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A Detective's Guide to Interrogation Law (2022) covers-in plain language, and with illustrative case examples-every important interrogation law principle.
Law of Confessions (Thomson Reuters), originally published in 1984 and updated every year, is the leading treatise on the admissibility of confessions.

recent blog posts

January 2024
Updated civil instructions from the Eighth Circuit
Updated criminal instructions from the Eighth Circuit
Updated unofficial First Circuit criminal instructions from Maine
The Seventh Circuit has posted an official 2023 edition of its Criminal Instructions
Third Circuit updates Model Civil Chapters 4-6
November 2023
Ninth Circuit has posted revised Model Jury Instructions

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Updated civil instructions from the Eighth Circuit

The Eighth Circuit has updated its Civil and Criminal Model Jury Instructions. The changes to the criminal instructions are described in yesterday's post. The title page of the civil instructions states that they reflect "changes made through July 12, 2023." This Circuit has the custom of a six month or so review period before posting the new instructions online, so that you the July changes get posted the following year. These changes are described below:

  • The "Reasonable Accommodation" section of Instruction 9.00 AMERICANS WITH DISABILITIES ACT OVERVIEW now cites Higgins v. Union Pacific Railroad Co., 931 F.3d 664, 671 (8th Cir. 2019) (railroad engineer’s request to lay off as necessary and receive 24 hours of rest between shifts was unreasonable accommodation that would require railroad to reassign other locomotive engineers “to shifts that they would not have otherwise been scheduled to work”). The "The Interactive Process" section now cites Mobley v. St. Luke’s Health System, Inc., 53 F.4th 452, 457 (8th Cir. 2022) (affirming summary judgment for employer which, while declining to approve a blanket request to work from home during flare-ups, approved permission to work from home on a case-by-case basis and denied only one of the plaintiff’s work from home requests). The "Undue Hardship" section now ends "See also Gardea v. JBS USA, LLC, 915 F.3d at 542 (mechanic’s request for lift-assisting devices was “not reasonable on its face and would impose an undue hardship” on employer’s business, where not all areas of the plant had the overhead beams necessary for such devices, use of the devices was impractical in tight quarters, and some of the devices required employees to first lift an object by hand onto the device); LeBlanc v. McDonough, 39 F.4th 1071, 1075-76 (8th Cir. 2022) (holding, in Rehabilitation Act case, that request for day shifts only would impose undue hardship on department and would have violated collective bargaining agreement that required shifts to be rotated fairly and equitably among affected employees)."
  • The Comment to Instruction 9.21 DEFINITION: ESSENTIAL FUNCTIONS now cites Moses v. Dassault Falcon Jet-Wilmington Corp., 894 F.3d 911, 921 (8th Cir. 2018).
  • Instruction 9.42 ELEMENTS OF CLAIM: REASONABLE ACCOMMODATION (Specific Accommodation Identified) replaces references to "identified by the plaintiff" with "in question" and adds a new element: "Seventh, as a direct result of defendant’s failure to provide reasonable accommodation, [specify adverse employment decision in question – e.g., “plaintiff’s employment was terminated” or “plaintiff was denied a bonus”]." This new element is explained at the end of the Comments. Also, the Notes on use now indicate that the second element "should be omitted if it is undisputed that the defendant knew of the plaintiff’s impairment," and replace former Note 8 with new Notes 8 and 9.
  • The Comment to Instruction 9.61 ELEMENTS OF DEFENSE: “DIRECT THREAT”—STATUTORY DEFENSE deletes the citation to EEOC v. AIC Sec. Investigations, Ltd and now cites Belk v. Southwestern Bell Telephone Co., 194 F.3d 946 (8th Cir. 1999).
  • The cases listed in the middle of the second paragraph of the Comment to Instruction 9.70 DAMAGES: ACTUAL have been revised.
  • Instruction 10.00 EMPLOYMENT—RETALIATION (ANTI-DISCRIMINATION STATUTES) OVERVIEW now cites Muldrow v. City of St. Louis Mo., 30 F.4th 680, 691 (8th Cir. 2022). The Protected Activity: Opposition section now cites Gruttemeyer v. Transit Auth., 31 F.4th 638, 649 (8th Cir. 2022). The last sentence and citation in the "Materially Adverse Action" section has been replaced with "The 'materially adverse' element may be met by 'the 'cumulative effect’ of an employer’s alleged retaliatory conduct, if the acts, considered in the aggregate, would dissuade a reasonable employee from reporting discrimination.” Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th Cir. 2011)." The "Causal Connection" section now cites Auer v. City of Minot, 896 F.3d 854, 860 (8th Cir. 2018), and Wilson v. Ark. Dept. of Hum. Servs., 850 F.3d 368, 373 (8th Cir. 2017).
  • The Employee and Enterprise Coverage and Employee v. Independent Contractor Sections of Instruction 16.00 EMPLOYMENT—FAIR LABOR STANDARDS ACT OVERVIEW have been combined into a section named "Employee and Enterprise Coverage, Employee v. Independent Contractor" and rewritten. The "Significance of Recordkeeping" section now cites ;Holaway v. Stratasys, Inc., 771 F.3d 1057, 1059 (8th Cir. 2014).
  • The Comment to Instruction 16.01 EXPLANATORY: DETERMINING HOURS WORKED also now cites Holaway.
  • The Comment to Instruction 16.06 EXPLANATORY: DETERMINING EMPLOYEE STATUS now cites Walsh v. Alpha & Omega USA, Inc., 39 F.4th 1078, 1082 (8th Cir. 2022).
  • Note 4 of Instruction 16.20 DEFINITION: “HOURS WORKED” has been expanded to cite more recent cases.
  • Chapter 19. ODOMETER FRAUD has been thoroughly rewritten. The elements remain unchanged.
  • Chapter 20 was [RESERVED] in the prior Edition. Now, Chapter 20 is a new Chapter on Copyright.
  • The first three paragraphs of Instruction 21.09 EXPLANATORY: LIKELIHOOD OF CONFUSION – TRADEMARK/TRADE DRESS have been condensed into one short paragraph.
  • Instruction 21.10 EXPLANATORY: ACTUAL OR STATUTORY NOTICE (Registered Marks) has been replaced with two new Instructions, 21.10 EXPLANATORY: LIKELIHOOD OF CONFUSION – TRADEMARK/TRADE DRESS and 21.11 EXPLANATORY: STATUTORY NOTICE (Registered Marks).
  • The Notes on Use for 21.40 ELEMENTS OF CLAIM: TRADEMARK INFRINGEMENT have been rewritten.
  • Instruction 21.41 ELEMENTS OF CLAIM: TRADE DRESS INFRINGEMENT, including the elements list, has been thoroughly rewritten.
  • The Note on Use for Instruction 21.42 ELEMENTS OF CLAIM: DERIVATIVE LIABILITY – CONTRIBUTORY INFRINGEMENT now reads: "1. ...Additionally, Model Instruction 3.04 (Burden of Proof) tells the jury that something is proved only if the jury finds it is more likely true than not true. The phrase “greater weight of the evidence” or “preponderance of the evidence” is not necessary here. It can be included in Instruction 3.04. 2. The number or title of the “elements of claim” instruction for trademark or trade dress infringement should be inserted here."
  • The Notes on Use for Instruction 21.43 ELEMENTS OF CLAIM: FALSE ADVERTISING UNDER LANHAM ACT now begin with a new Note 1 regarding burdwn of proof, with the remaining notes renumbered.
  • Some of the introductory and closing language for the elements list for Instruction 21.60 AFFIRMATIVE DEFENSE: NOMINATIVE FAIR USE, 21.61 AFFIRMATIVE DEFENSE: CLASSIC FAIR USE, 21.62 AFFIRMATIVE DEFENSE: CONTINUOUS PRIOR USE (Registered Marks), and 21.64 AFFIRMATIVE DEFENSE: FRAUD IN PROCUREMENT have been revised, but the elements themselves are unchanged. The Notes on Use on each now start with the same burden of proof language as Instruction 21.43.
  • Instruction 21.65 AFFIRMATIVE DEFENSE: ABANDONMENT now reads: "Your verdict must be for defendant [name] on plaintiff [name]’s trademark infringement claim if you find that the plaintiff stopped using its [trademark] [trade dress] and intended not to resume use." It also now has a Note re burden of proof.
  • The Damages Instructions are now 21.70 DAMAGES: PLAINTIFF’S ACTUAL DAMAGES and 21.71 DAMAGES: DEFENDANT’S PROFITS (they used to go 21.70 DAMAGES: TYPES, 21.71 DAMAGES: PLAINTIFF’S ACTUAL DAMAGES, and 21.72 DAMAGES: DEFENDANT’S PROFITS). The instructions themseleves were rewritten, but not the Notes and Comments.

(01/22/24) (permalink)

 

Updated criminal instructions from the Eighth Circuit

The Eighth Circuit has posted the "2023 Edition" of its Civil and Criminal Model Jury Instructions (although labeled 2023, it is their custom to post the annual revisions well into the nex calendar year). I am going to describe the changes in two posts, starting with the criminal instructions.

  • The Comment to Instruction 2.15 STATEMENT OF ONE DEFENDANT IN MULTI-DEFENDANT TRIAL now cites Samia v. United States, 599 U.S. ___, 2023 WL 4139001 (June 23, 2023) (holding that a redacted version of a nontestifying codefendant’s confession can be introduced with a limiting instruction without violating the Confrontation Clause).
  • The Comments to "threat" Instructions 6.18.875A, 6.18.875C, and 6.18.875D now cite Counterman v. Colorado, 143 S. Ct. 2160 (June 27, 2023), re the mens rea in "true threat" cases.
  • Instruction 6.18.932 STRAW PURCHASING OF FIREARMS (18 U.S.C. § 932) is new.
  • The Comment to Instruction 6.18.1028A AGGRAVATED IDENTITY THEFT (18 U.S.C. § 1028A(A)(1)) now notes that the Committee is considering what revisions are required in light of Dubin v. United States, 143 S. Ct. 1557, 1568 (June 8, 2023) (the statute requires the “use of the means of identification” to be “at the crux of the underlying criminality”)
  • Two sections of Instruction 6.18.1111 INTRODUCTORY COMMENTS TO HOMICIDE INSTRUCTIONS, Federal Jurisdiction under 18 USC 7 and Heat of Passion, have been removed. The Injection of Defense section now notes the defense burden in insanity cases. The Self Defense section notes the government's BRD burden once the defense is raised.
  • The elements list in Instruction 6.18.1111A MURDER, FIRST DEGREE, WITHIN SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES (18 U.S.C. § 1111) has been rewritten to incorporate felony murder, and adds a bracketed element that the victim was an Indian. The Notes on Use and the Comment have been substantially rewritten.
  • The Notes on Use for Instruction 6.18.1111A-1 “MALICE AFORETHOUGHT” DEFINED now discusses United States v. Iron Crow, 970 F.3d 1003, 1009 (8th Cir. 2020) (describing acting with malice aforethought as reckless or wanton behavior that a defendant was aware risks death or serious bodily harm).
  • Instruction 6.18.1111A-2 “PREMEDITATION” DEFINED has new, extended Notes and Use and Comments.
  • The Notes on Use for Instruction 6.18.1111A-3 HEAT OF PASSION OR SUDDEN QUARREL CAUSED BY ADEQUATE PROVOCATION, DEFINED have been rewritten.
  • The elements list, Notes on Use, and Comment for 6.18.1112B INVOLUNTARY MANSLAUGHTER, WITHIN SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF THE UNITED STATES (18 U.S.C. § 1112) have been rewritten.
  • The discussion of Schad v. Arizone in the Notes on Use in Instructions 6.18.1341 MAIL FRAUD (18 U.S.C. § 1341) and 6.18.1343 WIRE FRAUD (18 U.S.C. § 1343) have been rewritten. The Notes also discuss Ciminelli v. United States, 143 S. Ct. 1121 (2023).
  • There is a new Note on Use in Instruction 6.18.1346 DEPRIVATION OF THE INTANGIBLE RIGHT OF HONEST SERVICES (18 U.S.C. § 1346) discussing . Percoco v. United States, 143 S. Ct. 1130 (2023) (holding that jury instructions that stated the defendant owed a duty of honest services if (1) he dominated and controlled any governmental business, and (2) people working in the government relied on him due to his special relationship with the government, were too vague).
  • The title to Instruction 6.18.1591 now reads "SEX TRAFFICKING OF CHILDREN OR SEX TRAFFICKING BY FORCE, FRAUD, OR COERCION (18 U.S.C. § 1591(A)(1))," and a new Note 6 has been added:

    6. If multiple options are submitted to the jury, a special verdict form is necessary to ensure unanimity, as each option presented here represents a separate offense. See United States v. Taylor, 44 F.4th 779, 795 (8th Cir. 2022) (clarifying that sex trafficking of a minor and sex trafficking by force, fraud, and coercion are separate offenses and that a defendant may be convicted of committing both against a single victim); 18 U.S.C. § 1591(b) (specifying different punishment ranges depending upon whether a minor victim is under or over the age of 14).

    A sentence has been added at the end of Note 7 (formerly Note 6): "In the context of § 1591 sex-trafficking cases, the Eighth Circuit has recognized the 'common meaning' of 'fraud' to be 'deception practiced in order to induce another ....” Taylor, 44 F.4th at 790 (quoting Paul, 885 F.3d at 1105)."

    A new Note 15 reads:

    15. Although the phrase “any sex act” is not defined by statute, Congress’s use of the word “any” suggests an “expansive” meaning that “include[s] activities involving sexual gratification such as masturbation.” See Taylor, 44 F.4th at 788-89 (rejecting the argument that the meaning of “any sex act” should be limited to “sexual conduct involving penetration or contact between two sets of genitalia” and holding that the term includes “happy ending” massages, which involve “the touching of another’s genitals for sexual gratification”).
  • Element 2 of Instruction 6.18.1791B POSSESSION OF CONTRABAND BY A FEDERAL PRISONER (18 U.S.C. § 1791(A)(2)) clarifies that the statute criminalizes attempts. The jury is also instructed that "The defendant need not know what the prohibited object is, so long as he knows that he has possession of some prohibited object." Three new notes have been inserted at the beginning of the Notes on Use addressing attempt, Alleyne, and objects that are not weapons by nature. A list of prohibited objects has been added to new Note 5 (formerly Note 2). A new Note 6 clarifies the "knowing" element, citing United States v. Dozier, 31 F.4th 624, 630-631 (8th Cir. 2022).
  • The Instructions, Notes and Comments for 6.26.7201 TAX EVASION (26 U.S.C. § 7201) and 6.26.7202 FAILURE TO COLLECT, ACCOUNT TRUTHFULLY FOR, OR PAY OVER TAX (26 U.S.C. § 7202) have been rewritten, mostly for style rather than substance. Element 1 of 6.26.7201 has been edited to read: "One, the defendant owed substantial income tax in addition to that which [he] [she] reported on his return;." The definition of "attempt to evade or defeat" and "evade or defeat" in that Instruction have been shortened to "To 'attempt to [evade] [defeat]' a tax means to take some affirmative action with an intent to [evade] [defeat] [the tax] [the payment of the tax]. It does not include mere failures to act or the lawful avoidance of taxes."

(01/21/24) (permalink)

 

Updated unofficial First Circuit criminal instructions from Maine

There are no official pattern instructions, civil or criminal, posted on the First Circuit Web site. I believe that they used to post a set of official criminal pattern instructions dated 1997, but not any more.

For some years Judge Brock Hornby (D. Maine) posted and updated the 1997 criminal instructions on the Maine District Court Web site. He is on senior status now, and Maine Chief District Judge Nancy Torresen has continued to update these instructions. I had been linking the 2018 edition, and there may have been other interim instructions that I have missed, but I just found a PDF copy of the criminal instructions "Updated 12/8/23 by District Judge Nancy Torresen."

Although not official, I think that these recently revised instructions will be of interest to criminal law litigators, especially in the First Circuit, so I have linked them on trialdex.

A set of civil instructions authored by Judge Hornby is on the Maine site as well. These instructions stopped being updated around 2012.

(01/20/24) (permalink)

 

The Seventh Circuit has posted an official 2023 edition of their Criminal Instructions

The Seventh Circuit has posted an official 2023 Edition (link fixed) of its Pattern Criminal Jury Instructions.

They have from time to time posted proposed changes to the 2012 edition (the 2018 version was ponderously named (2012 Ed.) (plus 2015-2017 and 2018 changes), most recently last March in something called Pattern Criminal Jury Instructions (2022) Updated (they should probably take both of these older sets down; they are orphan files).

Anyway, the only substantive change since last March is that the title to Instruction 2.05 now reads "DEFENDANT'S DECISION NOT FAILURE TO TESTIFY OR PRESENT EVIDENCE."

(01/09/24) (permalink)

 

Third Circuit updates Model Civil Chapters 4-6

The Third Circuit has posted Decemnber 2023 updates to Chapters 4 (Civil Rights Claims Under Section 1983), 5 (Employment Discrimination Claims Under Title VII), 6 (Race Discrimination Claims Under 42 U.S.C. § 1981), and 7 (Section 1983 Employment Claims) on its Model Civil Jury Instruction page.

Most of the changes were to Chapter 4.

  • The Comment to Instruction 4.3 Section 1983 – Elements of Claim now notes Campbell v. Pennsylvania School Boards Association, 972 F.3d 213 (3d Cir. 2020) (“preponderance of the evidence [is] the proper standard for § 1983 claims”). It also adds "It is difficult to show the requisite connection between a state and a private entity, “particularly when it hinges on the state’s membership in a larger nationwide organization.” Matrix Distributors, Inc. v. Nat’l Ass’n of Boards of Pharmacy, 34 F.4th 190, 195-96 (3d Cir. 2022) (explaining that it is necessary to show that a party acted under color of the law of some particular state or states)" just after footnote 15.
  • The Comment to Instruction 4.6.2 Section 1983 – Liability in Connection with the Actions of Another – Failure to Intervene now ends with citations to Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012) (“extending [the Smith v. Mensinger] standard to inmate-on-inmate attacks”). Cf. El v. City of Pittsburgh, 975 F.3d 327, 335-36 (3d Cir. 2020) (concluding that a defendant was entitled to summary judgment because the events occurred “within a matter of roughly five seconds,” and that “[g]iven the speed with which the incident ended, no reasonable jury could conclude that Lieutenant Kacsuta had a realistic and reasonable opportunity to intervene”), Lozano v. New Jersey, 9 F.4th 239, 246 n.4 (3d Cir. 2021) (noting that the Court of Appeals has not extended failure-to-intervene liability to the false arrest context), and Weimer v. County of Fayette, Pennsylvania, 972 F.3d 177 (3d Cir. 2020)(“But we have not extended [the duty to intervene] to prosecutors who fail to intervene to prevent police from conducting unconstitutional investigations.”).
  • The title to Instruction 4.6.4 now reads "Section 1983 – Liability in Connection with the Actions of Another – Municipalities – Statute, Ordinance, Regulation, or Official Policy." The last paragraph of the Comment now discusses Porter v. City of Philadelphia, 975 F.3d 374 (3d Cir. 2020).
  • The Comment to Instruction 4.7.1 Section 1983 – Affirmative Defenses – Conduct Not Covered by Absolute Immunity now discusses HIRA Educational Services North America v. Augustine, 991 F.3d 180, 189-90 (3d Cir. 2021) (holding that introduction of a resolution in the State Senate and presentation of it to a House committee “were quintessentially legislative activities” protected by absolute immunity but that making disparaging public comments, meeting with the Secretary of the Department of General Services to get the Department to cancel a sale, and giving preferential treatment to the subsequent purchaser were not).

    Also, the following is inserted after footnote 97:

    More recently, however, it held:

    We ask whether an official act is substantively and procedurally legislative when classifying actions performed by municipal officials who possess both legislative and administrative powers. When determining whether state legislators are acting legislatively, however, we consider only the nature of the act rather than its target or effect.

    HIRA Educational Services North America v. Augustine, 991 F.3d 180, 189-90 (3d Cir. 2021) (citation omitted). Although municipal officials are perhaps the most common officials to possess “both legislative and administrative powers,” they are not the only such officials. The HIRA case did not involve state officials with both legislative and administrative powers—such as the Governor involved in Baraka—and therefore had no occasion to distinguish between state officials with both powers and those with only legislative powers.

    Judges possess absolute immunity from damages liability for “acts committed within their judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547, 554 (1967). “[T]he factors determining whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). Judges do not possess absolute immunity with respect to claims arising from “the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform.” Forrester v. White, 484 U.S. 219, 227 (1988).

  • The Comment to Instruction 4.7.2 Section 1983 – Affirmative Defenses – Qualified Immunity adds a citation to Weimer v. County of Fayette, Pennsylvania, 972 F.3d 177, 192 (3d Cir. 2020) (holding that prosecutor was entitled to qualified immunity because “the unreliability of bite-mark evidence was not widely recognized” at the relevant time). It also adds the following after its citation to Burns v. PA Dep’t of Corrections:

    See, e.g., Starnes v. Butler County Court of Common Pleas, 971 F.3d 416 (3d Cir. 2020) (rejecting qualified immunity because prohibitions on sexual harassment and First Amendment retaliation clearly established); Peroza-Benitez v. Smith, 994 F.3d 157 (3d Cir. 2021) (rejecting qualified immunity because “right of an injured, visibly unarmed suspect to be free from temporarily paralyzing force while positioned at a height that carries with it a risk of serious injury or death” is clearly established and a “robust consensus of cases ... support the proposition that tasing a visibly unconscious person—who just fell over ten feet onto concrete—is a violation of that person's Fourth Amendment rights”) (internal quotation marks omitted); Jacobs v. Cumberland County, 8 F.4th 187 (3d Cir. 2021) (rejecting qualified immunity because defendant’s conduct was “nowhere near the hazy border between excessive and acceptable force”) (internal quotation marks omitted); Clark v. Coupe, 55 F.4th 167, 182 (3d Cir. 2022) (holding that “the right of a prisoner known to be seriously mentally ill to not be placed in solitary confinement for an extended period of time by prison officials who were aware of, but disregarded, the risk of lasting harm posed by such conditions” is clearly established).

    The following cases are noted as well: Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (rejecting qualified immunity because “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time”); Dennis v. City of Philadelphia, 19 F.4th 279, 290 (3d Cir. 2021) (rejecting qualified immunity because “constitutional rule that framing criminal defendants through use of fabricated evidence, including false or perjured testimony, violates their constitutional rights applies with such obvious clarity”); El v. City of Pittsburgh, 975 F.3d 327 (3d Cir. 2020) (rejecting qualified immunity and holding that an unarmed individual who is not suspected of a serious crime—including one who is verbally uncooperative or passively resists the police—has the right not to be subjected to physical force such as being grabbed, dragged, or taken down); Mack v. Yost, 63 F.4th 211, 232-33 (3d Cir. 2023) (noting, in a RFRA case, that the Court of Appeals takes a “ ‘broad view’ of what makes a right clearly established” and concluding that it is obvious that a correctional officer may not, “in the absence of some legitimate penological interest, . . . seek to prevent an inmate from praying in accordance with his faith”) (quoting Peroza-Benitez v. Smith, 994 F.3d 157, 166 (3d Cir. 2021)); Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021) (putting one knee on suspect’s back for 8 seconds not an obvious case, when responding to 911 call about domestic violence possibly involving a chain saw); Lozano v. New Jersey, 9 F.4th 239 (3d Cir. 2021) (holding that officer who had less interaction with arrestee than arresting officer was entitled to qualified immunity because it was reasonable for him to think there was probable cause to detain driver who refused field sobriety test); City of Tahlequah v. Bond, 142 S. Ct. 9, 12 (2021) (“To state the obvious, a decision where the court did not even have jurisdiction cannot clearly establish substantive constitutional law.”); El v. City of Pittsburgh, 975 F.3d 327 (3d Cir. 2020) (stating that unpublished cases cannot establish a right); Mammaro v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 170 n.2 (3d Cir. 2016) (noting that the district court was wrong to rely on a decision that postdated the events in the case); Jefferson v. Lias, 21 F. 4th 74, 85-86 (3d Cir. 2021); Clark v. Coupe, 55 F.4th 167, 186 (3d Cir. 2022); Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 144–45 (3d Cir. 2017) (“Even if a right can be clearly established by circuit precedent despite disagreement in the courts of appeals, there does not appear to be any such consensus—much less the robust consensus—that we require”); Rivera v. Monko, 37 F.4th 909, 922 (3d Cir. 2022) (“A two-court circuit split demonstrates that no ‘robust consensus’ exists.”); Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 144–45 (3d Cir. 2017) (“Even if a right can be clearly established by circuit precedent despite disagreement in the courts of appeals, there does not appear to be any such consensus—much less the robust consensus—that we require”); Sauers v. Borough of Nesquehoning, 905 F.3d 711, 715, 723 (3d Cir., 2018) (acknowledging circuit split, while stating, “We hope ... to establish the law clearly now,” and “our opinion today should resolve any ambiguity.... within this Circuit.”); Williams v. Sec’y Pennsylvania Dep’t of Corr., 848 F.3d 549 (3d Cir. 2017) (“Our holding today that Plaintiffs had a protected liberty interest provides fair and clear warning that, despite our ruling against Plaintiffs, qualified immunity will not bar such [due process] claims in the future.”); Diamond v. Pennsylvania State Education Association, 972 F.3d 262 (3d Cir. 2020) (holding that unions that collected fair-share fees in good faith reliance on a governing state statute and Supreme Court precedent are entitled to a good faith defense to monetary liability).

  • The Comment in Instruction 4.9 Section 1983 – Excessive Force (Including Some Types of Deadly Force) – Stop, Arrest, or other “Seizure” now cites Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2241 n.2 (2021) (“We need not address whether the Fourth or Fourteenth Amendment provides the proper basis for a claim of excessive force against a pretrial detainee.”), and ends that paragraph with "The standard under both the Fourth Amendment and the Due Process Clause calls on a court to “determine whether the force was objectively unreasonable in light of the facts and circumstances of each particular case.” Lombardo, 141 S. Ct. at 2241 n.2; Jacobs, 8 F.4th at 195 n.6 (describing the Fourteenth Amendment standard as “almost identical” to the Fourth Amendment standard)." The sentence following that now reads "Because the excessive force standards under the Fourth and Eighth Amendments differ, it will be necessary in some cases to determine which standard ought to apply."

    The paragraph that starts "The content of the Fourth Amendment standard for excessive force" now ends "It is wrong to apply a per se rule, such as 'use of a prone restraint—no matter the kind, intensity, duration, or surrounding circumstances—is per se constitutional so long as an individual appears to resist officers’ efforts to subdue him,'" citing Lombardo.

    The following paragraph ends by noting Bletz v. Corrie, 974 F.3d 306 (3d Cir. 2020) (holding that the use of deadly force against a household pet is reasonable if the pet poses an imminent threat to the law enforcement officer’s safety, viewed from the perspective of an objectively reasonable officer); Cf. Peroza-Benitez v. Smith, 994 F.3d 157 (3d Cir. 2021) (holding that it was unreasonable to punch plaintiff who was hanging from a second story window, causing him to fall, and to tase him once he was unconscious on the ground); El v. City of Pittsburgh, 975 F.3d 327 (3d Cir. 2020) (holding that it was unreasonable to slam plaintiff into a wall and take him to the ground where the potential crime at issue was not severe, there was no immediate safety threat, the plaintiff was neither resisting arrest nor trying to flee, was unarmed, not violent or dangerous, was outnumbered six to two, suffered physical injury, and the situation unfolded over a few minutes, not a few tense and dangerous seconds); Jefferson v. Lias, 21 F.4th 74 (3d Cir. 2021) (holding that it was unreasonable to shoot at a suspect fleeing in a vehicle, who had not otherwise displayed threatening behavior, when it was no longer reasonable for an officer to believe his or others’ lives were in immediate peril from the suspect’s flight); and Jacobs v. Cumberland County, 8 F.4th 187 (3d Cir. 2021) (holding, under the Due Process Clause, that it was unreasonable to strike pretrial detainee while he was defenseless and obeying orders).

    The section ends noting again Jefferson v. Lias, and El v. City of Pittsburgh.

  • The Comment to Instruction 4.10 Section 1983 – Excessive Force – Convicted Prisoner now notes Jacobs v. Cumberland County, 8 F.4th 187, 194 n.5 (3d Cir. 2021) (Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) abrogates Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000)).
  • The Comments to Instructions 4.11.1 Section 1983 – Conditions of Confinement – Convicted Prisoner – Denial of Adequate Medical Care and 4.11.2 Section 1983 – Conditions of Confinement – Convicted Prisoner – Failure to Protect from Suicidal Action now note Clark v. Coupe, 55 F.4th 167 (3d Cir. 2022).
  • The Comment to Instruction 4.12 Section 1983 – Unlawful Seizure now notes DeLade v. Cargan, 972 F.3d 207, 208 (3d Cir. 2020) (“We conclude that a claim alleging unlawful arrest and pretrial detention that occur prior to a detainee’s first appearance before a court sounds in the Fourth Amendment—and not the Due Process Clause of the Fourteenth Amendment.”).
  • The Comment to Instruction 4.12.1 Section 1983 – Unlawful Seizure – Terry Stop and Frisk now cites United States v. Hurtt, 31 F.4th 152 (3d Cir. 2022) (holding that questions about a driver’s occupation, destination, and identities of passengers were all legitimate parts of inquiring into the driver’s sobriety and therefore did not unjustifiably delay the stop, but that pausing the sobriety test in order to ensure the safety of another officer who put himself in danger by getting into the truck and kneeling on the front seat did unjustifiably extend the stop), and United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (holding that the police fulfilled the duty to independently corroborate at least some of the information provided by an informant who owned a storage facility and certainly had probable cause, reasonably corroborated, to arrest for using that storage facility for dealing drugs).
  • The Comment to Instruction 4.12.2 Section 1983 – Unlawful Seizure – Arrest – Probable Cause now cites Harvard v. Cesnalis, 973 F.3d 190 (3d Cir. 2020)(a reasonable jury might find a lack of probable cause to arrest for reckless endangerment, reckless driving, simple assault, disorderly conduct, and driving under the influence even though the plaintiff drove on a highway, at highway speeds, for about ten miles with someone on the hood of his car, due to the circumstances that led the plaintiff to do so).
  • The Comment to Instruction 4.12.3 Section 1983 – Unlawful Seizure – Arrest – Warrant Application now cites United States v. Williams, 974 F.3d 320, 352–53 (3d Cir. 2020) ("standard for assertions").
  • The elements list for Instruction 4.13 Section 1983 – Malicious Prosecution has changed. The numbering is different, so it is a bit difficult to spot the substantive change, but the former third element ("proceeding was initiated without probable cause") has been replaced with a new fifth element ("As a consequence of the proceeding, [plaintiff] suffered a significant deprivation of liberty"). This was apparently occasioned by the Supreme Court's decision in Thompson v. Clark, 142 S. Ct. 1332 (2022). As a consequence, the Instruction and Comment have been thoroughly rewritten.
  • The Comment to Instruction 4.14 Section 1983 – State-created Danger now cites Mears v. Connolly, 24 F.4th 880, 885 (3d Cir. 2022) (“Common sense tells us that it is inherently risky to leave a visitor with a violent psychiatric patient—even if that visitor is the patient’s mother. So the harm was foreseeable.”), and Johnson v. City of Philadelphia, 975 F.3d 394 (3d Cir. 2020).
  • The Comment to Instruction 4.3 Section 1983 – Elements of Claim now cites Campbell v. Pennsylvania School Boards Association, 972 F.3d 213 (3d Cir. 2020) (“preponderance of the evidence [is] the proper standard for § 1983 claims”).
  • The Comment to Instruction 4.4 Section 1983 – Action under Color of State Law now cites Matrix Distributors, Inc. v. Nat’l Ass’n of Boards of Pharmacy, 34 F.4th 190, 195-96 (3d Cir. 2022) (explaining that it is necessary to show that a party acted under color of the law of some particular state or states). The Comment to Instruction 4.6.2 Section 1983 – Liability in Connection with the Actions of Another – Failure to Intervene now cites Bistrian v. Levi, 696 F.3d 352, 371 (3d Cir. 2012) (“extending [the Smith v. Mensinger] standard to inmate-on-inmate attacks”), El v. City of Pittsburgh, 975 F.3d 327, 335-36 (3d Cir. 2020) (concluding that a defendant was entitled to summary judgment because the events occurred “within a matter of roughly five seconds,” and that “[g]iven the speed with which the incident ended, no reasonable jury could conclude that Lieutenant Kacsuta had a realistic and reasonable opportunity to intervene”), Lozano v. New Jersey, 9 F.4th 239, 246 n.4 (3d Cir. 2021) (noting that the Court of Appeals has not extended failure-to-intervene liability to the false arrest context), and Weimer v. County of Fayette, Pennsylvania, 972 F.3d 177 (3d Cir. 2020).
  • The title to Instruction 4.6.4 now reads "Section 1983 – Liability in Connection with the Actions of Another – Municipalities – Statute, Ordinance, Regulation, or Official Policy. This change is addressed in a new paragraph inserted at the end of the Instruction, and in a note regarding Porter v. City of Philadelphia, 975 F.3d 374 (3d Cir. 2020), in the Comment.
  • The Comment to Instruction 4.7.1 Section 1983 – Affirmative Defenses – Conduct Not Covered by Absolute Immunity now has two passages relating to HIRA Educational Services North America v. Augustine, 991 F.3d 180 (3d Cir. 2021).
  • 4.7.2 Section 1983 – Affirmative Defenses – Qualified Immunity extensively rewrites the Comment because of Weimer v. County of Fayette, Pennsylvania, 972 F.3d 177 (3d Cir. 2020).

  • The Comment to Instruction 4.9 Section 1983 – Excessive Force (Including Some Types of Deadly Force) – Stop, Arrest, or other “Seizure” now discusses Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021), observing that "It is wrong to apply a per se rule, such as 'use of a prone restraint—no matter the kind, intensity, duration, or surrounding circumstances—is per se constitutional so long as an individual appears to resist officers’ efforts to subdue him.'" It also discusses Bletz v. Corrie, El v. City of Pittsburgh, and Jefferson v. Lias.

  • "It appears that the Eighth Amendment technically does not apply to a convicted prisoner until after the prisoner has been sentenced." in the Comment to Instruction 4.10 Section 1983 – Excessive Force – Convicted Prisoner is replaced with "The Eighth Amendment does not apply to a convicted prisoner until after the prisoner has been sentenced." The Comment also clarifies that Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), abbrogates Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000).
  • A note re Clark v. Coupe, 55 F.4th 167 (3d Cir. 2022), has been placed at the end of the Comment to Instruction 4.11.1 Section 1983 – Conditions of Confinement – Convicted Prisoner – Denial of Adequate Medical Care.
  • The Comment to Instruction 4.11.2 Section 1983 – Conditions of Confinement – Convicted Prisoner – Failure to Protect from Suicidal Action now cites Clark v. Coupe.
  • The Comment to Instruction 4.12 Section 1983 – Unlawful Seizure noe cites DeLade v. Cargan, 972 F.3d 207, 208 (3d Cir. 2020) (“We conclude that a claim alleging unlawful arrest and pretrial detention that occur prior to a detainee’s first appearance before a court sounds in the Fourth Amendment—and not the Due Process Clause of the Fourteenth Amendment.”).
  • The Comment to Instruction 4.12.1 Section 1983 – Unlawful Seizure – Terry Stop and Frisk now cites also United States v. Hurtt, 31 F.4th 152 (3d Cir. 2022) (holding that questions about a driver’s occupation, destination, and identities of passengers were all legitimate parts of inquiring into the driver’s sobriety and therefore did not unjustifiably delay the stop, but that pausing the sobriety test in order to ensure the safety of another officer who put himself in danger by getting into the truck and kneeling on the front seat did unjustifiably extend the stop).
  • The Comment to Instruction 4.12.2 Section 1983 – Unlawful Seizure – Arrest – Probable Cause now cites Harvard v. Cesnalis, 973 F.3d 190 (3d Cir. 2020) ("a reasonable jury might find a lack of probable cause to arrest for reckless endangerment, reckless driving, simple assault, disorderly conduct, and driving under the influence even though the plaintiff drove on a highway, at highway speeds, for about ten miles with someone on the hood of his car, due to the circumstances that led the plaintiff to do so."), and United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (holding that the police fulfilled the duty to independently corroborate at least some of the information provided by an informant who owned a storage facility and certainly had probable cause, reasonably corroborated, to arrest for using that storage facility for dealing drugs).
  • The Comment to Instruction 4.12.3 Section 1983 – Unlawful Seizure – Arrest – Warrant Application has a new paragraph:

    The Court of Appeals has stated that the standard for assertions is that the affiant “must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported,” while the standard for omissions is that the affiant “withholds a fact in his ken that any reasonable person would have known was the kind of thing the judge would wish to know.” United States v. Williams, 974 F.3d 320, 352–53 (3d Cir. 2020) (cleaned up). Omissions must be relevant to the existence of probable cause. Id. at 353.
  • The elements in Instruction 4.13 Section 1983 – Malicious Prosecution have been changed (and renumbered). The former "Second: [Defendant] lacked probable cause to initiate the proceeding" is now "Third: The proceeding was initiated without probable cause." The Fifth Eelement now reads "Fifth: As a consequence of the proceeding, [plaintiff] suffered a significant deprivation of liberty consistent with the concept of seizure. As a consequence, the Comment has been extensively rewritten.
  • The Comment to Instruction 4.14 Section 1983 – State-created Danger now cites Mears v. Connolly, 24 F.4th 880, 885 (3d Cir. 2022) (“Common sense tells us that it is inherently risky to leave a visitor with a violent psychiatric patient—even if that visitor is the patient’s mother. So the harm was foreseeable.”) (cleaned up), and Johnson v. City of Philadelphia, 975 F.3d 394 (3d Cir. 2020).

Here are the changes to Chapter 5

  • The Comment to Instruction 5.0 Title VII Introductory Instruction adds a new paragraph at the end of the section labeled "Discrimination because of religion":

    The Committee has not attempted to determine the ways in which the disparate-treatment instructions in this Chapter would need to be modified for application to a claim for failure to accommodate a religious practice. Any instruction should consider Groff v. DeJoy, 123 S. Ct. 2279 (2023), which clarified language from a much earlier Supreme Court decision, Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), that had been read by a number of courts to mean that an employer’s incurring more than de minimis costs for an accommodation would be an undue hardship. Instead, the correct standard is whether granting an accommodation would result in “substantial increased costs for the employer in relation to the conduct of its particular business,” while “tak[ing] into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, ‘size and operating cost of [an] employer.’” Id. at 2295 (citation omitted). The Court stated that employers need not violate governing seniority systems. Beyond that, relevant costs were those the employer suffered, which means that costs to coworkers are irrelevant unless they pose difficulties for the employer: even when they do, hardship “attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue.’” Id. at. 2296. Guidance for an Instruction may be found in the EEOC’s current regulations, 29 CFR §1605.2(e)(1) (2022), which the Court referenced positively but did not endorse in toto. Guidance may also be found in ADA Instruction 9.1.3 since the Americans with Disabilities Act also requires reasonable accommodation short of undue hardship although the Court did not rely on the ADA and the two statutes address very different concerns.

    It also adds a new section, "Discrimination on the Basis of Interracial Association"

    For purposes of Title VII, race discrimination includes discrimination on the basis of the race of individuals with whom the plaintiff associates. In Kengerski v. Harper, 6 F.4th 531, 538 (3d Cir. 2021), plaintiff claimed retaliation for his internal complaint of harassment on the basis of his familial association with a black grandniece, and the court agreed that such a claim could be actionable. Associational discrimination is “well grounded in the text of Title VII” although “the name is a misnomer because, when you discriminate against an employee because of his association with someone of a different race, you are in effect discriminating against him ‘because of [his own] race’ in violation of Title VII.”) (citation omitted). Further, “[t]his theory of discrimination is not limited to close or substantial relationships.” Id.
  • The Comment to Instruction 5.1.1 Elements of a Title VII Claim— Disparate Treatment — Mixed-Motive now cites Fowler v. AT&T, Inc., 19 F.4th 292, 301 (3d Cir. 2021)
  • The Comment to Instruction 5.1.3 Elements of a Title VII Claim — Harassment — Quid Pro Quo now cites O'Brien v. Middle E. Forum, 57 F.4th 110 (3d Cir. 2023).
  • The Comment to Instruction 5.1.4 Elements of a Title VII Action — Harassment — Hostile Work Environment — Tangible Employment Action now cites Starnes v. Butler Cty. Court of Common Pleas, 971 F.3d 416, 427-29 (3d Cir. 2020) (in a §1983 suit, the court found the severe or pervasive element of a hostile work environment claim sufficiently stated by allegations that plaintiff’s supervisor "coerced her into engaging in sexual relations, shared pornography with her, asked her to film herself performing sexual acts, engaged in a pattern of flirtatious behavior, scolded her for speaking with male colleagues, assigned her duties forcing her to be close to him, and treated her differently than her male colleagues.”).
  • Instruction 5.1.5 Elements of a Title VII Claim — Harassment — Hostile Work Environment — No Tangible Employment Action now has a lengthy new section that starts at "[In the event this Instruction is given, omit the following instruction regarding the employer’s liability.]" Accordingly, the Comment has been substantially rewritten.
  • The Comment to Instruction 5.1.7 Elements of a Title VII Claim — Retaliation now cites Kengerski v. Harper, 6 F.4th 531, 536 (3d Cir. 2021) (distinguishing between a hostile-work-environment claim and a retaliation claim: to prevail on the former a plaintiff needs to show that the environment was actually hostile while success on the latter requires only “an objectively reasonable belief” of that reality).
  • The Comment to Instruction 5.2.1 Title VII Definitions — Hostile or Abusive Work Environment has a new paragraph:

    Instruction 5.2.1 is similar to the instruction approved (with respect to claims under the New Jersey Law Against Discrimination) in Hurley v. Atlantic City Police Dept., 174 F.3d 95, 115-17 (3d Cir. 1999). The list of factors in this Instruction that may be considered in determining whether a work environment is hostile is not derived from any single precedential decision of the Third Circuit but is an amalgamation of factors found in Hurley and other sources. However, Nitkin v. Main Line Health, 67 F.4th 565, 571 (3d Cir. 2023), made clear in the summary judgment context that in looking to such factors only reasonably specific incidents can be considered, holding that “the District Court properly excluded Nitkin's ‘general, unsubstantiated allegations that the alleged conduct occurred ‘regularly’ or ‘all the time.’”

    Nitkin is also cited in the last paragraph of the Comment.

Chapter 6:

  • The Comment to Instruction 6.1.2 Elements of a Section 1981 Claim— Disparate Treatment— Pretext now cites Williams v. Tech. Mahindra (Ams.) Inc., 70 F.4th 646, 651-52 (3d Cir. 2023) (affirming that, after Comcast, for a plaintiff to prevail on a § 1981 claim he must prove that but for his race, he would not have been discriminated against in the making or enforcing of contracts, but noting that the “indirect methods of proof formulated by the Supreme Court for employment discrimination claims under Title VII ... may be applied to claims under § 1981 for employment discrimination when the methods of proof were formulated ‘in a context where but-for causation was the undisputed test.’").
  • Instruction 6.1.4 Elements of a Section 1981 Claim— Harassment — Hostile Work Environment — No Tangible Employment Action now has a lengthy new section that starts at "[In the event this Instruction is given, omit the following instruction regarding the employer’s liability.]" Accordingly, the Comment has been substantially rewritten.

Just one change for Chapter 7:

  • The Comment to Instruction 7.4 Employment Discrimination – Retaliation – First Amendment now cites Fenico v. City of Philadelphia, 70 F.4th 151 (3d Cir. 2023) (holding that “public concern” is a range, not a threshold, and that the inappropriate or controversial nature of speech is not relevant to deciding whether it touches on a matter of public concern).

(01/08/24) (permalink)

 

Ninth Circuit has posted revised Model Jury Instructions

The Ninth Circuit has historically updated their excellent Model Jury Instruction page every three months. They have been a bit off schedule lately, but the August 2023 revisions are posted now. They have posted revised Model Criminal instructions, too.

Changes to the civil instructions include:

  • The Comment to Instruction 9.11 (Particular Rights—First Amendment— “Citizen” Plaintiff) now notes Hill v. City of Fountain Valley, 70 F.4th 507, 518-19 (9th Cir. 2023).
  • The Comments to Instructions 9.15 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception To Warrant Requirement—Consent), 9.21 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Exception to Warrant Requirement—Terry Stop), and 9.22 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Terry Frisk) now note United States v. Taylor, 60 F.4th 1233, 1243 (9th Cir. 2023).
  • The Comment to Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force) now notes Bernal v. Sacramento Cnty. Sheriff’s Dep’t, 73 F.4th 678, 694 (9th Cir. 2023).
  • The Comment to Instruction 9.35 (Bivens Claim Against Federal Defendant in Individual Capacity—Elements and Burden of Proof) now notes Pettibone v. Russell, 59 F.4th 449, 454 (9th Cir. 2023), and Mejia v. Miller, 61 F.4th 663 (9th Cir. 2023).
  • Instruction 9.36 (Discrimination in Making and Enforcing Contracts (42 U.S.C. § 1981)) is new.
  • A paragraph regarding Sharp v. S&S Activewear, L.L.C., 69 F.4th 974, 979 (9th Cir. 2023) has been added at the end of the Comment to Instruction 10.5 (Civil Rights—Title VII—Hostile Work Environment—Harassment Because Of Protected Characteristics—Elements).
  • The Comment to Instruction 15.11 (Infringement—Elements—Validity—Distinctiveness—Secondary Meaning) expands on its discussion of P & P Imports LLC v. Johnson Enterprises, LLC, 46 F.4th 953, 961 (9th Cir. 2022), citing Jason Scott Collection, Inc. v. Trendily Furniture, LLC, 68 F.4th 1203, 1217 (9th Cir. 2023).
  • The Comments to Instructions 15.19A (Expressive Works) and 15.30 (Trademark Dilution (15 U.S.C. § 1125(c))) now discuss Jack Daniels Props., Inc. v. VIP Prods. LLC, 143 S.Ct. 1578, 1586-87 (2023).
  • The Comments to Instructions 15.21 ( Derivative Liability—Contributory Infringement) and 15.28 (Trademark Damages—Plaintiff’s Statutory Damages (15 U.S.C. § 1117(c) and (d))) now discuss Y.Y.G.M. SA v. Redbubble, Inc., 75 F.4th 995, 1001 (9th Cir. 2023).
  • The Comment to Instruction 15.27 (Trademark Damages—Plaintiff’s Actual Damages (15 U.S.C. § 1117(a))) now discusses Jason Scott Collection, Inc. v. Trendily Furniture, LLC, 68 F.4th 1203, 1220-21 (9th Cir. 2023).
  • The Comment to Instruction 17.15 (Copyright Interests—Derivative Work (17 U.S.C. §§ 101, 106(2))) now notes Enter. Mgmt. Ltd. v. Construx Software Builders, Inc., 73 F.4th 1048, 1057 (9th Cir. 2023).
  • The Comment to Instruction 17.22 (Copyright—Affirmative Defense—Fair Use (17 U.S.C. § 107)) now notes Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 143 S.Ct. 1272-73 (2023)
  • The Comment to Instruction 17.35 (Copyright—Damages—Statutory Damages (17 U.S.C. § 504(c))) now notes VHT, Inc. v. Zillow Grp., Inc., 69 F.4th 983, 988 (9th Cir. 2023).

    Prior copies of these instructions are archived here.

Changes to the criminal instructions include:

  • Instruction 3.1 is now titled "Statements by Defendant or Codefendants." The Comment to that instruction ends with a new paragraph regarding Bruton and its progeny.
  • The Comment to Instruction 6.32 (Venue) now ends with a brief note regarding Smith v. United States, 599 U.S. 236 (2023).
  • Instruction 7.4 (Alien—Encouraging Illegal Entry 8 U.S.C. § 1324(a)(1)(A)(iv))) had been pulled because of a Fourth Circuit case indicating that the statute was facially overbroad. That case went to the Supreme Court, which ruled that the statute was not facially overbroad. United States v. Hansen, 143 S.Ct. 1932 (2023). So now there is a suggested instruction, elements list, and Comment reflecting the new case.
  • There is a new Instruction 12.21 (Controlled Substance—Statutory Enhancement Based on Prior Serious Drug Felony or Serious Violent Felony).
  • The Comment to Instruction 14.13 (Firearms—Unlawful Receipt (18 U.S.C. § 922(g))) now notes United States v. Walker, 68 F.4th 1227 (9th Cir. 2023), regarding the inapplicability of Rehaif to commerce clause elements.
  • A new sentence—"A means of identification is used 'during and in relation to' a crime when the means of identification is used in a manner that is fraudulent or deceptive and is at the crux of what makes the conduct criminal."—has been added at the end of the elements list in Instruction 15.9 (Fraud in Connection with Identification Documents—Aggravated Identity Theft (18 U.S.C. § 1028A). The last paragraph of the Comment has been rewritten.
  • The first element of Instruction 15.32 Mail Fraud—Scheme to Defraud or to Obtain Money or Property by False Promises (18 U.S.C. § 1341) now reads: First, the defendant knowingly [participated in] [devised] [intended to devise] a scheme or plan to defraud or a scheme or plan for for the purpose of obtaining money or property by means of false or fraudulent pretenses, representations, or promises[, or omitted facts.] [Deceitful statements of half-truths may constitute false or fraudulent representations]. The first paragraph of the Comment discusses Ciminelli v. United States, 598 U.S. 306, 308-09 (2023).
  • The Comment to Instruction 15.34 (Mail Fraud—Scheme to Defraud—Deprivation of Intangible Right of Honest Services (18 U.S.C. §§ 1341, 1346)) adds a new paragraph at the end discussing Percoco v. United States, 598 U.S. 319 (2023).
  • Instruction 15.35 (Wire Fraud (18 U.S.C. § 1343)) got the same revision that Instruction 15.32 got.
  • A new paragraph regarding "lascivious exhibition of the anus, genitals, or pubic area of any person" has been added to the Comment to Instruction 20.18 (Sexual Exploitation of Child). This paragraph is now cross-referenced in Instructions 20.22 (Sexual Exploitation of Child—Transportation of Child Pornography (18 U.S.C. § 2252(a)(1))) and 20.23 (Sexual Exploitation of Child—Possession of Child Pornography (18 U.S.C. § 2252(a)(4)(B))).
  • The sentence "The 'force, fraud, or coercion' elements may be applied for victims who are not minors." has been replaced by "The victim need not be a minor when the charge is sex trafficking by 'force, fraud, or coercion.'” in the Comment to Instruction 20.26 (Sex Trafficking of Children or by Force, Fraud, or Coercion—Benefitting from Participation in Venture (18 U.S.C. § 1591(a)(2))).

Prior copies of these instructions are archived here.

(11/26/23) (permalink)