independent adverse employment action, which would logically rule out a motivation defense. A failure to offer a reasonable accommodation to an otherwise qualified disabled employee is unlawful discrimination. See also Morrissey v. Laurel Health Care Co., 946 F.3d 292, 299 (6th Cir. 2019) ("plaintiffs need not prove that they suffered an adverse employment action separate from the failure of the employer to reasonably accommodate the employee"); Need I Prove More: Why an Adverse Employment Action Prong Has No Place in a Failure to Accomodate Disability Claim (Hamline Law Review 2013),

I have consequently modified the ADA Q&A and infographic accordingly.

(08/15/21) (permalink)

 

Ninth Circuit June 2021 Model Criminal Instructions revisions include a new instruction applying Rehaif to § 931(a) crimes

The Ninth Circuit posted June 2021 revisions to its criminal instructions this week.

There is a brand new instruction 8.72A FIREARMS—UNLAWFUL POSSESSION OF BODY ARMOR (18 U.S.C. § 931(a)). Notably, it requires proof not just that the defendant knew that the prior conviction was a felony, but that the defendant knew that the prior felony conviction had as an element the use, attempted use, or threatened use of physical force. This was required by United States v. Door, 996 F.3d 606, 615 (9th Cir. 2021), which so extended the Supreme Court's holding in Rehaif.

Many of the revisions to existing instructions have to do with writing style (for example, substituting "For" for "In order for". "After" for "Subsequent to"). Some parentheticals are rewritten to make them read better without changing the meaning. There are substantive changes as well:

• The Comment to Instruction 8.63 (FIREARMS—UNLAWFUL RECEIPT (18 U.S.C. § 922(g))) now cites United States v. Door, 996 F.3d 606 (9th Cir. April 28, 2021).
• The Comment to Instruction 8.71 (FIREARMS—USING, CARRYING, OR BRANDISHING IN COMMISSION OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME) now notes that "[w]ith respect to 18 U.S.C. § 924(c)(1)(B)(i), there is no mens rea requirement that the defendant knew the rifle barrel’s length," citing United States v. Woodberry, 987 F.3d 1231 (9th Cir. 2021).
• The Comment to Instruction 8.72 (FIREARMS—POSSESSION IN FURTHERANCE OF CRIME OF VIOLENCE OR DRUG TRAFFICKING CRIME) also cites Woodberry, which held that the fact that a firearm is a short-barrel rifle is element of offense, but there is no mens rea requirement that the defendant knew the rifle barrel’s length.
• The Comments to Instructions 8.126 (BANK FRAUD—SCHEME TO DEPRIVE BANK OF INTANGIBLE RIGHT OF HONEST SERVICES)and 8.126A (ATTEMPTED BANK FRAUD—SCHEME TO DEPRIVE OF INTANGIBLE RIGHT OF HONEST SERVICES) add this language "Caution: Honest services fraud criminalizes only schemes to defraud that involve bribery or kickbacks. Skilling v. United States, 561 U.S. 358, 408-409 (2010); Black v. United States, 561 U.S. 465, 471 (2010)."
• The discussion of Loughrin in Comment to Instruction 8.127 (BANK FRAUD—SCHEME TO DEFRAUD BY FALSE PROMISES) has been edited as follows: "The Supreme Court held that the government need not prove the defendant intended to defraud a bank, and that Section 1344(2)’s 'by means of' language is satisfied when 'the defendant’s false statement was the mechanism naturally inducing a bank (or custodian of bank property) to part with money in its control.'"
• The Comment to Instruction 8.142A (HOBBS ACT—EXTORTION OR ATTEMPTED EXTORTION BY NONVIOLENT THREAT) adds the following "'[T]hreats of sham litigation, which are made to obtain property to which the defendant knows he has no lawful claim, are ‘wrongful’ under the Hobbs Act.” United States v. Koziol, 993 F.3d 1160, 1170 (9th Cir. 2021).'" It also flags an issue raised in Koziol: “We do not decide whether the Hobbs Act imposes liability absent proof that the defendant knew he was not entitled to the property.”
• The Comment to Instruction 8.143B (HOBBS ACT—AFFECTING INTERSTATE COMMERCE) replaces a citation to Woodberry with "See generally United States v. Tuan Ngoc Luong, 965 F.3d 973, 986 (9th Cir. 2020) (holding that district court did not err by instruction that '[a]n effect on interstate commerce is established by proof of an actual impact, however small, or in the absence of an actual impact, proof of a probable or potential impact. This impact can be slight, but not speculative.')."

(08/14/21) (permalink)

 

Ninth Circuit June 2021 Model Civil Instructions revisions

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 search seizure 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)).

(08/12/21) (permalink)

 

Eleventh Circuit adds a Rehaif element to its § 922(g)(1) instruction

Title 18 U.S.C. §§ 922(g) and 924(a)(2) combine to make it illegal for certain classes of individuals (notably felons and aliens) to possess firearms. In a 2019 case, Rehaif v. United States, the Supreme Court held that the government must show that a defendant knew that he or she had the relevant status when they possessed the firearm. Since then most circuits have revised their § 922(g) instructions accordingly.

The Eleventh Circuit is the latest to do so, having revised criminal instuction O34.6 (Possession of a Firearm or Ammunition by a Convicted Felon 18 U.S.C. § 922(g)(1) as follows:

• The title now reads "Possession of a Firearm or Ammunition by a Convicted Felon 18 U.S.C. § 922(g)(1))," and all referernces to the crime in the body of the instruction are revised accordingly.
• Element 3 now reads "at the time the Defendant possessed the firearm or ammunition, the Defendant knew [he][she] had previously been convicted of a felony."
• A definition of "ammunition" has been added ("ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm").
• The Annotation now concludes: "In a prosecution under 18 U. S. C. § 922(g), 'the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.' Rehaif v. United States, 139 S. Ct. 2191, 2200, 204 L. Ed. 2d 594 (2019)."

(08/11/21) (permalink)

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