IN THE UNITED STATES DISTRICT COURT

_______ DISTRICT OF _______ 

    _________________, )
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		Plaintiff,		) 
					) 
	 	v.			) 
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					)		 No. __________
					) 
	_______________ ,)
	 				) 
		Defendant	) 
					) 
      _________________)

JURY INSTRUCTIONS

DATED: ___________

________________________________________________

UNITED STATES [DISTRICT] [MAGISTRATE] JUDGE

            Members of the jury: You are now the jury in this case. It is my duty to instruct you on the law. 

            These instructions are preliminary instructions to help you understand the principles that apply to civil trials and to help you understand the evidence as you listen to it. You will be allowed to keep this set of instructions to refer to throughout the trial. These instructions are not to be taken home and must remain in the jury room when you leave in the evenings. At the end of the trial, these instructions will be collected and I will give you a final set of instructions. It is the final set of instructions that will govern your deliberations. 

            It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so. 

            Please do not read into these instructions or anything I may say or do that I have an opinion regarding the evidence or what your verdict should be.  

Comment

            This Instruction may be used as a preliminary instruction if the court decides to provide a written set of preliminary instructions at the beginning of the trial that the jurors are permitted to keep with them. In the final set of instructions, the court should substitute Instruction 1.3.

            Members of the jury: You are now the jury in this case. It is my duty to instruct you on the law.

            It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so.

            At the end of the trial I will give you final instructions. It is the final instructions that will govern your duties.

            Please do not read into these instructions, or anything I may say or do, that I have an opinion regarding the evidence or what your verdict should be. 

Comment

            This Instruction may be used as an oral instruction if the court elects to read its preliminary instructions to the jury but not to provide the jury with a copy of the instructions.

            Members of the Jury: Now that you have heard all of the evidence [and the arguments of the attorneys], it is my duty to instruct you on the law that applies to this case.

            [Each of you has received a copy of these instructions that you may take with you to the jury room to consult during your deliberations.]

or

            [A copy of these instructions will be sent to the jury room for you to consult during your deliberations.]

            It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so.

            Please do not read into these instructions or anything that I may say or do or have said or done that I have an opinion regarding the evidence or what your verdict should be. 

Comment

            This Instruction should be used with the written final set of the instructions to be sent to the jury. Bracketed material should be selected to cover whether single or multiple sets of written instructions are provided.

            To help you follow the evidence, I will give you a brief summary of the positions of the parties:

            The plaintiff asserts that [plaintiff’s claims]. The plaintiff has the burden of proving these claims.

            The defendant denies those claims [and also contends that [defendant’s counterclaims and/or affirmative defenses]]. [The defendant has the burden of proof on these [counterclaims and/or affirmative defenses.]]

            [The plaintiff denies [defendant’s counterclaims and/or affirmative defenses].]　

            When a party has the burden of proving any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true.

            You should base your decision on all of the evidence, regardless of which party presented it.　

            When a party has the burden of proving any claim or defense by clear and convincing evidence, it means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt.  

Comment 

            See Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (defining clear and convincing evidence). See also Sophanthavong v. Palmateer, 378 F.3d 859, 866 (9th Cir.2004) (citing Colorado).

            You should decide the case as to each [plaintiff] [defendant] [party] separately. Unless otherwise stated, the instructions apply to all parties.

           The evidence you are to consider in deciding what the facts are consists of: 

                        1.         the sworn testimony of any witness; 

                        2.         the exhibits that are admitted into evidence; 

                        3.         any facts to which the lawyers have agreed; and 

                        4.         any facts that I [may instruct] [have instructed] you to accept as proved.

            In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are.  I will list them for you: 

(1)       Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they [may say] [have said] in their opening statements, closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. 

(2)       Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court’s ruling on it. 

(3)       Testimony that is excluded or stricken, or that you [are] [have been] instructed to disregard, is not evidence and must not be considered.  In addition, some evidence [may be] [was] received only for a limited purpose; when I [instruct] [have instructed] you to consider certain evidence only for a limited purpose, you must do so, and you may not consider that evidence for any other purpose. 

(4)       Anything you may [see or hear] [have seen or heard] when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial. 

Comment 

            With regard to the bracketed material in paragraph 3, select the appropriate bracket depending on whether the instruction is given at the beginning or at the end of the case.  See also Instruction 1.11 (Evidence for Limited Purpose).

            Some evidence may be admitted only for a limited purpose.

            When I instruct you that an item of evidence has been admitted only for a limited purpose, you must consider it only for that limited purpose and not for any other purpose.

            [The testimony [you are about to hear] [you have just heard] may be considered only for the limited purpose of [describe purpose] and not for any other purpose.] 

Comment

            Asarule,limitinginstructionsneedonlybegivenwhenrequestedandneednotbegiven sua sponte by the court. United States v. Palmer, 691 F.2d 921, 923 (9th Cir. 1982) (citing United States v. McLennan, 563 F.2d 943, 947-48 (9th Cir. 1977)). 

            See United States v. Marsh, 144 F.3d 1229, 1238 (9th Cir.1998) (when trial court fails to instruct jury in its final instructions regarding receipt of evidence for limited purpose, Ninth Circuit examines trial court’s preliminary instructions to determine if court instructed jury on this issue).

            See also Instructions 1.10 (What is Not Evidence) and 2.9 (Impeachment Evidence—Witness).

Revised March 2025

            Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence. 

Comment

            It may be helpful to include an illustrative example in the instruction:

            By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may provide a different explanation for the presence of water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience and common sense.　　

            There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been.

            Sometimes I may order that evidence be stricken from the record and that you disregard or ignore that evidence. That means when you are deciding the case, you must not consider the stricken evidence for any purpose.

            In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.  

            In considering the testimony of any witness, you may take into account: 

(1)       the opportunity and ability of the witness to see or hear or know the things testified to; 

(2)       the witness’s memory; 

(3)       the witness’s manner while testifying; 

(4)       the witness’s interest in the outcome of the case, if any; 

(5)       the witness’s bias or prejudice, if any; 

(6)       whether other evidence contradicted the witness’s testimony; 

(7)       the reasonableness of the witness’s testimony in light of all the evidence; and 

(8)       any other factors that bear on believability. 

            Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened.  People often forget things or make mistakes in what they remember.  Also, two people may see the same event but remember it differently.  You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony. 

            However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.  On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest. 

            The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.  What is important is how believable the witnesses were, and how much weight you think their testimony deserves.

Comment 

            The Committee recommends that the jurors be given some guidelines for determining credibility at the beginning of the trial so that they will know what to look for when witnesses are testifying.

            I will now say a few words about your conduct as jurors.

            First, keep an open mind throughout the trial, and do not decide what the verdict should be until you and your fellow jurors have completed your deliberations at the end of the case.

            Second, because you must decide this case based only on the evidence received in the case and on my instructions as to the law that applies, you must not be exposed to any other information about the case or to the issues it involves during the course of your jury duty. Thus, until the end of the case or unless I tell you otherwise: 

Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do withit. This includes discussing the case in person, in writing, by phone, tablet, or computer, or any other electronic means, via email, text messaging, or any internet chat room, blog, website or application, including but not limited to Facebook, YouTube, the platform “X” formerly known as Twitter, Instagram, LinkedIn, Snapchat, TikTok, or any other forms of social media.This applies to communicating with your fellow jurors until I give you the case for deliberation, and it applies to communicating with everyone else including your family members, your employer, the media or press, and the people involved in the trial, although you may notify your family and your employer that you have been seated as a juror in the case, and how long you expect the trial to last. But, if you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and report the contact to the court.

Because you will receive all the evidence and legal instruction you properly may consider to return a verdict:  do not read, watch or listen to any news or media accounts or commentary about the case or anything to do with it[,although I have no information that there will be news reports about this case]; do not do any research, such as consulting dictionaries, searching the Internet, or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own.  Do not visit or view any place discussed in this case, and do not use the Internet or any other resource to search for or view any place discussed during the trial.  Also, do not do any research about this case, the law, or the people involved—including the parties, the witnesses or the lawyers—until you have been excused as jurors. If you happen to read or hear anything touching on this case in the media, turn away and report it to me as soon as possible.

            These rules protect each party’s right to have this case decided only on evidence that has been presented here in court. Witnesses here in court take an oath to tell the truth, and the accuracy of their testimony is tested through the trial process. If you do any research or investigation outside the courtroom, or gain any information through improper communications, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial jury, and if you decide the case based on information not presented in court, you will have denied the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very important that you follow these rules.

            A juror who violates these restrictions jeopardizes the fairness of these proceedings [, and a mistrial could result, requiring the entire trial process to start over]. If any juror is exposed to any outside information, please notify the court immediately, by sending a note through the [clerk] [bailiff] signed by any one or more of you. 

Comment 

            This instruction has been updated specifically to instruct jurors against accessing electronic sources of information and communicating electronically about the case, as well as to inform jurors of the potential consequences if a juror violates this instruction. An abbreviated instruction should be repeated before the first recess, and as needed before other recesses.

            The practice in federal court of repeatedly instructing jurors not to discuss the case until deliberations is widespread.  See, e.g., United States v. Pino-Noriega, 189F.3d1089,1096(9th Cir. 1999) (“most judges continually admonish their juries during trials not to discuss the evidence or begin deliberating until told to do so”).

            State court practice in some jurisdictions does allow discussion of the case by jurors prior to the beginning of deliberations.  The Ninth Circuit has not addressed this practice. 

Revised March 2025

            If there is any news media account or commentary about the case or anything to do with it, you must ignore it. You must not read, watch or listen to any news media account or commentary about the case or anything to do with it. The case must be decided by you solely and exclusively on the evidence that will be received in the case and on my instructions as to the law that applies. If any juror is exposed to any outside information, please notify me immediately.  

Comment

            This instruction may be useful in cases involving significant media coverage and may be given more than once at appropriate times during the trial. See United States v. Waters, 627 F.3d 345, 364 (9th Cir.2010) (reversing criminal conviction due to court’s insufficient questioning of jury regarding negative publicity during jury deliberations); see also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures,§ 2.2 (2013).

            I urge you to pay close attention to the trial testimony as it is given. During deliberations you will not have a transcript of the trial testimony. 

Comment

            The court may wish to modify this instruction for use at the end of the trial.

            If you wish, you may take notes to help you remember the evidence. If you do take notes, please keep them to yourself until you go to the jury room to decide the case. Do not let notetaking distract you. When you leave, your notes should be left in the [courtroom] [jury room] [envelope in the jury room]. No one will read your notes.

            Whether or not you take notes, you should rely on your own memory of the evidence. Notes are only to assist your memory. You should not be overly influenced by your notes or those of other jurors. 

Comment

            It is well settled in this circuit that the trial judge has discretion to allow jurors to take notes. United States v. Baker, 10 F.3d 1374, 1403 (9th Cir.1993). See also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures, § 3.4 (2013).

Option 1

            Only the lawyers and I are allowed to ask questions of witnesses. A juror is not permitted to ask questions of witnesses. [Specific reasons for not allowing jurors to ask questions may be explained.] If, however, you are unable to hear a witness or a lawyer, please raise your hand and I will correct the situation.

Option 2

            When attorneys have finished their examination of a witness, you may ask questions of the witness. [Describe procedure to be used.] If the rules of evidence do not permit a particular question, I will advise you. After your questions, if any, the attorneys may ask additional questions.

Comment

            There may be occasions when a juror desires to ask a question of a witness, and the court has discretion in permitting or refusing to permit jurors to do so. See United States v. Huebner, 48 F.3d 376, 382 (9th Cir. 1994) ("Huebner does not point out prejudice resulting from any of the few questions [jurors] asked. There was no error or abuse of discretion"); United States v. Gonzales, 424 F.2d 1055, 1056 (9th Cir. 1970) (holding there was no error by trial judge in allowing juror to submit question to court); Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures §　3.5 (2013) (providing practical suggestions).

            Option 1 is for judges who want to disallow jury questions explicitly. Option 2 is for judges who want to tell jurors explicitly that they may submit questions to be asked of witnesses.　

Revised Oct. 2019

            From time to time during the trial, it [may become] [became] necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury [is] [was] present in the courtroom, or by calling a recess. Please understand that while you [are] [were] waiting, we [are] [were] working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error.

            Of course, we [will do] [have done] what we [can] [could] to keep the number and length of these conferences to a minimum. I [may] [did] not always grant an attorney’s request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.　

            Trials proceed in the following way: First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement.

            The plaintiff will then present evidence, and counsel for the defendant may cross-examine. Then the defendant may present evidence, and counsel for the plaintiff may cross-examine.

            After the evidence has been presented, I will instruct you on the law that applies to the case and the attorneys will make closing arguments.

            After that, you will go to the jury room to deliberate on your verdict.

             [Name of party] is representing [himself] [herself] in this trial. This fact must not affect your consideration of the case. Self-represented parties and parties represented by an attorney are entitled to the same fair consideration.

            Because [name of party] is acting as [his] [her] own lawyer, you will hear [him] [her] speak at various times during the trial. [He] [She] may make an opening statement and closing argument and may ask questions of witnesses, make objections, and argue legal issues to the court. I want to remind you that when [name of party] speaks in these parts of the trial, [he] [she] is acting as [his] [her] own advocate, and [his] [her] words are not evidence. The only evidence in this case comes from witnesses who testify under oath on the witness stand or by deposition and from exhibits that are admitted into evidence. When a self-represented party testifies, you should treat this testimony just as you would the testimony of any other witness.　

Added Dec. 2019

At the End of Each Day of the Case: 

            As I indicated before this trial started, you as jurors will decide this case based solely on the evidence presented in this courtroom.  This means that, after you leave here for the night, you must not conduct any independent research about this case, the matters in the case, the legal issues in the case, or the individuals or other entities involved in the case.  This is important for the same reasons that jurors have long been instructed to limit their exposure to traditional forms of media information such as television and newspapers.  You also must not communicate with anyone, in any way, about this case.  And you must ignore any information about the case that you might see while browsing the internet or your social media feeds. 

At the Beginning of Each Day of the Case: 

            As I reminded you yesterday and continue to emphasize to you today, it is important that you decide this case based solely on the evidence and the law presented here.  So you must not learn any additional information about the case from sources outside the courtroom.  To ensure fairness to all parties in this trial, I will now ask each of you whether you have learned about or shared any information about this case outside of this courtroom, even if it was accidental. 

[ALTERNATIVE 1 (in open court): if you think that you might have done so, please let me know now by raising your hand. [Wait for a show of hands].  I see no raised hands; however, if you would prefer to talk to the court privately in response to this question, please notify a member of the court’s staff at the next break.  Thank you for your careful adherence to my instructions.]

[ALTERNATIVE 2 (during voir dire with each juror, individually): Have you learned about or shared any information about this case outside of this courtroom? . . . Thank you for your careful adherence to my instructions.]

Comment 

            This instruction is derived from the model instruction prepared by the Judicial Conference Committee on Court Administration and Case Management in June 2020. 

            The practice in federal court of repeatedly instructing jurors not to discuss the case until deliberations is widespread.  See e.g., United States v. Pino-Noriega, 189 F.3d 1089, 1096 (9th Cir. 1999).  

Created Dec. 2020

            The parties have agreed what [witness]’s testimony would be if called as a witness. You should consider that testimony in the same way as if it had been given here in court. 

Comment

            There is a difference between stipulating that a witness would give certain testimony and stipulating that the facts to which a witness might testify are true. United States v. Lambert, 604 F.2d 594, 595 (8th Cir.1979); United States v. Hellman, 560 F.2d 1235, 1236 (5th Cir.1977). On the latter, see Instruction 2.2 (Stipulations of Fact). 

            The parties have agreed to certain facts [to be placed in evidence as Exhibit __] [that will be read to you]. You must therefore treat these facts as having been proved. 

Comment

            When parties enter into stipulations as to material facts, those facts will be deemed to have been conclusively proved, and the jury may be so instructed. United States v. Mikaelian, 168 F.3d 380, 389 (9th Cir.1999) (citing United States v. Houston, 547 F.2d 104, 107 (9th Cir.1976)), amended by 180 F.3d 1091 (9th Cir.1999).

            The court has decided to accept as proved the fact that [state fact]. You must accept this fact as true. 

Comment            

An instruction regarding judicial notice should be given at the time notice is taken. In a civil case, the Federal Rules of Evidence permit the judge to determine that a fact is sufficiently undisputed to be judicially noticed and requires that the jury be instructed that it is required to accept that fact. Fed. R. Evid. 201(f). In a criminal case, however, the court must instruct the jury that it may or may not accept the noticed fact as conclusive. Id.; see United States v. Chapel, 41 F.3d 1338, 1342 (9th Cir. 1994) (in a criminal case,“the trial court must instruct ‘the jury that it may, but is not required to, accept as conclusive any fact judicially noticed’” (citing Fed. R. Evid. 201(g))); NINTH CIRCUIT MODEL CRIMINAL JURY INSTRUCTION 2.5 (2010) (Judicial Notice). 

Revised March 2025

            A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. [When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.]

            The deposition of [name of witness] was taken on [date]. Insofar as possible, you should consider deposition testimony, presented to you in court in lieu of live testimony, in the same way as if the witness had been present to testify.

[Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.] 

Comment

            This instruction should be used only when testimony by deposition is used in lieu of live testimony. The Committee recommends that it be given immediately before a deposition is to be read. It need not be repeated if more than one deposition is read. If the judge prefers to include the instruction as a part of his or her instructions before evidence, it should be modified appropriately.

            You [are about to [hear] [watch]] [have heard] [watched]] a recording that has been received in evidence. [Please listen to it very carefully.] Each of you [has been] [was] given a transcript of the recording to help you identify speakers and as a guide to help you listen to the recording. However, bear in mind that the recording is the evidence, not the transcript. If you [hear] [heard] something different from what [appears] [appeared] in the transcript, what you heard is controlling. [After] [Now that] the recording has been played, the transcript will be taken from you. 

Comment

            See United States v. Delgado, 357 F.3d 1061, 1070 (9th Cir.2004), abrogated on other grounds by United States v. Katakis, 800 F.3d 1017, 1028 (9th Cir. 2015) (holding that district court properly instructed jury that transcripts were only aids to understanding and that recordings themselves were evidence); United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998) (noting that recording itself is evidence to be considered; transcript is merely aid); see also Instructions 2.6 (Transcript of Recording in Foreign Language), 2.7 (Disputed Transcript of Recording in Foreign Language), and 2.8 (Foreign Language Testimony).

            The Committee recommends that this instruction be given immediately before a recording is played so that the jurors are alerted to the fact that what they hear is controlling. It need not be repeated if more than one recording is played.

            You [are about to [hear] [watch]] [have heard] [watched]] a recording in [specify the foreign language] language. Each of you [has been] [was] given a transcript of the recording that has been admitted into evidence. The transcript is an English-language translation of the recording.

            Although some of you may know the [specify the foreign language] language, it is important that all jurors consider the same evidence. The transcript is the evidence, not the foreign language spoken in the recording. Therefore, you must accept the interpreter’s translation contained in the transcript and disregard any different meaning of the non-English words. 

Comment

            This instruction is appropriate immediately before the jury hears a recorded conversation in a foreign language if the accuracy of the translation is not in issue; it may also be included in the concluding written instructions to the jury. See, e.g., United States v. Rrapi, 175 F.3d 742, 746 (9th Cir.1999); United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998); United States v. Fuentes–Montijo, 68 F.3d 352, 355-56 (9th Cir.1995).

            See Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures§ 3.11.B (2013); see also Instructions 2.5 (Transcript of Recording in English), 2.7 (Disputed Transcript of Recording in Foreign Language) and 2.8 (Foreign Language Testimony).

            You [are about to [hear] [watch]] [have [heard] [watched]] a recordingin the [specify the foreign language] language. A transcript of the recording has been admitted into evidence. The transcript is an English-language translation of the recording. The accuracy of the transcript is disputed in this case.

            Whether a transcript is an accurate translation, in whole or in part, is for you to decide. In considering whether a transcript accurately describes the words spoken in a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, the audibility of the recording, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case.

            Although some of you may know the [specify foreign language] language, it is important that all jurors consider the same evidence. Therefore, you must not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcript must be based on the evidence in the case. 

Comment

            This instruction is appropriateimmediately beforethejury hears arecorded conversation in a foreign language if the parties are unable to produce an official transcript or stipulate to a transcript; it may also be included in the concluding written instructions to the jury.  The jury may consider evidence of bias and credibility as it relates to an interpreter and the interpreter’s translation. See, e.g., United States v. Abonce-Barrera, 257 F.3d 959, 965 (9th Cir. 2001) (defense expert impeached the interpreter’s credibility by testifying “that it was inadvisable to have a participant to a conversation transcribe and translate that conversation”). The court should encourage the parties to produce an official or stipulated transcript of the foreign language recording that satisfies all sides. United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir.1985); United States v. Wilson, 578 F.2d 67, 69-70 (5th Cir. 1978). If the parties are unable to do so, then they should submit competing translations of the disputed passages, and each side may submit evidence supporting the accuracy of its version or challenging the accuracy of the other side’s version. United States v. Franco, 136 F.3d 622, 626 (9th Cir. 1998); Cruz, 765 F.2d at 1023; Wilson, 578 F.2d at 70. Regardless of whether the accuracy of the translated transcript is an issue, a juror cannot rely on any knowledge the juror may have of the foreign language spoken on the recording. United States v. Fuentes-Montijo, 68 F.3d 353, 355 (9th Cir. 1995). 

            See Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures§ 3.11.B (2013); see also Instructions 2.5 (Transcript of Recording in English), 2.6 (Transcript of Recording in Foreign Language) and 2.8 (Foreign Language Testimony).

Revised March 2025

            You [are about to hear] [have heard] testimony of a witness who [will be testifying] [testified] in the [specify the foreign language] language. Witnesses who do not speak English or are more proficient in another language testify through an official court interpreter. Although some of you may know the [specify the foreign language] language, it is important that all jurors consider the same evidence. Therefore, you must accept the interpreter’s translation of the witness’s testimony. You must disregard any different meaning.

            You must not make any assumptions about a witness or a party based solely on the use of an interpreter to assist that witness or party. 

Comment

            As to the use of interpreters, see generally 28 U.S.C. § 1827.

            See United States v. Franco, 136 F.3d 622, 626 (9th Cir.1998) (holding that district court properly instructed jury that it must accept translation of foreign language tape-recording when accuracy of translation is not in issue); United States v. Rrapi, 175 F.3d 742, 746 (9th Cir.1999); United States v. Fuentes–Montijo, 68 F.3d 352, 355-56 (9th Cir.1995); Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.11.B (2013).

            See also Instructions 2.5 (Transcript of Recording in English), 2.6 (Transcript of Recording in Foreign Language) and 2.7 (Disputed Transcript of Recording in Foreign Language).

            The evidence that a witness [e.g., has been convicted of a crime, lied under oath on a prior occasion, etc.] may be considered, along with all other evidence, in deciding whether or not to believe the witness and how much weight to give to the testimony of the witness and for no other purpose.

Comment

            See Fed. R. Evid. 608–09; United States v. Hankey, 203 F.3d 1160, 1173 (9th Cir.2000) (finding that district court properly admitted impeachment evidence following limiting instruction to jury). If this instruction is given during the trial, the Committee recommends giving the second sentence in numbered paragraph 3 of Instruction 1.10 (What Is Not Evidence) with the concluding instructions. See also Instruction 1.11 (Evidence for Limited Purpose).

            [Arrangements have been made to conduct a test or experiment.] [A test or experiment was conducted.]

            [Observe] [You observed] the conditions under which that test or experiment [is] [was] made. These conditions may or may not duplicate the conditions and other circumstances that existed at the time and place of the incident involved in this case.

            It is for you to decide what weight, if any, you give to the test or experiment.  

Comment

           See d’Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 890 (9th Cir.1977) (holding that district court properly allowed experiment evidence regarding flammability of carpet sample despite differences between test fire and actual fire); Canada Life Assur. Co. v. Houston, 241 F.2d 523, 537 (9th Cir. 1957) ("[T]he conditions surrounding a test or experiment of this nature need not be identical with those existing at the time of the occurrence in question provided there is a substantial similarity.") (internal quotations omitted).

            Evidence [will now be] [was] presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers were given in writing and under oath before the trial in response to questions that were submitted under established court procedures. You should consider the answers, insofar as possible, in the same way as if they were made from the witness stand. 

Comment

            Use this oral instruction before interrogatories and answers are read to the jury; it may also be included in the concluding written instructions to the jury. The attorney should warn the judge ahead of time and give the judge an opportunity to give this oral instruction. This oral instruction is not appropriate if answers to interrogatories are being used for impeachment only.

            Do not use this instruction for requests for admission under Fed. R. Civ. P. 36. The effect of requests for admission under the rule is not the same as the introduction of evidence through interrogatories. See Instruction 2.12 (Use of Requests for Admission).

            Evidence [will now be] [was] presented to you in the form of admissions to the truth of certain facts. These admissions were given in writing before the trial, in response to requests that were submitted under established court procedures. You must treat these facts as having been proved. 

Comment

            See Fed. R. Civ. P. 36 ("A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended."). A court may properly exclude evidence at trial that is inconsistent with a Rule 36 admission. 999 v. C.I.T. Corp., 776 F.2d 866, 869 (9th Cir.1985). 

            Use this oral instruction before admissions are read to the jury; it may also be included in the concluding written instructions to the jury. The attorney should warn the judge ahead of time and give the judge an opportunity to give this oral instruction.

            Do not use this instruction for interrogatories. The effect of requests for admission is not the same as the introduction of evidence through interrogatories. See Instruction 2.11 (Use of Interrogatories of a Party).

            You [have heard] [are about to hear] testimony from [name] who [testified] [will testify] about [his] [her]opinions and the reasons for those opinions. This opinion testimony is allowed, because of the specialized knowledge, skill, experience, training, or education of this witness.

            Such opinion testimony should be judged like any other testimony. You may accept it or reject it and give it as much weight as you think it deserves, considering the witness’s specialized knowledge, skill, experience, training, or education, the reasons given for the opinion, and all the other evidence in the case. 

 Comment

            See Fed. R. Evid. 702-05.

            According to Federal Rule of Evidence 702, “the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed R. Evid. 702(a). An expert’s general qualifications alone do not satisfy Federal Rule of Evidence 702, which governs the admissibility of expert opinion. See, e.g., United States v. Rodriguez, 971 F.3d 1005, 1018 (9th Cir. 2020). Instead, district courts must ensure an expert’s methods of forming her opinions “are both reliable and adequately explained.” Id. (quoting United States v. Vera, 770 F.3d 1232, 1241 (9th Cir. 2014)). Under Federal Rule of Evidence 703, an expert’s opinion must be based on facts or data in the case that the expert has been made aware of or personally observed. Fed. R. Evid. 703. The facts and data need not be admissible so long as experts in the particular field would reasonably rely on such facts and data. Id.

            This instruction avoids labeling the witness as an "expert." If the court refrains from designating the witness as an "expert," this will "ensure[] that trial courts do not inadvertently put their stamp of authority" on a witness’s opinion and will protect against the jury’s being "overwhelmed by the so-called ‘experts.’" See Fed. R. Evid. 702 advisory committee’s note (2000) (quoting Hon. Charles Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word "Expert" Under the Federal Rules of Evidence in Criminal and Civil Jury Trials, 154 F.R.D. 537, 559 (1994).

            In addition, Fed. R. Evid. 703 (as amended in 2000) provides that facts or data that are the basis for an expert’s opinion but are otherwise inadmissible may nonetheless be disclosed to the jury if the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

This instruction is appropriate for a witness who provides only expert opinion testimony. If the same witness provides expert opinion testimony and percipient witness testimony (whether fact testimony, lay opinion testimony, or both), these different roles should be clarified for the jury, even in a civil case. Model Criminal Instruction 3.15 (Dual Role Testimony) provides guidance.

In BillFloat Inc. v. Collins Cash Inc., 105 F.4th 1269, 1276-77 (9th Cir. 2024), the plaintiff alleged trademark infringement. At trial, the plaintiff did not present survey evidence showing consumer confusion but was not required to do so. The defendant, however, called an expert witness who had conducted a survey that purportedly showed an absence of consumer confusion. The plaintiff also called an expert witness, who simply challenged the opinions of the defendant’s expert. The Ninth Circuit held that the district court did not abuse its discretion by declining to instruct the jury that it “should not draw any inference about the existence or absence of consumer confusion from the fact that Plaintiff did not also offer market survey evidence,” explaining that a jury is free to “use its common sense and experience when weighing the evidence offered by the parties, including the absence of a survey.”

Revised March 2025

            Certain charts and summaries not admitted into evidence [may be] [have been] shown to you in order to help explain the contents of books, records, documents, or other evidence in the case. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.  

Comment

            This instruction applies only when the charts and summaries are not admitted into evidence and are used for demonstrative purposes. Demonstrative materials used only as testimonial aids should not be permitted in the jury room or otherwise used by the jury during deliberations. See United States v. Wood, 943 F.2d 1048, 1053-54 (9th Cir.1991)(citing United States v. Soulard, 730 F.2d 1292, 1300 (9th Cir.1984)); see also Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.10.A (2013).

            Certain charts and summaries [may be] [have been] admitted into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the testimony or other admitted evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves. 

Comment

            This instruction applies when the charts and summaries are received into evidence. See United States v. Anekwu, 695 F.3d 967, 981 (9th Cir.2012)("[T]he proponent of a summary must demonstrate the admissibility of the underlying writings or records summarized, as a condition precedent to introduction of the summary into evidence under [Fed. R. Evid. Evid.] 1006.") (quoting United States v. Johnson, 594 F.2d 1253, 1257 (9th Cir.1979)); United States v. Rizk, 660 F.3d 1125, 1130-31 (9th Cir.2011); see also Fed. R. Evid. 1006; Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 3.10.A (2013). This instruction may be unnecessary if there is no dispute as to the accuracy of the chart or summary.

            Those exhibits received in evidence that are capable of being displayed electronically will be provided to you in that form, and you will be able to view them in the jury room. A computer, projector, printer and accessory equipment will be available to you in the jury room.

            A court technician will show you how to operate the computer and other equipment; how to locate and view the exhibits on the computer; and how to print the exhibits. You will also be provided with a paper list of all exhibits received in evidence. You may request a paper copy of any exhibit received in evidence by sending a note through the [clerk] [bailiff].) If you need additional equipment or supplies or if you have questions about how to operate the computer or other equipment, you may send a note to the [clerk] [bailiff], signed by your foreperson or by one or more members of the jury. Do not refer to or discuss any exhibit you were attempting to view.

            If a technical problem or question requires hands-on maintenance or instruction, a court technician may enter the jury room with [the clerk] [the bailiff] present for the sole purpose of assuring that the only matter that is discussed is the technical problem. When the court technician or any nonjuror is in the jury room, the jury shall not deliberate. No juror may say anything to the court technician or any nonjuror other than to describe the technical problem or to seek information about operation of the equipment. Do not discuss any exhibit or any aspect of the case.

            The sole purpose of providing the computer in the jury room is to enable jurors to view the exhibits received in evidence in this case. You may not use the computer for any other purpose. At my direction, technicians have taken steps to ensure that the computer does not permit access to the Internet or to any "outside" website, database, directory, game, or other material. Do not attempt to alter the computer to obtain access to such materials. If you discover that the computer provides or allows access to such materials, you must inform the court immediately and refrain from viewing such materials. Do not remove the computer or any electronic data [disk] from the jury room, and do not copy any such data.  

Comment 

            This instruction is premised on the assumption that either the court has ordered these procedures or the parties have agreed to the availability of electronic display devices in the jury room and to the procedures set forth in the instruction. If the parties’ agreement is in the form of a written stipulation, the stipulation should be subject to approval by the judge and entered as an order. The following are possible provisions in such a stipulation:

            1. The parties agree to an allocation of the costs of providing the necessary equipment, including the computer, hard drive, projector, cable, printer, monitor and other accessories.

            2. The parties jointly arrange to load images of the admitted exhibits onto a hard drive in "PDF" format. (This format is meant to assure maximum security.) They will ensure that the hard drive contains only such items and nothing else.

            3. The parties jointly compile a document entitled "Admitted Exhibit List" that consists of all trial exhibits actually received into evidence, listed in numerical order and containing the date (where available) and a brief description of the exhibit. The Admitted Exhibit List should be text searchable. (In complicated or document-laden cases, it would be advisable for the parties to prepare a second exhibit list that would contain the same information, except that the exhibits would be listed in chronological order. That second list would be made available to the jury in "hard copy," not electronic form.)

            4. Before the jury retires to deliberate, the parties will review the notebook computer, the exhibit list interface and the images of the exhibits, to ensure their accuracy. Unless a party objects before the jury retires to deliberate, that party waives all objections to the materials and equipment submitted to the jury.

            5. The parties will maintain at the courthouse a backup notebook computer and a backup hard drive with images and data identical to what was loaded onto the hard drive sent into the jury room.

            If the jury encounters a technical problem after it has begun to deliberate, the jury should communicate that issue in writing to the court. The technician may require and receive information from one or more jurors about the difficulty the jury is encountering. In many instances, the court technician will need to re-enter the jury room to address the problem. It is conceivable that the technician will be exposed to evidence that the jury was attempting to view or at least to the exhibit number(s) of such evidence. If the jurors themselves developed charts, summaries, vote tallies or other indicia of their deliberations, or if they wrote summaries of their findings thus far, the technician might be exposed to that information. (E.g., such matters could have been placed on a blackboard or in summaries strewn about the jury table.) The Committee suggests that in the event a nonjuror might be required to enter the jury room to deal with a technical problem, the judge should sua sponte raise these and related issues with counsel before authorizing such entry. Among the factors that the judge and counsel should discuss are the following:

            (a) Can the technical problem be addressed without entry into the room; e.g., by removing the equipment for examination outside the presence of jurors?

            (b) Can the technical problem be addressed without any information from the jury other than an innocuous statement to the effect that (for example) "the printer isn’t working"?

            (c) Can the risk of even inadvertent disclosure of the jury’s deliberations be eliminated by instructing the jury to cover any charts and to remove or conceal any papers, etc.?

            (d) Should the technician, bailiff or clerk be sworn in, with an oath that requires him or her not to disclose whatever he or she sees or hears in the jury room, except for the nature of the technical problem and whether the problem has been fixed?

            Whether or not these or other appropriate precautions to minimize or eliminate the risk of disclosure are taken, the judge may consider giving the jury this instruction:

            You have informed me that there is a technical problem that has interfered with your ability to review evidence electronically. I will send a technician into the jury room to deal with the problem while you are out of the deliberation room on a break. Please do not allow any materials reflecting any aspect of your deliberations to be visible during the technician’s presence.

            In a criminal case, the judge should not permit any tape-recorded conversation or evidence to be included in the electronic evidence loaded onto the hard drive that contains the PDF files, because under Fed. R. Crim. P. 43, the defendant has a right to be present at the replaying of a tape. United States v. Felix-Rodriguez, 22 F.3d 964, 966-67 (9th Cir.1994). 

            Before you begin your deliberations, elect one member of the jury as your presiding juror. The presiding juror will preside over the deliberations and serve as the spokesperson for the jury in court.

            You shall diligently strive to reach agreement with all of the other jurors if you can do so. Your verdict must be unanimous.

            Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to their views.

            It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not be unwilling to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or change an honest belief about the weight and effect of the evidence simply to reach a verdict. 

Comment

            A jury verdict in a federal civil case must be unanimous, unless the parties stipulate otherwise. Murray v. Laborers Union Local No. 324, 55 F.3d 1445, 1451 (9th Cir.1995) (citing Johnson v. Louisiana, 406 U.S. 356, 369-70 n.5 (1972)); see also Fed. R. Civ. P. 48(b). A federal civil jury must also unanimously reject any affirmative defenses before it may find a defendant liable and proceed to determine damages. Jazzabi v. Allstate Ins. Co., 278 F.3d 979, 985 (9th Cir.2002).

            Because you must base your verdict only on the evidence received in the case and on these instructions, I remind you that you must not be exposed to any other information about the case or to the issues it involves. Except for discussing the case with your fellow jurors during your deliberations.

            Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it.  This includes discussing the case in person, in      writing, by phone, tablet, computer, or any other means, via email, via text messaging, or any internet chat room, blog, website or application, including but not limited to Facebook, YouTube, Twitter, Instagram,        LinkedIn, Snapchat, TikTok, or any other forms of social media.  This applies to communicating with your family members, your employer, the media or press, and the people involved in the trial.  If you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court.

            Do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it[, although I have no information that there will be news reports about this case]; do not do any research, such as consulting dictionaries, searching the Internet, or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own. Do not visit or view any place discussed in this case, and do not use Internet programs or other devices to search for or view any place discussed during the trial. Also, do not do any research about this case, the law, or the people involved—including the parties, the witnesses or the lawyers—until you have been excused as jurors. If you happen to read or hear anything touching on this case in the media, turn away and report it to me as soon as possible.

            These rules protect each party’s right to have this case decided only on evidence that has been presented here in court. Witnesses here in court take an oath to tell the truth, and the accuracy of their testimony is tested through the trial process. If you do any research or investigation outside the courtroom, or gain any information through improper communications, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial jury, and if you decide the case based on information not presented in court, you will have denied the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very important that you follow these rules.

            A juror who violates these restrictions jeopardizes the fairness of these proceedings[, and a mistrial could result that would require the entire trial process to start over]. If any juror is exposed to any outside information, please notify the court immediately. 

Revised Dec. 2020

            If it becomes necessary during your deliberations to communicate with me, you may send a note through the [marshal] [bailiff], signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone—including me—how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

Comment

            If during jury deliberations a request is made by the jury or by one or more jurors for a readback of a portion or all of a witness’s testimony, and the court in exercising its discretion determines after consultation with the lawyers that a readback should be allowed, the Committee recommends the following admonition be given in open court with both sides present:

           Because a request has been made for a [readback] [playback] of the testimony of [witness’s name] it is being provided to you, but you are cautioned that all [readbacks] [playbacks] run the risk of distorting the trial because of overemphasis of one portion of the testimony. [Therefore, you will be required to hear all the witness’s testimony on direct and cross-examination, to avoid the risk that you might miss a portion bearing on your judgment of what testimony to accept as credible.] [Because of the length of the testimony of this witness, excerpts will be [read] [played].] The [readback] [playback] could contain errors. The [readback] [playback] cannot reflect matters of demeanor [, tone of voice,] and other aspects of the live testimony. Your recollection and understanding of the testimony controls. Finally, in your exercise of judgment, the testimony [read] [played] cannot be considered in isolation, but must be considered in the context of all the evidence presented.

            Although a court has broad discretion to read back excerpts or the entire testimony of a witness when requested by a deliberating jury, precautionary steps should be taken. Absent the parties’ stipulation to a different procedure, the jury should be required to hear the readback in open court, with counsel for both sides present, and after giving the admonition set out above. See United States v. Newhoff, 627 F.3d 1163, 1167 (9th Cir.2010); see also JURY INSTRUCTIONS COMMITTEE OF THE NINTH CIRCUIT, A MANUAL ON JURY TRIAL PROCEDURES § 5.1.C (2013).

            A verdict form has been prepared for you. [Explain verdict form as needed.] After you have reached unanimous agreement on a verdict, your [presiding juror] [foreperson] should complete the verdict form according to your deliberations, sign and date it, and advise the [clerk] [bailiff] that you are ready to return to the courtroom.  

Comment 

            The judge may also wish to explain to the jury the particular form of verdict being used.

            At this point I will give you an additional instruction. By giving an additional instruction at this time, I do not mean to emphasize this instruction over any other instruction.

            You are not to attach undue importance to the fact that this instruction was read separately to you. You must consider this instruction together with all of the other instructions that were given to you.

            [Insert text of new instruction.]

            You will now retire to the jury room and continue your deliberations. 

Comment

            Use this instruction for giving an additional instruction to a jury while it is deliberating. If the jury has a copy of the instructions, send the additional instruction to the jury room. Unless the additional instruction is by consent of both parties, both sides must be given an opportunity to take exception or object to it. If this instruction is used, it should be made a part of the record. The judge and attorneys should make a full record of the proceedings.

            See Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 5.1.B (2013). 

            Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you.

            As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with the other jurors. During your deliberations, you should not be unwilling to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of the other jurors or for the mere purpose of returning a verdict.

            All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.

            I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.

            You may now return to the jury room and continue your deliberations.  

Comment

            Before giving any supplemental jury instruction to a deadlocked jury, the Committee recommends the court review Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures § 5.5 (2013); see also Warfield v. Alaniz, 569 F.3d 1015, 1029 (9th Cir.2009) (finding no error in standard Allen charge issued to deadlocked jury).

            [One] [Some] of your fellow jurors [has] [have] been excused from service and will not participate further in your deliberations. You should not speculate about the reason the [juror is] [jurors are] no longer present.

            You should continue your deliberations with the remaining jurors. Do not consider the opinions of the excused [juror] [jurors] as you continue deliberating. All the previous instructions given to you still apply, including the requirement that all the remaining jurors unanimously agree on a verdict.  

Comment

            A court may not seat a jury of fewer than six nor more than twelve jurors. See Fed. R. Civ. P. 48. The selection of alternate jurors in civil trials has been discontinued. See Advisory Committee Note, Fed. R. Civ. P. 47(b) (1991).

            Now that the case has been concluded, some of you may have questions about the confidentiality of the proceedings. Now that the case is over, you are free to discuss it with any person you choose. By the same token, however, I would advise you that you are under no obligation whatsoever to discuss this case with any person.

            [If you do decide to discuss the case with anyone, I would suggest you treat it with a degree of solemnity in that whatever you do decide to say, you would be willing to say in the presence of the other jurors or under oath here in open court in the presence of all the parties.]

            [Finally, always bear in mind that if you do decide to discuss this case, the other jurors fully and freely stated their opinions with the understanding they were being expressed in confidence. Please respect the privacy of the views of the other jurors.]

            [Finally, if you would prefer not to discuss the case with anyone, but are feeling undue pressure to do so, please feel free to contact the courtroom deputy, who will notify me and I will assist.]　

Comment

            See Jury Instructions Committee of the Ninth Circuit, A Manual on Jury Trial Procedures,§ 6.1 (2013). 

Added Dec. 2019

            All parties are equal before the law and a [corporation] [partnership] is entitled to the same fair and conscientious consideration by you as any party.

            Under the law, a corporation is considered to be a person. It can only act through its employees, agents, directors, or officers. Therefore, a corporation is responsible for the acts of its employees, agents, directors, and officers performed within the scope of authority.

            A partnership can only act through its employees, agents, or partners. Therefore, a partnership is responsible for the acts of its employees, agents, and partners performed within the scope of authority

            An agent is a person who performs services for another person under an express or implied agreement and who is subject to the other’s control or right to control the manner and means of performing the services. The other person is called a principal. [One may be an agent without receiving compensation for services.] [The agency agreement may be oral or written.]

            An agent is acting within the scope of authority if the agent is engaged in the performance of duties which were expressly or impliedly assigned to the agent by the principal.

            If [name of alleged principal] has intentionally or unintentionally caused the [plaintiff] [defendant] to believe that [name of alleged agent] was the principal’s agent, a relationship known as "apparent agency" may be created, even if no actual authority was ever given to the agent. Apparent agency, however, can never arise solely from the acts of the alleged agent.

            In order to establish apparent agency, the [plaintiff] [defendant] must prove that:

            First, the alleged principal caused, by representation or action, the [plaintiff] [defendant] to believe that [name of alleged agent] was the principal’s agent;

            Second, the [plaintiff] [defendant] relied on this representation or action to [his] [her] [its] detriment; and

            Third,such reliance was reasonably justified.

            If an apparent agency has been established, the principal is liable for the acts of the apparent agent just as if the principal had authorized the agent from the outset.

Revised March 2025    

            A purported principal who ratifies the acts of someone who was purporting to act as the principal’s agent will be liable for the acts of that purported agent, provided that the principal made a conscious and affirmative decision to approve the relevant acts of the purported agent while in possession of full and complete knowledge of all relevant events.

Comment

            See United States v. Alaska S. S. Co.,491 F.2d 1147, 1155 (9th Cir.1974) ("Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.") (quoting Restatement (Second) of Agency § 82 (1958)); Witt v. United States, 319 F.2d 704, 710 (9th Cir. 1963) ("The doctrine of ratification has as its foundation, knowledge of all the facts.") (citation and quotation marks omitted).

Revised March 2025

            Any act or omission of an agent within the scope of authority is the act or omission of the principal.

            The defendants are sued as principal and agent. The defendant [name of principal] is the principal and the defendant [name of agent] is the agent. If you find against [name of agent], then you must also find against [name of principal]. However, if you find for [name of agent], then you must also find for [name of principal].

            [Name of agent] was the agent of the defendant [name of principal], and, therefore, any act or omission of [name of agent] was the act or omission of [name of principal].

            [Defendant [name of alleged principal] is sued as the principal and the defendant [name of alleged agent] as the agent. [It is denied that any agency existed.] [It is [also] denied that [name of alleged agent] was acting within the scope of authority as an agent of [name of alleged principal].]]

            If you find that [name of alleged agent] [was the agent of [name of alleged principal]] [and] [was acting within the scope of authority], and if you find against [name of alleged agent], then you must also find against [name of alleged principal]. If you do not find against [name of alleged agent], then you must find for both [name of alleged principal] and [name of alleged agent].

            If you find against [name of alleged agent], but do not find that [name of alleged agent] was acting within the scope of authority as an agent of [name of alleged principal], then you must find that [name of alleged principal] is not liable.

            The defendant [name of alleged principal] is sued as a principal. The plaintiff claims that [name of alleged agent] was acting as [name of alleged principal]’s agent. [Name of alleged principal] [denies that [name of alleged agent] was acting as [name of alleged principal]’s agent] [admits that [name of alleged agent] was acting as [name of alleged principal]’s agent] [and] [denies that [name of alleged agent] was acting within the scope of authority.]

            If you find that [name of alleged agent] [was the agent of [name of alleged principal] and] was acting within the scope of authority, then any act or omission of [name of alleged agent] was the act or omission of [name of alleged principal].

            If you find that [name of alleged agent] was not acting within the scope of authority as [name of alleged principal]’s agent, then you must find for [name of alleged principal].

            If you find that [name of alleged agent] was acting solely for [his/her] own purposes or those of a third party, then [name of the alleged agent]’s acts or omissions are not considered the acts or omissions of defendant [name of alleged principal].

            [However, if you find that plaintiff dealt with [name of agent] in good faith and did not know, or have reason to know, that [name of agent] was acting against the interests of defendant [name of alleged principal], then you may find defendant [name of alleged principal] liable if you find that [name of agent] acted within [his/her] authority.]

            [However, if you find that defendant [name of alleged principal] ratified or knowingly received a benefit from the acts or omissions of [name of agent], then you may find defendant [name of alleged principal] liable if you find that [name of agent] acted within [his/her] authority.]

            [However, if you find that [name of agent] was the sole [representative of/officer in charge of] defendant [name of alleged principal], then you may find defendant [name of alleged principal] liable if you find that [name of agent] acted within [his/her] authority.] 

Comment

            The adverse interest exception is narrow and generally requires "an agent to completely abandon the principal’s interests and act entirely for his own purposes." Cement & Concrete Workers Dist. Council Pension Fund v. Hewlett Packard Co., 964 F. Supp. 2d 1128, 1144-45 (N.D. Cal. 2013) (quoting USACM Liquidating Trust v. Deloitte & Touche LLP, 764 F. Supp. 2d 1210, 1218 (D.Nev. 2011)).

            An independent contractor is a person who performs services for another person under an express or implied agreement and who is not subject to the other’s control of, or right to control, the manner and means of performing the services.

            One who engages an independent contractor is not liable to others for the acts or omissions of the independent contractor. 

Comment

            The second paragraph of this instruction does not apply to nondelegable duties. See M.J. ex rel. Beebe v. United States, 721 F.3d 1079, 1085 (9th Cir.2013) (discussing nondelegable duties under Alaska law); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989) (defining independent contractor).

            A partnership is an association of two or more persons to carry on a business as co-owners. The members of a partnership are called partners.　

            A partner is acting within the scope of the partnership business when doing anything which is either expressly or impliedly authorized by the partnership or which is in furtherance of the partnership business.

            An act or omission of a partner within the scope of the partnership business is the act or omission of all partners.

            The defendants [names of partners] are partners. [Name of partner] was acting on behalf of the partnership and within the scope of authority. Therefore, if you decide for the plaintiff, your verdict must be against all of the partners.

            The defendant [name of acting partner] and the defendant [name of nonacting partner] are partners.

            It is denied that [name of acting partner] was acting within the scope of the partnership business.

            If the defendant [name of acting partner] was acting within the scope of the partnership business, and if you find against [name of acting partner], then you must find against [both] [all] defendants.

            If you find for [name of acting partner], then you must find for [all] [both] defendants.

            If you find against [name of acting partner], but you do not find that [name of acting partner] was acting within the scope of the partnership business, then you must find for the defendant [name of nonacting partner].

            The defendant [name of acting partner] and the defendants [names of nonacting partners] are sued as partners.

            It is denied that any partnership existed.

            If you find that [name of acting partner] and [names of nonacting partners] were partners and that [acting partner] was acting within the scope of the partnership business, and if you find against [acting partner], then you must find against [both] [all] defendants.

            If you find against [name of acting partner], but you either find there was no partnership or that [name of acting partner] was not acting within the scope of the partnership business, then, in either case, you must find for the defendants [names of nonacting partners].

            If you find for [acting partner], then you must find for [both] [all] of the defendants.

            It is the duty of the Court to instruct you about the measure of damages.  By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered.

            If you find for the plaintiff [on the plaintiff’s [specify type of claim] claim], you must determine the plaintiff’s damages.  The plaintiff has the burden of proving damages by a preponderance of the evidence.  Damages means the amount of money that will reasonably and fairly compensate the plaintiff for any injury you find was caused by the defendant.  You should consider the following: 

            [Insert types of damages.  See Instruction 5.2 (Measures of Types of Damages)] 

            It is for you to determine what damages, if any, have been proved. 

            Your award must be based upon evidence and not upon speculation, guesswork or conjecture. 

Comment 

            If liability is not disputed, this instruction should be modified accordingly.

             In determining the measure of damages, you should consider: 

            [The nature and extent of the injuries;] 

            [The [disability] [disfigurement] [loss of enjoyment of life] experienced [and that with reasonable probability will be experienced in the future];] 

            [The [mental,] [physical,] [emotional] pain and suffering experienced [and that with reasonable probability will be experienced in the future];] 

            [The reasonable value of necessary medical care, treatment, and services received to the present time;] 

            [The reasonable value of necessary medical care, treatment, and services that with reasonable probability will be required in the future;] 

            [The reasonable value of [wages] [earnings] [earning capacity] [salaries] [employment] [business opportunities] [employment opportunities] lost up to the present time;] 

            [The reasonable value of [wages] [earnings] [earning capacity] [salaries] [employment] [business opportunities] [employment opportunities] that with reasonable probability will be lost in the future;] 

            [The reasonable value of necessary [household help] [services other than medical] [and] [expenses] required up to the present time;] 

            [The reasonable value of necessary [household help] [services other than medical] [and] [expenses] that with reasonable probability will be required in the future;] 

            [The reasonable value of necessary repairs to any property that was damaged;] 

            [The difference between the fair market value of any damaged property immediately before the occurrence and its fair market value immediately thereafter;] [and] 

            [The reasonable value of necessary repairs to any property that was damaged plus the difference between the fair market value of the property immediately before the occurrence and its fair market value after it is repaired.] 

            [The lesser of the following: 

1.         the reasonable cost of necessary repairs to any property that was damaged plus the difference between the fair market value of the property immediately before the occurrence and its fair market value after it is repaired; or 

2.         the difference between the fair market value of the property immediately before the occurrence and the fair market value of the unrepaired property immediately after the occurrence.] 

            [Such sum as will reasonably compensate for any loss of use of any damaged property during the time reasonably required for its [repair] [replacement].] 

Comment 

            Insert only the appropriate bracketed items from this instruction into Instruction 5.1 (Damages—Proof). Additional paragraphs may have to be drafted to fit other types of damages. Particular claims may have special rules on damages.  See, e.g., Instructions 7.11 (Maintenance and Cure—Elements and Burden of Proof), 11.13 (Age Discrimination—Damages—Back Pay—Mitigation), and 11.14 (Age Discrimination—Damages—Willful Discrimination—Liquidated Damages). 

            Punitive and compensatory damages are subject to caps in Title VII cases.  See 42 U.S.C. 1981a(b)(3). Regarding the amount of damages available under Title VII, see Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148 (9th Cir. 1999).  The cap does not apply to front pay and back pay.  See Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 848 (2001).  See also Caudle v. Bristow Optical Co., 224 F.3d 1014, 1020 (9th Cir. 2000) (defining front pay and back pay); Introductory Comment to Chapter 10. 

           In Title VII and ADA cases, the court, not the jury, determines the amount of back pay as a discretionary, equitable remedy. Lutz v. Glendale Union High School, 403 F.3d 1061, 1069 (9th Cir. 2005) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 415-16 (1975)). Under the Family Medical Leave Act, the court, not the jury, determines the amount of front pay. Traxler v. Multnomah Cnty., 596 F.3d 1007, 1012 (9th Cir. 2010) (“[T]he court’s power under the FMLA to award front pay, as an alternative to reinstatement, is derived solely from the statutory provision permitting the court toaward ‘such equitable relief as may be appropriate.’”) (quoting 29 U.S.C. § 2617(a)(1)(B)). However, in an Age Discrimination in Employment Act (“ADEA”) case,  an ADEA plaintiff  has a right to a jury trial on the issue of back pay, as well as any mitigation issues. See Lorillard v. Pons, 434 U.S. 575, 582-83 (1978) (characterizing this remedy as “legal”); Tamosaitis v. URS Inc., 781 F.3d 468, 485 (9th Cir. 2015) (discussing Lorillard).

Revised March 2025

            The plaintiff has a duty to use reasonable efforts to mitigate damages.  To mitigate means to avoid or reduce damages. 

            The defendant has the burden of proving by a preponderance of the evidence:

             First, that the plaintiff failed to use reasonable efforts to mitigate damages; and

             Second, the amount by which damages would have been mitigated. 

Comment 

            As to mitigation of damages in an action under the Age Discrimination in Employment Act, see Instruction 11.13 (Age Discrimination—Damages—Back Pay—Mitigation).

Revised March 2025

            [Any award for future economic damages must be for the present cash value of those damages.] 

            [Noneconomic damages [such as [pain and suffering] [disability] [disfigurement] [and] [specify other noneconomic damages]] are not reduced to present cash value.] 

            Present cash value means the sum of money needed now, which, when invested at a reasonable rate of return, will pay future damages at the times and in the amounts that you find the damages [will be incurred] [or] [would have been received]. 

            The rate of return to be applied in determining present cash value should be the interest that can reasonably be expected from safe investments that can be made by a person of ordinary prudence, who has ordinary financial experience and skill.  [You should also consider decreases in the value of money that may be caused by future inflation.] 

Comment 

            There must be evidence to support this instruction.  See Monessen Sw. Ry. Co. v. Morgan, 486 U.S. 330, 339-42 (1988); see also Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 508-09 (9th Cir. 2000).

            If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are to punish a defendant and to deter similar acts in the future.  Punitive damages may not be awarded to compensate a plaintiff. 

            The plaintiff has the burden of proving by [a preponderance of the evidence] [clear and convincing evidence] that punitive damages should be awarded and, if so, the amount of any such damages. 

            You may award punitive damages only if you find that the defendant’s conduct that harmed the plaintiff was malicious, oppressive or in reckless disregard of the plaintiff’s rights.  Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring the plaintiff.  Conduct is in reckless disregard of the plaintiff’s rights if, under the circumstances, it reflects complete indifference to the plaintiff’s safety or rights, or if the defendant acts in the face of a perceived risk that its actions will violate the plaintiff’s rights under federal law.  An act or omission is oppressive if the defendant injures or damages or otherwise violates the rights of the plaintiff with unnecessary harshness or severity, such as by misusing or abusing authority or power or by taking advantage of some weakness or disability or misfortune of the plaintiff.

            If you find that punitive damages are appropriate, you must use reason in setting the amount.  Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice, or sympathy toward any party.  In considering the amount of any punitive damages, consider the degree of reprehensibility of the defendant’s conduct [, including whether the conduct that harmed the plaintiff was particularly reprehensible because it also caused actual harm or posed a substantial risk of harm to people who are not parties to this case.  You may not, however, set the amount of any punitive damages in order to punish the defendant for harm to anyone other than the plaintiff in this case].  

            [In addition, you may consider the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff.] 

            [Punitive damages may not be awarded against [specify defendant.]  [You may impose punitive damages against one or more of the defendants and not others and may award different amounts against different defendants.]  [Punitive damages may be awarded even if you award plaintiff only nominal, and not compensatory, damages.]

Comment 

            Punitive damages are not available in every case.  For example, punitive damages are not available against municipalities, counties or other governmental entities unless expressly authorized by statute.  City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-71 (1981); see also Daniel v. Nat’l Park Serv., 891 F.3d 762, 771 (9th Cir. 2018) (“There is a ‘presumption against the imposition of punitive damages on governmental entities.’”) (quoting Vt. Agency of Nat.Res.v.U.S.exrel.Stevens,529U.S.765,785(2000)).  Punitive damages may, however, be available against governmental employees acting in their individual capacities.  See Monell v. New York City Dept. of Soc. Services, 436 U.S. 658 (1978); City of Newport, 453 U.S. at 254.  In diversity cases, look to state law for an appropriate instruction.

            Whether and under what criterion punitive damages are available depends upon the substantive standards applicable to the underlying claim for relief, and, therefore, the third paragraph of this instruction should be modified accordingly. 

            As to Title VII claims, an employer may be liable for punitive damages when the employer “discriminate[s] in the face of a perceived risk that its actions will violate federal law.”  Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 515 (9th Cir. 2000) (citing Kolstad v. American Dental Ass’n., 527 U.S. 526, 536 (1999).  See also Caudle v. Bristol Optical Co., 224 F.3d 1014, 1026-27 (9th Cir. 2000).  Punitive and compensatory damages are subject to caps in Title VII cases.  See 42 U.S.C. § 1981a(b)(3); Arizona v. ASARCO LLC, 773 F.3d 1050 (9th Cir. 2014) (en banc) (analyzing constitutionality of punitive damages under § 1981(b) when only nominal damages are awarded). 

            As to § 1983 claims, “[i]t is well-established that a ‘jury may award punitive damages . . . either when a defendant’s conduct was driven by evil motive or intent, or when it involved a reckless or callous indifference to the constitutional rights of others.’”  Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993).  In Dang v. Cross, the Ninth Circuit held this “statement of the law of punitive damages is incomplete, however.  The standard for punitive damages under § 1983 mirrors the standard for punitive damages under common law tort cases.  . . .   [M]alicious, wanton, or oppressive acts or omissions are within the boundaries of traditional tort standards for assessing punitive damages and foster ‘deterrence and punishment over and above that provided by compensatory awards.’  . . .  Such acts are therefore all proper predicates for punitive damages under § 1983.”  422 F.3d 800, 807 (9th Cir. 2005) (citing Smith v. Wade, 416 U.S. 30, 49 (1983)).  The Dang court held it was reversible error to decline to instruct that “oppressive acts” were an alternative basis for punitive damages in a § 1983 case. 

            Similarly, punitive damages claim arising under state law are subject to state law standards for recovery which should be reflected in a modified jury instruction.  See, e.g., Coughlin v. Tailhook Ass’n, 112 F.3d 1052, 1056 (9th Cir. 1997). 

            Further, punitive damages are not an available remedy on an unseaworthiness or Jones Act claims. Dutra Grp. v. Batteron, 588 U.S. 358 (2019) rev’g Batteron v. Dutra Grp., 880 F.3d 1089 (9th Cir. 2018) (no punitive damages on unseaworthiness claims); Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987), abrogated by Dutra Grp. v. Batterton, 588 U.S. 358 (2019) (citing Kopczynskiv. The Jacqueline, 753 F.2d 555, 560-61 (9th Cir. 1984)) (no punitive damages on Jones Act claims).

            Whether punitive damages need to be proved by a preponderance of the evidence or clear and convincing evidence also depends on the standards applicable to the underlying claim for relief.  For example, several states in the Ninth Circuit require proof by clear and convincing evidence before punitive damages are awarded on a state law claim. See, e.g., White v. Ford Motor Co., 312 F.3d 998, 1011 (9th Cir. 2002) (applying Nevada’s clear and convincing standard).  On the other hand, a preponderance of the evidence standard has been upheld for punitive damages in certain federal claims.  See, e.g., In re Exxon Valdez, 270 F.3d 1215, 1232 (9th Cir. 2001) (holding that preponderance standard applied to punitive damages claim in maritime case, citing Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23 n.11 (1991)). 

            If punitive damages are available and evidence of the defendant’s financial condition is offered in support of such damages, a limiting instruction may be appropriate.  See Instruction 1.11 (Evidence for Limited Purpose) and numbered paragraph (3) in Instruction 1.10 (What Is Not Evidence). 

            Regarding degree of reprehensibility and punitive damages generally, see Philip Morris USA v. Williams, 549 U.S. 346, 353-54 (2007), BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991); see also Morgan v. Woessner, 997 F.2d 1244, 1256 (9th Cir. 1993) (“Haslip said that instructions should be fashioned to describe the proper purposes of punitive damages so that the jury understands that punitive damages are not to compensate the plaintiff, but to punish the defendant and to deter the defendant and others from such conduct in the future.”).  See also White v. Ford Motor Co., 500 F.3d 963, 972 (9th Cir. 2007)(holding that trial court’s failure to give a “harm to nonparties” instruction violated due process and was reversible error after Williams).  Bracketed language in the fourth paragraph of the instruction addresses this requirement when evidence concerning harm to nonparties is admitted on the issue of degree of reprehensibility. 

            Regarding whether to instruct the jury concerning the relationship of any award of punitive damages to compensatory damages, the Ninth Circuit noted in White v. Ford Motor Co. that this inquiry “is markedly different from the jury’s determination of a specific amount of punitive damages; its purpose is to aid in ascertaining the constitutional ceiling.  Unlike the initial damage calculation, determining the constitutional ceiling on a punitive damage award is a question of law, properly reserved for the court.”  500 F.3d at 974 (emphasis in original).  The court also observed that, although “states are certainly free to incorporate the reasonable relationship concept into jury instructions, . . . it is also constitutionally permissible for a district court to delay the reasonable relationship inquiry until the judge’s post-verdict review.”  Id.  Because Nevada chose the latter course, it was not error in White for the district court to decline a “relationship inquiry” instruction.  Id. 

            Regarding the constitutional due process issues involved in the “relationship inquiry,” see State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003), referring to Gore and Haslip and stating that “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with ratios in range of 500 to 1, or, in this case, of 145 to 1.”  In State Farm, the Court went on to say that “because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where ‘a particularly egregious act has resulted in only a small amount of economic damages.’” Id. (quoting Gore, 517 U.S. at 582.)  For an application of the State Farm ratio principles in the context of a 42 U.S.C. § 1981 case, see Bains LLC v. Arco Prods. Co., 405 F.3d 764, 774-77 (9th Cir. 2005).  But see Exxon Shipping Co. v. Baker,554 U.S. 471, 513 (2008) (applying federal maritime common law to conclude punitive damages could not exceed 1:1 ratio in maritime cases). 

Revised March 2025

            The law that applies to this case authorizes an award of nominal damages.  If you find for the plaintiff but you find that the plaintiff has failed to prove damages as defined in these instructions, you must award nominal damages.  Nominal damages may not exceed one dollar. 

Comment 

            Nominal damages are not available in every case.  The court must determine whether nominal damages are permitted.  See, e.g., Chew v. Gates, 27 F.3d 1432, 1437 (9th Cir. 1994) (Section 1983 action); Parton v. GTE North, Inc., 971 F.2d 150, 154 (8th Cir. 1992) (Title VII action). 

            When a plaintiff has indisputably suffered an actual injury, an award of compensatory damages is mandatory.  Hazle v. Crofoot,727 F.3d 983, 991-92 (9th Cir. 2013).  However, nominal damages “must be awarded in cases in which the plaintiff is not entitled to compensatory damages, such as cases in which no actual injury is incurred or can be proven.”  Id. at n.6. 

            Regarding cases brought under 42 U.S.C. § 1983, see Carey v. Piphus, 435 U.S. 247, 266-67 (1978) (involving violation of procedural due process); Hazle, 727 F.3d at 991 n.6 (involving violation of substantive constitutional rights); Floyd v. Laws, 929 F.2d 1390, 1401 n.9 (9th Cir. 1991) (providing suggested language).

            The plaintiff, [name of plaintiff], claims that while [he] [she] was employed by the defendant, [name of defendant], a railroad, [he] [she] suffered an injury caused by the negligence of the defendant.  The defendant denies the plaintiff’s claim.  To help you understand the evidence while it is being presented, I will now explain some of the legal terms you will hear during this trial. 

            Negligence is the failure to use reasonable care.  Reasonable care is the degree of care that a reasonably prudent person would use under like circumstances.  Someone can be negligent by doing something that a reasonably prudent person would not have done, or by failing to do something that a reasonably prudent person would have done. 

            It is not enough, however, that someone be negligent, because to be held responsible for an injury the person’s negligence must also have been a cause of the injury.  To be a cause of an injury, the negligence must have played some part, no matter how small, in bringing that injury about. 

            The plaintiff claims that the defendant should be required to pay damages because its negligence was a cause of an injury suffered by the plaintiff.  It is the plaintiff’s burden to prove that by a preponderance of the evidence.  The defendant, on the other hand, claims that the plaintiff was negligent and that the plaintiff’s own negligence was a cause of the claimed injury.  The defendant has the burden of proving that by a preponderance of the evidence. 

            Should you determine that negligence of both the plaintiff and the defendant were causes of an injury, then you will determine the percentage of fault attributable to the plaintiff. 

Comment 

            This preliminary instruction may be given at the beginning of trial.  The judge should be certain that the jury understands that after the jury calculates any percentage of fault attributable to the plaintiff, the court will deduct that percentage from any award of damages.  See Instruction 6.7 (Plaintiff’s Negligence—Reduction of Damages (45 U.S.C. § 53)). 

            The right to sue under FELA is limited to employees of a railroad common carrier engaged in interstate commerce.  Forrester v. Am. Dieselectric, Inc., 255 F.3d 1205, 1210 n.2 (9th Cir. 2001).  No claim for relief is available under FELA against individuals.  Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d 1074, 1081 (9th Cir. 2003).

            [On the plaintiff’s [specify type of claim] claim,] the plaintiff has the burden of proving both of the following elements by a preponderance of the evidence: 

            First, the defendant was negligent; and  

            Second, the defendant’s negligence was a cause of an injury to the plaintiff.

            If you find that the plaintiff has proved both of these elements, your verdict should be for the plaintiff.  If, on the other hand, the plaintiff has failed to prove either of these elements, your verdict should be for the defendant. 

            The defendant has the burden of proving both of the following elements by a preponderance of the evidence: 

            First, the plaintiff was negligent; and 

            Second, the plaintiff’s negligence was a cause of the plaintiff’s own injury.

            If you find that the defendant has proved both of these elements, you must reduce the percentage of fault attributable to the defendant. 

Comment 

            This instruction assumes the usual situation where the parties have stipulated that the defendant is a common carrier covered by the FELA and that the plaintiff was injured in the scope and course of employment with the defendant.  If these issues are in dispute, the instruction must be modified accordingly. 

            Use the second half of this instruction in conjunction with Instruction 6.7 (FELA—Plaintiff’s Negligence—Reduction of Damages).

Revised March 2025

            Negligence is the failure to use reasonable care.  Reasonable care is the degree of care that reasonably prudent persons would use under like circumstances to avoid injury to themselves or others.  Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under like circumstances.

            Negligence is a cause of an injury if it played any part, no matter how slight, in bringing about the injury or damage, even if the negligence operated in combination with the acts of another, or in combination with some other cause. 

Comment  

            The Supreme Court approved a similar instruction in CSX Transportation, Inc. v. McBride, 564 U.S. 685 (2011) (holding that in FELA case, railroad employee need only establish that railroad’s negligence played part, no matter how small, in bringing about injury in order to satisfy causation element).

            The plaintiff is not negligent simply because the plaintiff, upon the request or direction of the defendant, worked at a dangerous job, or in a dangerous place, or under dangerous conditions.

Comment

            See Instructions 5.1 (Damages—Proof), 5.2 (Measures of Types of Damages), 5.3 (Damages—Mitigation), and 5.4 (Damages Arising in the Future—Discount to Present Cash Value).

            In those cases under FELA where damages are recoverable arising out of the fear of contracting cancer, the Supreme Court has held that it is reversible error to refuse an instruction that such fear must be "genuine and serious." CSX Transportation, Inc. v. Thurston Hensley, 556 U.S. 838, 839 (2009).

           If you decide that the plaintiff was negligent, and that the plaintiff’s negligence was a cause of [his] [her] injury you must then decide to what extent [his] [her] injury was caused by the plaintiff’s negligence.  This should be fixed as a percentage—for example, 10%, 50%, 90%.  The percentage of the plaintiff’s negligence, if any, is for you to decide.  You must then write that percentage on the appropriate place on the verdict form.  Do not make any reduction in the amount of damages that you award to the plaintiff.  I will reduce the damages that you award by the percentage of negligence that you assign to the plaintiff. 

Comment 

              Under FELA, the same standard of causation applies to a plaintiff’s comparative negligence as to defendant’s negligence.  Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 171 (2007). 

            For a discussion applying the FELA comparative negligence doctrine in a Jones Act case, see Kopczynski v. The Jacqueline, 742 F.2d 555, 558 (9th Cir. 1984). 

            The traditional defense of assumption of risk is barred under FELA and cannot be revived in the form of comparative negligence.  See Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316-17 (9th Cir. 1986). 

            For an example of a verdict form for use in FELA cases, see below: 

SUGGESTED VERDICT FORM

1.         Do you find that the plaintiff has proved by a preponderance of the evidence: 

A.        That the defendant was negligent? 

                        Answer YES or NO              

            If you answered NO to Question No. 1.A., do not answer the remaining questions. Sign and date the verdict form and notify the bailiff.  If you answered YES to Question No. 1.A., proceed to Question No. 1.B. 

B.        That the defendant’s negligence was a cause of injury or damage to the plaintiff? 

                        Answer YES or NO          

            If you answered NO to Question No. 1.B., do not answer the remaining questions.  Sign and date the verdict form and notify the bailiff. If you answered YES to Question No. 1.B., proceed to Question No. 2.

2.         Do you find that the defendant has proved by a preponderance of the evidence: 

A.        That the plaintiff was also negligent? 

                        Answer YES or NO          

            If you answered NO to Question No. 2.A., proceed to Question No. 4.  If you answered YES to Question No. 2.A., proceed to Question No. 2.B. 

B.        That the plaintiff’s own negligence was a cause of the plaintiff’s injury or damage? 

                        Answer YES or NO         

            If you answered NO to Question No. 2.B., proceed to Question No. 4.  If you answered YES to Question No. 2.B., proceed to Question No. 3. 

3.         What proportion or percentage of the plaintiff’s injury or damage do you find by a preponderance of the evidence to have been caused by the negligence of the respective parties? 

                        Answer in Terms of Percentages 

                        The defendant          %

                        The plaintiff           %

                        Note: The total of the percentages given in your answer should equal 100%.

                        Proceed to Question No. 4. 

4.         If you answered YES to Question Nos. 1.A and 1.B, what sum of money do you find from a preponderance of the evidence to be the total amount of the plaintiff’s damages (do not reduce any amount by percentages found in Question No. 3)? 

(a)        Lost wages and benefits to date of trial          $       

(b)       Lost wages and benefits in the future [reduced to present value]         $       

(c)        Medical and hospital expenses incurred in the past      $       

(d)       Medical and hospital expenses likely to be incurred in the future [reduced to present value]            $       

(e)        Mental and emotional humiliation or pain and anguish            $       

(f)        Physical pain and suffering    $       

DATED:                                                                                                 

                                                                        PRESIDING JUROR

            The plaintiff seeks recovery against the defendant under the Jones Act for negligence.  [[He] [She] also seeks recovery under [general maritime law for unseaworthiness] [and] [maintenance and cure].]  Only a “seaman” can bring these claims.  The parties dispute whether or not the plaintiff was employed as a seaman. 

            The plaintiff must prove that [he] [she] was a “seaman” in order to recover.  To prove seaman status, the plaintiff must prove the following elements by a preponderance of the evidence:

            First, the plaintiff contributed to the mission or opertaion of [a vessel] [an identifiable group of vessels] in
            navigation, whether underway or at anchor; and

            Second, the plaintff had an employment-related connection to [the vessel] [an identifiable group of vessels]
            that was substantial in terms of both duration and nature.

            The phrase “vessel in navigation” is not limited to traditional ships or boats but includes every type of watercraft or artificial contrivance used, or practically capable of being used, as a means of transportation on water. 

            The phrase “substantial in duration” means that the plaintiff’s connection to [the vessel] [an identifiable group of vessels] must be more than merely sporadic, temporary, or incidental. 

            The phrase “substantial in nature” means that it must regularly expose [him] [her] to the special hazards and disadvantages that are characteristic of a seaman’s work. 

Comment 

            In order to recover for negligence under the Jones Act, under the doctrine of unseaworthiness, or under a claim for maintenance and cure, the plaintiff must be a “seaman” and must satisfy a two-element test.  See Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997); Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995); Gizoni v. Sw. Marine Inc., 56 F.3d 1138, 1141 (9th Cir. 1995).  The seaman inquiry is a mixed question of law and fact, and when necessary, should be submitted to the jury.  Delange v. Dutra Constr. Co., 183 F.3d 916, 919 (9th Cir. 1999).  The Jones Act does not define the term “seaman,” and the issue of who is or is not covered by the statute has been repeatedly considered by the Supreme Court since 1991.  See Sw. Marine Inc. v. Gizoni, 502 U.S. 81 (1991); McDermott Int’l v. Wilander, 498 U.S. 337 (1991).  See also Stewart v. Dutra Constr. Co., 543 U.S. 481 (2005); Papai, 520 U.S. 548; Chandris, 515 U.S. 347.  In defining the prerequisites for Jones Act coverage, the Supreme Court has found it preferable to focus upon the essence of what it means to be a seaman and to reject detailed tests that tend to become ends in and of themselves.  “The Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to the special hazards and disadvantages to which they who go down to sea in ships are subjected.”  Chandris, 515 U.S. at 369-70.  In Chandris, the Court said the essential test for seaman status “comprises two basic elements: The worker’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and its nature.”  Id. at 376. 

            The Supreme Court has cautioned against using a “snapshot” test and admonishes that a plaintiff’s seaman status must be determined in the context of his or her “overall employment” with the defendant employer.  Id. at 366-67.  In the Court’s view, the total circumstances of an individual’s employment must be weighed to determine whether he or she had a sufficient relation to the navigation of vessels and the perils attendant thereon.  The duration of a worker’s connection to a vessel and the nature of the worker’s activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.  Id. at 369-70.  The Court has also identified an appropriate rule of thumb for applying the temporal or durational requirement in the ordinary case: “A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”  Id. at 371. 

            A plaintiff may be entitled to an instruction on the fleet seaman doctrine if it has some foundation in the evidence. Gizoni, 56 F.3d at 1141 (“Under the fleet doctrine, one can acquire ‘seaman status’ through permanent assignment to a group of vessels under common ownership or control.”). 

            The Longshore and Harbor Workers’ Compensation Act (LHWCA) excludes from its coverage “a master or member of a crew of any vessel.”  33 U.S.C. § 902(3)(G).  Masters and crew members are entitled to sue under the Jones Act and the doctrine of unseaworthiness.  A person who is not a seaman is limited to the remedies of the LHWCA.

Revised March 2025

           On the plaintiff’s Jones Act negligence claim, the plaintiff has the burden of proving the following elements by a preponderance of the evidence: 

First, the plaintiff was a seaman; 

Second, the defendant was negligent; and 

Third, the defendant’s negligence was a cause of the injury or damage to the plaintiff. 

            If you find the plaintiff has proved the elements on which [he] [she] has the burden of proof, your verdict should be for the plaintiff.  If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. 

Comment 

            For a discussion of the elements of a Jones Act negligence claim, see In re Hechinger, 890 F.2d 202, 208 (9th Cir. 1989) (“To recover under a Jones Act claim, a plaintiff has the burden of establishing by a preponderance of the evidence, negligence on the part of his employer . . . [and] that the act of negligence was a cause, however slight, of his injuries.” (quotations and citation omitted)).  See also Mohn v. Marla Marie, Inc., 625 F.2d 900, 901-02 (9th Cir. 1980) (distinguishing between Jones Act negligence claim and unseaworthiness claim).  The Jones Act extends to a seaman the statutory rights accorded railway employees under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51, et seq., and courts may look to cases decided under FELA in construing the Jones Act.  Lies v. Farrell Lines, Inc., 641 F.2d 765, 770 (9th Cir. 1981).  For FELA instructions, see Chapter 6 (“Federal Employers’ Liability Act”).

Revised March 2025

            Negligence under the Jones Act is the failure to use reasonable care. Reasonable care is the degree of care that reasonably prudent persons would use under like circumstances to avoid injury to themselves or others. Negligence is the doing of something that a reasonably prudent person would not do, or the failure to do something that a reasonably prudent person would do, under the circumstances.

            Negligence under the Jones Act is a cause of an injury if it played any part, no matter how slight, in bringing about the injury or damage, even if the negligence operated in combination with the acts of another, or in combination with some other cause. 

Comment

           Eventhe“slightest negligence” is sufficient for a finding of liability. See Ribitzki v. Canmar Reading & Bates, Ltd. P’ship, 111 F.3d 658, 662 (9th Cir. 1997) (citing Havens v. F/T Polar Mist, 996 F.2d 215, 218 (9th Cir.1993)). This test is often described as a "featherweight causation standard" and allows a seaman to survive summary judgment by presenting even the slightest proof of causation. Ribitzki, 111 F.3d at 664.

            The causal requirements for Jones Act negligence and under the doctrine of unseaworthiness are different. See Lies v. Farrell Lines, 641 F.2d 765, 769 n.7 (9th Cir.1981). Separate causation instructions, therefore, will be necessary when both claims for relief are asserted.

Revised March 2025

            On the plaintiff’s unseaworthiness claim, the plaintiff has the burden of proving the following elements by a preponderance of the evidence: 

First, the plaintiff was a seaman; 

Second, the [name of vessel] was unseaworthy; and 

Third, the unseaworthy condition was a cause of an injury or damage to the plaintiff. 

            If you find the plaintiff has proved all the elements on which [he] [she] has the burden of proof, your verdict should be for the plaintiff.  If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. 

Comment 

            “A shipowner has an absolute duty to furnish a seaworthy ship.”  Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960).  A seaworthy ship is one reasonably fit for its intended use.  Id. at 550; Ribitzki v. Canmar Reading & Bates, Ltd. P’ship, 111 F.3d 658, 664 (9th Cir. 1997).  

            See also Comment to Instruction 7.6 (Unseaworthiness Defined).

Revised March 2025

            A vessel owner has a duty to provide and maintain a seaworthy vessel. [That duty cannot be delegated to anyone else.]

            A vessel is seaworthy if the vessel and all of its parts and equipment are reasonably fit for their intended purpose [and it is operated by a crew reasonably adequate and competent for the work assigned].

            A vessel is unseaworthy if the vessel, or any of its parts or equipment, is not reasonably fit for its intended purpose [or if its crew is not reasonably adequate or competent to perform the work assigned].

            A vessel owner has a duty to provide adequate safety equipment for the vessel. However, the owner of the vessel is not required to furnish an accident-free ship. A vessel owner is not called on to have the best parts and equipment, or the finest of crews, but is required to have what is reasonably proper and suitable for its intended use, and a crew that is reasonably competent and adequate.

Comment

            For a definition of a seaworthy vessel, see Ribitzki v. Canmar Reading & Bates, Ltd. Partnership, 111 F.3d 658, 664 (9th Cir.1997), and Havens v. F/T Polar Mist, 996 F.2d 215, 217-18 (9th Cir.1993).

            A shipowner has the duty to a seaman employed on the ship to furnish a vessel and appurtenances that are reasonably fit for their use. This includes maintaining a ship’s equipment in proper operating condition. The failure of a piece of equipment under proper and expected use is sufficient to establish unseaworthiness. Lee v. Pac. Far E. Line, 566 F.2d 65, 67 (9th Cir.1977); see also Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960) (noting that vessel owner has no obligation to furnish accident-free ship but rather “a duty to furnish a vessel and appurtenances reasonably fit for their intended use”).

            A vessel may be unseaworthy because of "defective" crew members. Pashby v. Universal Dredging Corp., 608 F.2d 1312, 1313-14 (9th Cir.1979) (noting that violent or assaultive crew members may make vessel unseaworthy).

Revised March 2025

            The definition of causation for the plaintiff's unseaworthiness claim is different from that for the Jones Act negligence claim.

            Unseaworthiness is a cause of injury or damage if it was a substantial factor in bringing about injury or damage.

Comment

            A different test for causation applies to an unseaworthiness claim as compared to a Jones Act negligence claim. See Ribitzki v. Canmar Reading & Bates, Ltd. P’ship, 111 F.3d 658, 665 (9th Cir.1997) (causation is established for unseaworthiness claim by showing condition was "substantial factor" in causing injury). When both Jones Act negligence and unseaworthiness claims exist, the court should instruct on the causal requirements for each. See Lies v. Farrell Lines, 641 F.2d 765, 769 n.7 (9th Cir.1981).

Comment

            See Instruction 5.1 (Damages—Proof).

            The collateral source rule applies in cases brought under the Jones Act. See Folkestad v. Burlington N., Inc., 813 F.2d 1377, 1380 n.3 (9th Cir. 1987) (citing Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525 (9th Cir. 1962)).

            "Maintenance and cure" is a separate general maritime law doctrine, not arising from the Jones Act or doctrine of unseaworthiness. It is not tied to the period that the plaintiff would have worked aboard ship, but extends to the point of maximum cure. See Instruction 7.11 (Maintenance and Cure—Elements and Burden of Proof).

            Punitive damages are not an available remedy on an unseaworthiness claim. Dutra Grp. v. Batterton, 588 U.S. 358, 376 (2019), rev’g Batteron v. Dutra Grp., 880 F.3d 1089 (9th Cir. 2018). Nor are punitive damages available for Jones Act claims. Evich v. Morris, 819 F.2d 256, 258 (9th Cir. 1987), abrogated by Dutra Grp., 588 U.S. 358 (citing Kopczynski v. The Jacqueline, 753 F.2d 555, 560-61 (9th Cir. 1984)).　　

Revised March 2025

            If you decide that the plaintiff has established by a preponderance of the evidence that the plaintiff is entitled to recover under [the Jones Act negligence claim] [and/or] [the unseaworthiness claim], then you must determine whether the plaintiff’s own negligence was a cause of the plaintiff’s injury or damage. The defendant has the burden of proving by a preponderance of the evidence that the plaintiff was negligent and that the plaintiff’s negligence was also a cause of the plaintiff’s injury or damage.

            The plaintiff has a duty to use the care that a reasonably prudent person would use under similar circumstances. The defendant must prove by a preponderance of the evidence that the plaintiff’s failure to use such care contributed in some way to bringing about the plaintiff’s injury.

            If you decide that the plaintiff was negligent and that the plaintiff’s negligence was a cause of the plaintiff’s injury, you must then decide to what extent the injury was caused by the plaintiff’s negligence. This should be fixed as a percentage—for example, 10%, 50%, 90%. The percentage of the plaintiff’s negligence, if any, is for you to decide. You must then write that percentage on the appropriate place on the verdict form. Do not make any reduction in the amount of damages that you award to the plaintiff. I will reduce the damages that you award by the percentage of negligence that you assign to the plaintiff.

Comment

            See 46 U.S.C. § 30104 (extending common-law rights or remedies in cases of personal injury to railway employees to seaman injured in course of employment); 45 U.S.C. § 53 (stating that contributory negligence will not bar railroad employee from suing employer for tort damages).

            Section 53 of the Federal Employers’ Liability Act, 45 U.S.C. § 53, which provides for a reduction in the plaintiff’s damages as a result of the plaintiff’s comparative negligence, is applicable to actions under both the Jones Act and general maritime law. See Fuszek v. Royal King Fisheries, 98 F.3d 514, 516-17 (9th Cir.1996); Kopczynski v. The Jacqueline, 742 F.2d 555, 557-58 (9th Cir.1984). See also Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409 (1953) ("Exercising its traditional discretion, admiralty has developed and now follows its own fairer and more flexible rule which allows such consideration of contributory negligence in mitigation of damages as justice requires.").

            There is no controlling legal authority on the level of plaintiff’s causation required to trigger a reduction of damages for plaintiff’s negligence. See Instructions 7.4 (Jones Act Negligence Claim—Causation Defined) and 7.7 (Unseaworthiness—Causation Defined). In the only reported judicial decision the Committee could find that addressed the question directly, R. Bunting v. Sun Co., 434 Pa. Super. 404, 643 A.2d 1085 (1994), a Pennsylvania state appellate court held that a reduction of damages for a plaintiff’s negligence under the Jones Act is permitted when the plaintiff is shown to have played any part, no matter how slight, in bringing about the injury or damage (featherweight causation). See also Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 171 (2007) (holding that, under FELA, same standard of causation applies to plaintiff’s comparative negligence as to defendant’s negligence).

            Comparative negligence is not applicable if a seaman is injured as a result of a defendant’s violation of Coast Guard regulations. See MacDonald v. Kahikolu Ltd., 442 F.3d 1199, 1202 (9thCir.2006); Fuszek, 98 F.3d at 517.

            A seaman who follows a supervisor’s urgent call to the crew for help cannot be found contributorily negligent. Simenoff v. Hiner, 249 F.3d 883, 890-91 (9th Cir.2001).

Revised March 2025

            A plaintiff may not be found negligent simply because the plaintiff, upon the request or direction of the defendant, worked at a dangerous job, or in a dangerous place, or under dangerous conditions.

Comment

             Use this instruction only when the plaintiff’s compliance with an employer’s request or direction is an issue. Under the "primary duty" doctrine, "a seaman-employee may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment." Cal. Home Brands, Inc. v. Ferreira, 871 F.2d 830, 836 (9th Cir.1989); see also N. Queen Inc. v. Kinnear, 298 F.3d 1090, 1095 (9th Cir.2002).

            The primary duty rule is not applicable "where a seaman is injured by a dangerous condition that he did not create and, in the proper exercise of his employment duties, could not have controlled or eliminated." See Bernard v. Maersk Lines, Ltd., 22 F.3d 903, 907 (9th Cir.1994).

            A seaman who follows a supervisor’s urgent call to the crew for help cannot be found contributorily negligent. Simenoff v. Hiner, 249 F.3d 883, 890-91 (9th Cir.2001).

            On the plaintiff’s maintenance and cure claim, the plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: 

First, the plaintiff was a seaman; 

Second, the plaintiff was injured or became ill while in the service of the vessel; and 

Third, the amount of maintenance and cure to which the plaintiff was entitled. 

            If you find the plaintiff has proved each of the elements on which [he] [she] has the burden of proof, your verdict should be for the plaintiff.  If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. 

            Maintenance is the reasonable cost of food, lodging and transportation to and from a medical facility.  The plaintiff is not entitled to maintenance while hospitalized because hospitalization includes food and lodging. 

            The rate of maintenance includes the cost of obtaining room and board on land.  In determining this amount, you may consider the actual costs incurred by the plaintiff but shall not award an amount in excess of that of a seaman living alone in the plaintiff’s locality. 

            Cure is the cost of medical attention, including the services of physicians and nurses, as well as the cost of hospitalization, medicines, and medical apparatus. 

            [When the defendant’s failure to provide [maintenance] [[and] [or]] [cure] worsens the plaintiff’s injury, the plaintiff may recover resulting damages and expenses, including pain and suffering, and additional medical expenses.] 

            The injury or illness need not be work-related so long as it occurs while the plaintiff is in the service of the vessel.  Neither maintenance nor cure may be reduced because of any negligence on the part of the plaintiff.  [A plaintiff may not recover for maintenance [and] [or] cure when the illness or injury results from the plaintiff’s own willful misbehavior.] 

            The plaintiff is entitled to receive maintenance and cure even though he was not injured as a result of any negligence on the part of his employer or any unseaworthy condition of the vessel.  The plaintiff is entitled to recover maintenance and cure from the date of departure from the ship to the time of maximum cure under the circumstances.  Maximum cure is the point at which no further improvement in the plaintiff’s medical condition may be reasonably expected. 

            There can be no double recovery for the plaintiff.  If you find that the plaintiff is entitled to an award of damages under [the Jones Act negligence claim] [the unseaworthiness claim], and if you include medical expenses in the damage award relating to either of these claims, then cure cannot be awarded for the same expenses. 

Comment 

            See Day v. Am. Seafoods Co., 557 F.3d 1056, 1057-58 (9th Cir. 2009); Lipscomb v. Foss Maritime Co., 83 F.3d 1106, 1108 (9th Cir. 1996); Gardiner v. Sea–Land Serv., 786 F.2d 943, 945-46 (9th Cir. 1986); Kopczynski v. The Jacqueline, 742 F.2d 555, 557-58 (9th Cir. 1984). 

            The shipowner’s duty to provide maintenance and cure arises irrespective of whether the illness or injury is suffered in the course of the seaman’s employment, and negligence on the seaman’s part will not relieve the shipowner of responsibility.  Vella v. Ford Motor Co., 421 U.S. 1, 4-5 (1975).  A plaintiff may not recover for maintenance and cure when the injury or illness results from the plaintiff’s own willful misbehavior.  See Omar v. Sea–Land Serv., 813 F.2d 986, 989-90 (9th Cir. 1987). 

            Only “medical expenses” would be duplicative of “cure.”  As the Ninth Circuit has explained, “the maintenance obligation is independent of that to compensate for lost wages and exists without regard to the fact that lost wages may be computed on the basis of employment ashore.”  Crooks v. United States, 459 F.2d 631, 635 (9th Cir. 1972); see also Colburn v. Bunge Towing, Inc., 883 F.2d 372, 378 (5th Cir. 1989) (“Maintenance is neither a substitute for wages nor is it to be considered in lieu of seaman’s wages, in whole or in part” . . ..  “[A]n award of maintenance by the trial court in addition to a general damage award that includes past and future wages is proper.”). 

            Failure to pay maintenance and/or cure when due renders the defendant liable for not only the quantum of maintenance and/or cure that was not paid but also for any resulting harm.  See Cortes v. Baltimore Insular Line, Inc. 287 U.S. 367, 371 (1932) (“If the failure to give maintenance or cure has caused or aggravated an illness, the seaman has his right of action for the injury thus done to him; the recovery in such circumstances including not only necessary expenses, but also compensation for the hurt.”).  The bracketed paragraph on this point should be included only when the plaintiff is making a claim for such compensation. 

            A plaintiff can seek punitive damages for an employer’s alleged willful and wanton disregard of its maintenance and cure obligation.  Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 424 (2009).

Revised March 2025

            The plaintiff also contends the defendant willfully and arbitrarily failed to pay [maintenance] [and] [cure] when it was due.  On this issue, the plaintiff must prove each of the following elements by a preponderance of the evidence: 

First, the plaintiff was entitled to [maintenance] [and] [cure]; 

Second, the defendant willfully and arbitrarily failed to provide [maintenance] [and] [cure]; and 

Third, the defendant’s failure to provide [maintenance] [and] [cure] resulted in injury to the plaintiff. 

            If you find the plaintiff has proved each of the elements on which [he] [she] has the burden of proof, you should answer “yes” on the verdict form where indicated; otherwise answer “no.” 

Comment 

            If the jury finds that the defendant willfully and arbitrarily failed to pay maintenance or cure, the plaintiff will be entitled to reasonable attorneys’ fees as determined by the court.  A special interrogatory will be required.  See Kopczynski v. The Jacqueline, 742 F.2d 555, 559 (9th Cir. 1984) (leaving undisturbed jury’s finding on special interrogatory that defendant’s conduct was not “willful and arbitrary,” and holding that plaintiff therefore was not entitled to recover attorneys’ fees).

Revised March 2025 

           On the plaintiff’s duty to warn claim, the plaintiff has the burden of proving the following elements by a preponderance of the evidence: 

            First, the defendant manufactured a product that required the incorporation of a part for the integrated
            product to function as intended; 

            Second, the defendant knew or had reason to know that the integrated product was likely to be dangerous
            for its intended use[s]; 

Thrid, the defendant had no reason to believe that the product’s users would realize that danger; and 

Fourth, the product’s dangerous condition caused foreseeable injury to the plaintiff. 

            If you find the plaintiff has proven the elements on which [he] [she] has the burden of proof, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. 

Comment 

            See Air & Liquid Sys. Corp. v. DeVries, 586 U.S. 446, 457 (2019). 

Revised March 2025

            The plaintiff brings [his] [her] claim[s] under the federal statute, 42 U.S.C. § 1983, which provides that any person or persons who, under color of state law, deprives another of any rights, privileges, or immunities secured by the Constitution or laws of the United States shall be liable to the injured party.

Comment

             Past decisions of the Supreme Court and the Ninth Circuit used the phrases “under color of law” and “under color of state law” interchangeably.  Compare, e.g., Livadas v. Bradshaw, 512 U.S. 107, 132 (1994), and Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021) (using phrase “under color of law”), with Health & Hosp. Corp. of Marion Cnty. v. Talevski, 143 S. Ct. 1444, 1450 (2023), and Chaudhry v. Aragon, 68 F.4th 1161, 1171 (9th Cir. 2023) (using phrase “under color of state law”).

             Because recent Supreme Court and Ninth Circuit cases more frequently use the phrase “under color of state law,” rather than “under color of law,” the Committee uses the phrase “under color of state law.” See, e.g., Talevski, 143 S. Ct. at 1450 (using phrase “color of state law”); Torres v. Madrid, 141 S. Ct. 989, 994 (2021) (same); Chaudhry, 68 F.4th at 1171 (same); Roberts v. Springfield Util. Bd., 68 F.4th 470, 474 n.2 (9th Cir. 2023) (same). 

Generally, “a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.”  Paeste v. Gov’t of Guam, 798 F.3d 1228, 1238 (9th Cir. 2015) (quoting West v. Atkins, 487 U.S. 42, 50 (1988)); but see Thai v. County of Los Angeles, 127 F.4th 1254, 1261 (9th Cir. 2025) (holding that law enforcement officers from the Los Angeles District Attorney’s Office were acting under color of federal law, not under color of state law, where the source of authority for the joint federal-state task force was federal in nature and the challenged conduct was subject to immediate control of federal supervisors). 

The color of law inquiry and the state action inquiry are the same.  Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747 (9th Cir. 2020). When a private actor’s conduct is challenged as “state action” under § 1983, a court looks to two requirements that the private actor must meet: (1) the state policy requirement; and (2) the state actor requirement. Wright v. Serv. Emps. Int’l Union Loc. 503, 48 F.4th 1112, 1121 (9th Cir. 2022). Under the first requirement, the question is whether the claimed constitutional deprivation resulted from the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible.  Id. at 1121-22.  Under the second requirement, courts generally use one of four tests outlined by the Supreme Court to examine whether the party charged with the deprivation could be described in all fairness as a “state actor.”  Id. at 1122.  Those tests are the public function test, the joint action test, the state compulsion test, and the governmental nexus test.  Id.; see Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747 (9th Cir. 2020). 

For a discussion of the public function test, see Florer v. Congregation Pidyon Shevuyim, N.A.,639 F.3d 916, 924-26 (9th Cir. 2011); Wright, 48 F.4th at 1124. For a discussion of the joint action test, see Pasadena Republican Club v. W. Justice Ctr., 985 F.3d 1161, 1167-71 (9th Cir. 2021). For a discussion of the state compulsion test, see Johnson v. Knowles, 113 F.3d 1114, 1119-20 (9th Cir. 1997). For a discussion of the governmental nexus test, see Lindke v. Freed, 601 U.S. 187, 199 (2024) (holding that where a city manager deleted comments from posts on his individual social media page and blocked the commenter, a showing of state action would require a plaintiff to show that the city manager “(1) had actual authority to speak on behalf of the State on a particular matter, and(2) purported to exercise that authority in the relevant posts”). 

Revised March 2025

“In a § 1983 action, the plaintiff must also demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.”  Bearchild v. Cobban, 947 F.3d 1130, 1150 (9th Cir. 2020) (quotingHarper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008)).  “To meet this causation requirement, the plaintiff must establish both causation-in-fact and proximate causation.”  Id.  A defendant’s conduct is an “actual cause,” or “cause-in-fact,” of a plaintiff’s injury only if the injury would not have occurred but for that conduct.  Chaudhry v. Aragon, 68 F.4th 1161, 1170 n.11 (9th Cir. 2023).  For a general discussion of “but for causation” generally, see Civil Instruction 10.3 (Civil Rights—Title VII—Disparate Treatment— “Because of” Defined). 

“A defendant’s conduct is a ‘proximate cause’ of a plaintiff’s injury if ‘it was not just any cause, but one with a sufficient connection to the result.’”  Chaudhry, 68 F.4th at 1170 n.12 (quoting Paroline v. United States, 572 U.S. 434, 444 (2014)). “‘Proximate cause is often explicated in terms of foreseeability,’ such that the proximate cause requirement ‘preclude[s] liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity.’”  Id. (quoting Paroline, 572 U.S. at 445)

A person deprives another of a constitutional right, within the meaning of § 1983, “if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Lacey v. Maricopa Cnty., 693 F.3d 896, 915 (9th Cir. 2012) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).  The requisite causation can be established either “‘by some kind of direct personal participation in the deprivation’ or ‘by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.’”  Chaudhry, 68 F.4th at 1169.  A police officer’s liability under section 1983 is predicated on his integral participation in the alleged violation.”  Nicholson v. City of Los Angeles, 935 F.3d 685, 691 (9th Cir. 2019) (quoting Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (internal quotes omitted)).  Thus, an “officer could be held liable where he is just one participant in a sequence of events that gives rise to [the alleged] constitutional violation.”  Nicholson, 935 F.3d at 692; but see Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018) (“Officers may not be held liable merely for being present at the scene of a constitutional violation or for being a member of the same operational unit as a wrongdoer.”). 

“The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.”  Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); see also Hines v. Youseff, 914 F.3d 1218, 1228 (9th Cir. 2019) (“[Plaintiff] must show that each defendant personally played a role in violating the Constitution.  An official is liable under § 1983 only if ‘culpable action, or inaction, is directly attributed to them.’” (footnote omitted)). 

Supervisor Liability 

            “A defendant may be held liable as a supervisor under § 1983 ‘if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’”  Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); see also Lacey, 693 F.3d at 915-16 (discussing culpability and intent of supervisors).  Supervisors can be held liable for: “1) their own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) for conduct that showed a reckless or callous indifference to the rights of others.”  Hyde v. City of Willcox, 23 F.4th 863, 874 (9th Cir. 2022); see Starr, 652 F.3d at 1207-08; see also OSU Student All. v. Ray, 699 F.3d 1053, 1076 (9th Cir. 2012) (“Advancing a policy that requires subordinates to commit constitutional violations is always enough for § 1983 liability . . . so long as the policy proximately causes the harm—that is, so long as the plaintiff’s constitutional injury in fact occurs pursuant to the policy.”).  However, supervisors may not be held liable under § 1983 for the unconstitutional actions of their subordinates based solely on a theory of respondeat superior.  Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). There can be no such supervisorial liability in the absence of an underlying constitutional violation by subordinates. Puente v. City of Phoenix, 123 F.4th 1035, 1064 (9th Cir. 2024). 

Integral Participant Doctrine 

Under Ninth Circuit cases, an official whose individual actions do not rise to the level of a constitutional violation “may be held liable under section 1983 only if the official is an ‘integral participant’ in the unlawful act.”  Peck v. Montoya, 51 F.4th 877, 889 (9th Cir. 2022) (quoting Reynaga Hernandez v. Skinner, 969 F.3d 930, 941 (9thCir. 2020)).  An official may be deemed an “integral participant” in a constitutional violation, “only if (1) the defendant knew about and acquiesced in the constitutionally defective conduct as part of a common plan with those whose conduct constituted the violation, or (2) the defendant set in motion a series of acts by others which the defendant knew or reasonably should have known would cause others to inflict the constitutional injury.” Id. at 891; see Spencer v. Pew, 117 F.4th 1130, 1144-45 (9th Cir. 2024) (rejecting plaintiff’s claim that two officers were integral participants in a third officer’s use of excessive force because plaintiff did not present evidence that two of the officers knowingly acquiesced in a third officer’s unlawful conduct as a part of a common plan with him or evidence  that the two officers’ conduct  set in motion acts that they reasonably should have known would cause the third officer to engage in unlawful conduct). When liability is alleged against a defendant as an integral participant on this basis, the model instruction stated above will need to be modified. 

Deliberate Fabrication 

Typically, in constitutional tort cases, the filing of a criminal complaint usually immunizes the investigating officers “because it is presumed that the prosecutor filing the complaint exercised independent judgment in determining that probable cause for an accused’s arrest exists at that time.”  Caldwell v. City & Cnty. of San Francisco, 889 F.3d 1105, 1115 (9th Cir. 2018) (quoting Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981), overruled on other grounds by Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008)).  However, in deliberate fabrication cases, the presumption can be overcome if a plaintiff establishes that officers “either presented false evidence to or withheld crucial information from the prosecutor.”  Caldwell, 889 F.3d at 1116. At that point, “the analysis reverts back to a normal causation question” and the issue again becomes whether the fabricated evidence was the cause in fact and proximate cause of the plaintiff’s injury.  Id. at 1115-16. 

First Amendment Retaliation Claims 

When a § 1983 claim alleges discrimination because of the plaintiff’s exercise of a First Amendment right, use the “substantial or motivating factor” formulation already included in Instructions 9.9 (Particular Rights—First Amendment—Public Employees—Speech) and 9.11 (Particular Rights—First Amendment—“Citizen” Plaintiff). 

Monell Claims 

“Under Monell, a plaintiff must also show that the policy at issue was the ‘actionable cause’ of the constitutional violation, which requires showing both but for and proximate causation.”  Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (citing Harper, 533 F.3d at 1026).  Regardless of what theory the plaintiff employs to establish municipal liability— policy, custom, or failure to train— the plaintiff must establish that the policy or custom is the “moving force” behind the constitutional violation. City of Canton v. Harris, 489 U.S. 378, 389 (1989);see Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013).  To meet the moving force requirement, “the plaintiff must show both causation-in-fact and proximate causation.”  Gravelet-Blondin, 728 F.3d at 1096.  If the plaintiff relies on the theory of ratification, see Instruction 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification— Elements and Burden of Proof), which discusses ratification and causation. 

In Oviatt v. Pearce, 954 F.2d 1470, 1481 (9th Cir. 1992), the Ninth Circuit approved the trial court’s “moving force” instruction on causation in a § 1983 Monell claim as follows:

The district court instructed the jury that “in order for [the policy] to be the cause of injury, you must find that it is so closely related as to be the moving force causing the ultimate injury.”  Because this instruction closely tracks the language in City of Canton, we find that it correctly stated the law and adequately covered the issue of causation.  See City of Canton, 489 U.S. at 391 (“the identified deficiency in a city’s training program must be closely related to the ultimate injury.”) (emphasis in original). 

Concurrent Cause 

In Jones v. Williams, the Ninth Circuit affirmed a defense verdict in a § 1983 case in which the district judge gave the following “concurrent cause” instruction to address allegations of supervisory and group liability: “[M]any factors or things or the conduct of two or more persons can operate at the same time either independently or together to cause injury or damage and in such a case each may be a proximate cause.”  Jones v. Williams, 297 F.3d 930, 937 n.6 (9th Cir. 2002).

Revised March 2025

In order to prevail on a § 1983 claim against the defendant [name of individual defendant], the plaintiff must prove each of the following elements by a preponderance of the evidence:
                                                                  

1.         the defendant acted under color of state law; and 

            2.         the [act[s]] [failure to act] of the defendant deprived the plaintiff of particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions; and 

            3.         The defendant’s conduct was an actual cause of the claimed injury. 

            A person acts “under color of state law” when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance or regulation. [[The parties have stipulated] [I instruct you] that the defendant acted under color of state law.] 

The defendant’s conduct is an actual cause of a plaintiff's injury only if the injury would not have occurred ‘but for' that conduct, and the conduct has a sufficient connection to the result. 

            If you find the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements the plaintiff is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff.  If, on the other hand, you find that the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant. 

Comment           

            Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9-9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue.           

            The elements of a § 1983 claim are (1) the action the action was committed by a person acting “under color of state law” and (2) the action resulted in the deprivation of a constitutional right or federal statutory right. Ochoa v. Pub. Consulting Grp., Inc., 48 F.4th 1102, 1107 (9th Cir. 2022) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).  In order to be individually liable under § 1983, an individual must personally participate in an alleged rights deprivation.  Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010).           

            “In a § 1983 action, the plaintiff must also demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.” Bearchild v. Cobban, 947 F.3d 1130, 1150 (9th Cir. 2020) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).  “To meet this causation requirement, the plaintiff must establish both causation-in-fact and proximate causation.”  Id.; see also Chaudhry v. Aragon, 68 F.4th 1161, 1169 nn.11-12 (9th Cir. 2023) (defining causation-in-fact and proximate causation). 

            In Reynaga Hernandez v. Skinner, 969 F.3d 930, 941-42 (9th Cir. 2020), the Ninth Circuit discussed, for the first time, the minimum level of involvement needed for § 1983 liability under the integral-participant doctrine.  An actor may be deemed to have caused a constitutional violation under the “integral-participant doctrine,” “only if (1) the defendant knew about and acquiesced in the constitutionally defective conduct as part of a common plan with those whose conduct constituted the violation, or (2) the defendant set in motion a series of acts by others which the defendant knew or reasonably should have known would cause others to inflict the constitutional injury.”  Peck v. Montoya, 51 F.4th 877, 891 (9th Cir. 2022); see id. at 889-92 (holding that when non shooting officers did not form plan with shooting officers to shoot suspect, did not set in motion acts by shooting officers, and did not know or should have known constitutional violation would occur, non-shooting officers were not integral participants in constitutional violation)); see Spencer v. Pew, 117 F.4th 1130, 1144-45 (9th Cir. 2024) (rejecting plaintiff’s claim that two officers were integral participants in a third officer’s use of excessive force because plaintiff did not present evidence that two of the officers knowingly acquiesced in a third officer’s unlawful conduct as a part of a common plan with him or evidence  that the two officers’ conduct  set in motion acts that they reasonably should have known would cause the third officer to engage in unlawful conduct).  When liability is alleged against a defendant on this basis, the model instruction stated above will need to be modified. 

Revised November 2024

            In order to prevail on the plaintiff’s § 1983 claim against the supervisory defendant, [name], the plaintiff must prove each of the following elements by a preponderance of the evidence:
 

            1.         the supervisory defendant acted under color of state law;
 

            2.         the [act[s]] [failure to act] of the supervisory defendant’s subordinate[s] [name[s]] deprived the plaintiff of particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;
 

            3.         [the supervisory defendant directed subordinate[s] in the [act[s]] [failure to act] that deprived the plaintiff of these rights;] 

or
 

[the supervisory defendant set in motion a series of acts by  subordinate[s], or knowingly refused to terminate a series of acts by  subordinate[s], that the supervisor knew or reasonably should have known would cause the subordinate[s] to deprive the plaintiff of these rights;] 

or
 

[(a)      the supervisory defendant knew that the subordinate[s] were engaging in these act[s] and knew or reasonably should have known that the subordinate[’s][s’] conduct would deprive the plaintiff of these rights; and
 

(b)       the supervisory defendant failed to act to prevent the subordinate[s] from engaging in such conduct;] 

or
 

                        [(a)      the supervisory defendant disregarded the known or obvious consequence that a particular training deficiency or omission would cause [his][her] subordinate[s] to violate the plaintiff’s constitutional rights; and
 

                        (b)       that deficiency or omission actually caused the subordinates to deprive the plaintiff of plaintiff’s constitutional rights;] 

or
 

                                    [the supervisory defendant engaged in conduct that showed a reckless or callous
            indifference to the deprivation by the subordinate of the rights of others;] 

and
 

            4.         The supervisory defendant’s conduct was so closely related to the deprivation of the plaintiff’s rights as to be the moving force that caused the ultimate injury.

            A person acts “under color of state law” when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance or regulation. [[The parties have stipulated that] [I instruct you that] the defendant acted under color of state law.] 

            If you find the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements [he] [she] is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff. If, on the other hand, you find that the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant. 

Comment 

            A supervisor can be held liable in his or her individual capacity under § 1983 only if (1) the supervisor personally participated in the constitutional violation, or (2) there is a “sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989)).  Moreover, for liability to attach, supervisors must have actual supervisory authority over the government actor who committed the alleged violations.  Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018).  In other words, “[t]hey cannot be supervisors of persons beyond their control.”  Id.; Olson v. County of Grant, 127 F.4th 1193, 1998 (9th Cir. 2025) (declining “to impose supervisory liability for a constitutional violation where, at best, there was a cooperative relationship between [law enforcement] colleagues”). There also can be no such supervisorial liability in the absence of an underlying constitutional violation by subordinates. Puente v. City of Phoenix, 123 F.4th 1035, 1064 (9th Cir. 2024).  If the plaintiff alleges a supervisor personally participated in a constitutional violation, use Instruction 9.3 (Section 1983 Claim Against Defendant in Individual Capacity—Elements and Burden of Proof).  If the plaintiff alleges a subordinate committed a constitutional violation and there is a causal connection between the violation and the supervisor’s wrongful conduct, use this instruction. 

            When there is a factual dispute concerning whether an individual is a supervisor for purposes of § 1983 liability, the court should also instruct the jury on the plaintiff’s burden to prove the defendant’s supervisory status. 

            Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9–9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue. 

            Element 3 of this instruction aims to include the principal formulations to establish a supervisor’s § 1983 liability based on Ninth Circuit decisions. 

Supervisors can be held liable for: “1) their own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) for conduct that showed a reckless or callous indifference to the rights of others.” Hyde v. City of Willcox, 23 F.4th 863, 874 (9th Cir. 2022); see Starr, 652 F.3d at 1207-08. 

            A supervisor is liable for the acts of his subordinates if the supervisor participated in or directed the violations.  Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1166 (9th Cir. 2020). 

            In Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991), the Ninth Circuit approved the district court’s instruction that the jury could find a police chief liable in his individual capacity if he “set[ ] in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he kn[e]w or reasonably should [have] know[n], would cause others to inflict the constitutional injury.” Id. at 646 (citations omitted). 

            A supervisor can be held liable in his or her individual capacity if he or she “knew of the violations and failed to act to prevent them.”  Maxwell v. County of San Diego, 708 F.3d 1075, 1086 (9th Cir. 2013); accord Vazquez, 949 F.3d at 1166. 

            In Flores v. County of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014), the court held that plaintiffs must show that the supervisory defendant “was deliberately indifferent to the need to train subordinates, and the lack of training actually caused the constitutional harm or deprivation of rights.”  Under this standard, the supervisor must have “disregarded the known or obvious consequences that a particular omission in their training program would cause . . . employees to violate citizens’ constitutional rights.”  Id. (quoting Connick v. Thompson, 563 U.S. 51, 51-52 (2011)). Also, a plaintiff “may state a claim against a supervisor for deliberate indifference based upon the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her subordinates.”  Starr, 652 F.3d at 1207. 

            Although § 1983 suits do not allow for the imposition of vicarious liability and a plaintiff must prove that each supervisory defendant, through that defendant’s own actions, has violated the Constitution, the factors that a plaintiff must prove in order to establish a claim for supervisory liability depend on the alleged underlying constitutional deprivation.  See Ashcroft v. Iqbal, 556 U.S. 662, 675-77 (2009) (finding that plaintiff needed to plead and prove that supervisors acted with discriminatory purpose or intent in order to state claim for supervisory liability for invidious discrimination in contravention of the First and Fifth Amendments; Starr, 652 F.3d at 1206-07 (explaining that because claim of unconstitutional conditions of confinement may be based on theory of deliberate indifference, unlike claim of unconstitutional discrimination, plaintiff need only show that supervisor acted or failed to act in manner that was deliberately indifferent to inmate’s Eighth Amendment rights in order to hold supervisor liable for his or her own culpable actions).  

Revised March 2025

            In order to prevail on plaintiff [name]’s § 1983 claim against defendant [name of local governing body] alleging liability based on an official policy, practice, or custom, the plaintiff must prove each of the following elements by a preponderance of the evidence:
 

           1.         [Name of defendant’s official or employee] acted under color of state law; 

2.         the act[s] of [name of defendant’s official or employee] deprived plaintiff [name] of particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;

3.         [Name of defendant’s official or employee] acted pursuant to an expressly adopted official policy or a widespread or longstanding practice or custom of the defendant [name of local governing body]; and

4.         defendant [name of local governing body]’s official policy or widespread or longstanding practice or custom caused the deprivation of plaintiff [name]’s rights by the [name of defendant’s official or employee]; that is, the [name of local governing body]’s official policy or widespread or longstanding practice or custom is so closely related to the deprivation of plaintiff [name]’s rights as to be the moving force that caused the ultimate injury. 

            A person acts “under color of state law” when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance or regulation.  [[The parties have stipulated that] [I instruct you that] [name of defendant’s official or employee] acted under color of state law.] 

            “Official policy” means a formal policy, such as a rule or regulation adopted by defendant [name of local governing body], resulting from a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. 

            “Practice or custom” means any longstanding, widespread, or well-settled practice or custom that constitutes a standard operating procedure of defendant [name of local governing body].  [A practice or custom can be established by repeated constitutional violations that were not properly investigated and for which the violator[s] [was] [were] not disciplined, reprimanded or punished.] 

            If you find that plaintiff [name] has proved each of these elements, and if you find that plaintiff [name] has proved all the elements plaintiff [name] is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for plaintiff [name].  If, on the other hand, you find that plaintiff [name] has failed to prove any one or more of these elements, your verdict should be for defendant [name]. 

Comment 

            Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9–9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue. 

            In addition, use this instruction only when Monell liability is based on an expressly adopted official policy or a widespread or longstanding practice or custom of the defendant that is alleged either to be itself unlawful or to direct employees to act in an unlawful manner.  See, e.g., Endy v. Cnty. of Los Angeles, 975 F.3d 757, 769 (9th Cir. 2020); Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014).  For other bases of Monell liability, see Instructions 9.6 (Section 1983 Claim Against Local Governing Body Defendants Based on Act of Final Policymaker—Elements and Burden of Proof), 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof) and 9.8 (Section 1983 Claim Against Local Governing Body Defendants Based on a Failure to Prevent Violations of Law or a Failure to Train—Elements and Burden of Proof). 

            As noted in the Introductory Comment to this chapter, § 1983 liability of a local governing body may not be based on respondeat superior.  Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978).  Such liability may attach when an employee committed a constitutional violation pursuant to an expressly adopted official policy.  Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013). “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.”  Endy, 975 F.3d at 769 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).  “[A] rule or regulation promulgated, adopted, or ratified by a local governmental entity’s legislative body unquestionably satisfies Monell’s policy requirement[.]”  Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989), overruled on other grounds by Bull v. City & County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc).  Whether a municipal policy or custom exists is a question of fact.  Trevino v. Gates, 99 F.3d 911, 920 (9th Cir. 1996) (“Normally, the question of whether a policy or custom exists would be a jury question.  However, when there are no genuine issues of material fact and the plaintiff has failed to establish a prima facie case, disposition by summary judgment is appropriate.”).  

“Official policy” means a formal policy, such as a rule or regulation adopted by the defendant, resulting from a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.  Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986); accord Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021).   

            Such liability may also attach when an employee committed a constitutional violation pursuant to a widespread practice or custom. Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997); Benavidez, 993 F.3d at 1153. A widespread “custom or practice” must be so “persistent” that it constitutes a “permanent and well settled city policy.”  Trevino, 99 F.3dat 918 (quoting Monell, 436 U.S. at 691);see also Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 984 (9th Cir. 2002)(“Showing a ‘longstanding practice or custom which constitutes the “standard operating procedure” of the local government entity’ is one way to establish municipal liability.” (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989))).  A widespread custom or practice cannot be based on “isolated or sporadic incidents; [liability] must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.”  Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 884 (9th Cir. 2022) (quoting Trevino, 99 F.3d at 918). 

             “[A] custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished.”  Hunter v. County of Sacramento, 652 F.3d 1225, 1236 (9^th Cir. 2011); see also Nehad v. Browder, 929 F.3d 1125, 1141-42 (9th Cir. 2019) (citing evidence sufficient to create triable issue regarding informal practice or policy).  The Ninth Circuit has used the term “longstanding” practice or custom interchangeably with the Supreme Court’s more frequent usage of “widespread.”  See, e.g.,Sabra, 44 F.4th at 883Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999); Connick v. Thompson, 563 U.S. 51, 61 (2011).  Use the bracketed language in the last sentence of the penultimate paragraph of the instruction only when the plaintiff has presented substantial evidence of a failure to investigate or discipline and that theory is central to the plaintiff’s case.  See Hunter, 652 F.3d at 1235.“Official nonfeasance can constitute a Monell violation when the municipality in effect ‘has a policy of inaction and such inaction amounts to a failure to protect constitutional rights.’” Scanlon v. County of Los Angeles, 92 F.4th 781, 812 (9th Cir. 2024) (quoting Mortimer v. Baca, 594 F3d 714, 722 (9th Cir. 2010)). 

            A plaintiff seeking to establish municipal liability must demonstrate that the government “had a deliberate policy, custom, or practice that was the ‘moving force’ behind the constitutional violation he suffered.”  Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013) (citations and quotations omitted).  “To meet this requirement, the plaintiff must show both causation-in-fact and proximate causation.”  Id. 

Revised March 2025

            A municipality may be liable for the acts of a final policymaker if these acts caused a constitutional violation, even if the constitutional violation occurs only once.  Pembaur v. City of Cincinnati, 475 U.S. 469, 478 & n.6 (1986); see Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 885 (9th Cir. 2022).  In certain situations, a municipality is also liable if a policymaking official fully delegates his or her discretionary authority to a subordinate, and the subordinate uses that discretion.  Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008) ; see alsoPraprotnik, 485 U.S. at 124.  An official may be found to have been delegated final policymaking authority when the official’s discretionary decision is unconstrained by policies not of that official’s making and unreviewable by the municipality’s authorized policymakers. Lytle v. Carl, 382 F.3d 978, 984 (9th Cir. 2004) (citing Christie v. Iopa, 176 F.3d 1231, 1236-37 (9th Cir. 1999)). 

Revised March 2025

           In order to prevail on the plaintiff’s § 1983 claim against defendant [name of local governing body] alleging liability based on ratification by a final policymaker, the plaintiff must prove each of the following elements by a preponderance of the evidence: 

             First, [name of defendant’s employee] acted under color of state law; 

             Second, the [act[s]][failure to act] of [name of defendant’s employee] deprived the plaintiff of  particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions; 

             Third, [name of person the plaintiff alleges was a final policymaker] acted under color of state law; 

             Fourth, [name of final policymaker] had final policymaking authority from defendant [name of local governing body] concerning the [act[s]] [failure to act] of [name of defendant’s employee]; and 

             Fifth, [name of final policymaker] ratified [name of defendant’s employee]’s [act[s] [failure to act], that is, [name of alleged final policymaker] knew of and specifically made a deliberate choice to approve [name of defendant’s employee]’s [act[s]] [failure to act] and the basis for it. 

             A person acts “under color of state law” when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation.  [[The parties have stipulated that] [I instruct you that] the defendant’s [employee] [official] acted under color of state law.] 

             I instruct you that [name of final policymaker] had final policymaking authority from defendant [name of local governing body] concerning the act[s] at issue and, therefore, the fourth element requires no proof. 

             If you find that the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements the plaintiff is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff.  If, on the other hand, the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant.

 Comment 

             Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9–9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue. 

             In addition, use this instruction only when Monell liability is based on ratification by a final policymaker.  For other bases of Monell liability, see Instructions 9.5 (Section 1983 Claim Against Local Governing Body Defendants Based on Unlawful Official Policy, Practice, or Custom—Elements and Burden of Proof), 9.6 (Section 1983 Claim Against Local Governing Body Defendants Based on Act of Final Policymaker—Elements and Burden of Proof), and 9.8 (Section 1983 Claim Against Local Governing Body Defendants Based on a Policy that Fails to Prevent Violations of Law or a Policy of Failure to Train—Elements and Burden of Proof). 

             As noted in the Introductory Comment to this Chapter, § 1983 liability of a local governing body lies when “action pursuant to official municipal policy of some nature caused a constitutional tort,” and not on the basis of respondeatsuperior.  Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978).  A municipality can be liable for an isolated constitutional violation if a final policymaker “ratified” a subordinate’s actions.  Sabra v. Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 885 (9th Cir. 2022); Christie v. Iopa, 176 F.3d 1231, 1238 (9th Cir. 1999); seeCity of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).  To show ratification, a plaintiff must prove that the authorized policymaker approved a subordinate’s decision and the basis for it.  Sabra, 44 F.4th at 885.  See also Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004) (“The policymaker must have knowledge of the constitutional violation and actually approve of it.” (citing Praprotnik, 485 U.S. at 127)).

             The policymaker must have knowledge (actual or constructive) of the constitutional violation and actually approve of it.  Lytle, 382 F.3d at 987; Sabra, 44 F.4th at 885. Ratification generally requires more than acquiescence. Dodge, 56 F.4th at 788 (“a mere failure to discipline . . . does not amount to ratification”).  A mere failure to overrule a subordinate’s actions, without more, is insufficient to support a § 1983 ratification claim. Lytle, 382 F.3d at 987–88 (“[R]atification requires both knowledge of the alleged constitutional violation, and proof that the policymaker specifically approved of the subordinate’s act.”); Christie, 176 F.3d at 1239; Puente v. City of Phoenix, 123 F.4th 1035, 1066 (9th Cir. 2024) (rejecting a ratification argument absent evidence final policy maker “knew and approved” of a subordinate’s decision and the “basis for it”).

             The court must determine as a matter of state law whether certain employees or officials have the power to make official or final policy on a particular issue or subject area.  Jettv. Dallas Indep. Sch. Dist., 491 U.S. 701, 737-38 (1989); see alsoLytle, 382 F.3d at 983 (“For a person to be a final policymaker, he or she must be in a position of authority such that a final decision by that person may appropriately be attributed to the [defendant public body].”)Sabra, 44 F.4th at 885 (rejecting contention that “a professor becomes a ‘final policymaker’ for an entire community college district simply by assuming administrative responsibilities within his department”).

Revised March 2025

            In order to prevail on plaintiff [name]’s § 1983 claim against defendant [name of local governing body] alleging liability based on a policy [that fails to prevent violations of law by its] [of a failure to train its] [police officers] [employees], plaintiff [name] must prove each of the following elements by a preponderance of the evidence:

First, the [act[s]] [failure to act] of [name of defendant’s [police officer[s]] [employee[s]]] deprived plaintiff [name] of [his] [her] particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions;

Second, [name of defendant’s [police officer[s]] [employee[s]]] acted under color of state law;

Third, the [training] policies of defendant [name of local governing body] were not adequate to [prevent violations of law by its employees] [train its [police officers] [employees] to handle the usual and recurring situations with which they must deal];

Fourth, defendant [name of local governing body] was deliberately indifferent to the [substantial risk that its policies were inadequate to prevent violations of law by its employees] [known or obvious consequences of its failure to train its [police officers] [employees] adequately]; and

Fifth, the failure of defendant [name of local governing body] [to prevent violations of law by its employees] [to provide adequate training] caused the deprivation of plaintiff [name]’s rights by [name of defendant’s [police officer[s]][employee[s]]]; that is, defendant [name]’s failure [to prevent violations of law by its employees] [to train] played a substantial part in bringing about or actually causing the injury or damage to plaintiff [name].

            A person acts “under color of state law” when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance or regulation. [[The parties have stipulated that] [I instruct you that] [name of defendant’s [police officer[s]] [employee[s]] acted under color of state law.]

            A policy is a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.  [A policy of inaction or omission may be based on a failure to implement procedural safeguards to prevent constitutional violations.  To establish that there is a policy based on a failure to preserve constitutional rights, plaintiff [name] must show, in addition to a constitutional violation, that this policy amounts to deliberate indifference to plaintiff [name]’s constitutional rights, and that the policy caused the violation, in the sense that the municipality could have prevented the violation with an appropriate policy.]

            “Deliberate indifference” is the conscious choice to disregard a known or obvious consequences of one’s acts or omissions.  Plaintiff [name] may prove deliberate indifference in this case by showing that the facts available to defendant [name of local governing body] put it on actual or constructive notice that its [failure to implement adequate policies] [failure to train adequately] was substantially certain to result in the violation of the constitutional rights of persons such as plaintiff [name] due to [police officer[s]] [employee[s]]’s conduct.

            If you find that plaintiff [name] has proved each of these elements, and if you find that plaintiff [name] has proved all the elements plaintiff [name] is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for plaintiff [name].  If, on the other hand, plaintiff [name] has failed to prove any one or more of these elements, your verdict should be for defendant [name].

Comment

            Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9–9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue.

            In addition, use this instruction only when Monell liability is based on a local governing body’s policy of inaction, such as a failure to train its police officers.  

            As noted in the Introductory Comment to this chapter, § 1983 liability of a local governing body may not be based on respondeat superior.  Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978).  Instead, a plaintiff must establish a “direct causal link” between the municipal policy or custom and the alleged constitutional violation.  See City of Canton v. Harris, 489 U.S. 378, 385 (1989); Sandoval v. Cnty. of San Diego, 985 F.3d 657, 681 (9th Cir. 2021). This “requires showing both but for and proximate causation.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) (quoting Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). In Harper, the Ninth Circuit approved of a jury instruction that explained that “proximate cause exists where ‘an act or omission played a substantial part in bringing about or actually causing the injury or damage to plaintiffs.’” Harper, 533 F.3d at 1026;Puente v. City of Phoenix, 123 F.4th 1035, 1067 (9th Cir. 2024) (noting that “failure to train” claim rests on showing that the plaintiff’s injury “in particular was the obvious result of the allegedly inadequate training” and that the plaintiff failed to show that the particular constitutional injury was such an obvious consequence of “the failure to more thoroughly train its officers on the use of chemical agents that it amounted to ‘deliberate indifference’ toward her rights”) (emphasis in original).

            “A policy of inaction or omission may be based on failure to implement procedural safeguards to prevent constitutional violations.”  Tsao, 698 F.3d at 1143. A local government’s failure to train its employees “may serve as the basis for § 1983 liability . . . where the failure to train amounts to deliberate indifference to the rights of persons with whom the [employees] come into contact.” City of Canton, 489 U.S. at 388; see Connick v. Thompson, 563 U.S. 51, 61 (2011)     The elements of a failure to train Monell claim are: (1) a constitutional violation; (2) a municipal training policy that amounts to a deliberate indifference to constitutional rights; and (3) that the constitutional injury would not have resulted if the municipality properly trained their employees.  Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153-54 (9th Cir. 2021).

              “Deliberate indifference” requires proof that a municipal actor disregarded a known or obvious consequence of his action.  Connick, 563 U.S. at 61 (“[W]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program.”); see alsoCastro v. Cnty. of Los Angeles, 833 F.3d 1060, 1077 (9th Cir. 2016) (en banc)(“Where a § 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the dictates of Monell are satisfied.” (quoting City of Canton, 489 U.S. at 396))..  In Castro v. County of Los Angeles, 833 F.3d at 1076 (9th Cir. 2016) (en banc), the Ninth Circuit held that the deliberate indifference inquiry is objective for pretrial detainees’ failure-to-protect claims. “A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.”  Connick, 563 U.S. at 62; see also Hyde v. City of Willcox, 23 F.4th 863, 874-75 (9th Cir. 2022) (holding that “[w]hile deliberate indifference can be inferred from a single incident when the unconstitutional consequences of failing to train are patently obvious, an inadequate training policy itself cannot be inferred from a single incident.”) (quotation marks and citation omitted); Flores v. County of Los Angeles, 758 F.3d 1154, 1159-60 (9th Cir. 2014) (holding that, absent pattern of sexual assaults by deputies, alleged failure to train officers not to commit sexual assault did not constitute deliberate indifference); Marsh v. County of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012) (holding that practice must be “widespread” and proof of single inadequately-trained employee was insufficient); Doughtery v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (“Mere negligence in training or supervision … does not give rise to a Monell claim.”). 

However, the Supreme Court has “left open the possibility that, ‘in a narrow range of circumstances,’ a pattern of similar violations might not be necessary to show deliberate indifference,” using the hypothetical of a case in which an officer was provided firearms but given no training on the constitutional limits on the use of deadly force.  Connick, 563 U.S. at 63-64 (quotingBd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997), and citing Canton, 489 U.S. at 389-90).  In Kirkpatrick v. Washoe County, 843 F.3d 784 (9th Cir. 2016) (en banc), the Ninth Circuit held that a county social services agency’s complete failure to train its social workers on the procedures for obtaining a warrant and when a warrant is required before taking a child from a parent was just such a “narrow circumstance” in which evidence of a pattern of similar violations was unnecessary.  See id. at 796-97.  In Sandoval v. County of San Diego, 985 F.3d 657, 682 (9th Cir. 2021), the Ninth Circuit applied an objective deliberate indifference standard to the county’s policy of maintaining a mixed-use cell—sometimes using the cell for medical care and other times as a general holding cell—with only an informal verbal pass-off system for notifying nurses whether the detainee in the mixed-use cell required medical supervision. The court held that the standard “requires a showing that the facts available to the county put it on ‘actual or constructive notice’ that its practices with regard to [the mixed-use] cell were ‘substantially certain to result in the violation of the constitutional rights of [its] citizens.’” Id. (footnote omitted) (quoting Castro, 833 F.3d at 1076). 

If the plaintiff is alleging inadequate hiring or screening of employees, inadequate supervision, or failure to adopt a needed policy, elements 3 through 5 of this instruction should be modified accordingly.  See Brown, 520 U.S. at 409-11 (addressing failure to screen candidates); Jackson v. Barnes, 749 F.3d 755, 763-64 (9th Cir. 2014) (addressing failure to supervise), cert. denied, 135 S. Ct. 980 (2015); Tsao, 698 F.3d at 1143 (addressing failure to implement policy).  As with a failure to train claim, the plaintiff must show that the failure to properly hire, supervise, or adopt a policy amounted to deliberate indifference by the governing body.  See, e.g., Brown, 520 U.S. at 407; Tsao, 698 F.3d at 1143, 1145.  For other bases of Monell liability, see Instructions 9.5 (Section 1983 Claim Against Local Governing Body Defendants Based on Official Policy, Practice, or Custom that Violates Law or Directs Employee to Violate Law—Elements and Burden of Proof), 9.6 (Section 1983 Claim Against Local Governing Body Defendants Based on Act of Final Policymaker—Elements and Burden of Proof), and 9.7 (Section 1983 Claim Against Local Governing Body Defendants Based on Ratification—Elements and Burden of Proof).

In Bell v. Williams, 108 F.4th 809 (9th Cir. 2024), the Ninth Circuit reiterated that, under Monell, a plaintiff “must show a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” Id. at 824. The court added: “One way of doing so is by showing that the municipality demonstrated deliberate indifference to constitutional rights when it trained its employees. This requires proof that a municipal actor disregarded a known or obvious consequence of his action.” Id. Where “the training program for jail officers . . . covered the relevant topics with reasonable specificity,” the program “does not demonstrate deliberate indifference to a known risk” for purposes of Monell liability even if there are “narrow gaps” in the training. Id. at 825-26. 

Revised March 2025

              As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution.  In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].  

             Under the First Amendment, a public employee has a qualified right to speak on matters of public concern.  I instruct you that the plaintiff's the speech was on a matter of public concern.  In order to prove the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:

              1.         the plaintiff spoke as a private citizen and not as part of [his] [her] official duties as a
                          public employee;

              2.         the defendant took an adverse employment action against the plaintiff; and

              3.         the plaintiff’s speech was a substantial or motivating factor for the adverse employment action.

              An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from engaging in protected activity.

              A substantial or motivating factor is a significant factor, though not necessarily the only factor. 

             If the plaintiff establishes each of the foregoing elements, the burden shifts to the defendant to prove by a preponderance of the evidence that the defendant would have taken the action(s) in question, even in the absence of any motive to retaliate against the plaintiff.  If you find that the defendant is able to demonstrate this, you must find for the defendant.  If you find that the defendant is not able to demonstrate this, you must find for the plaintiff.  

Comment 

            Use this instruction only in conjunction with the applicable elements instruction, Instructions 9.3–9.8, and when the plaintiff is a public employee.  Use Instruction 9.11 (Particular Rights—First Amendment—“Citizen” Plaintiff) when the plaintiff is a private citizen.  Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act in order to avoid any risk of misstating the law.  See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir. 2009).  If there is a dispute about whether the public employee was speaking as a private citizen, use Instruction 9.10 (Particular Rights—First Amendment—Public Employees—Speaking as a Private Citizen).

              As to whether a public employee’s speech is protected under the First Amendment, the Supreme Court has “made clear that public employees do not surrender all their First Amendment rights by reason of their employment.  Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”  Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see also Borough of Duryea v. Guarnieri, 564 U.S. 379, 398 (2011) (applying Garcetti public concern test to public employee’s First Amendment Petition Clause claims).

              In Hernandez v. City of Phoenix, 43 F.4th 966, 976 (9th Cir. 2022), the Ninth Circuit reiterated the “five sequential steps to analyze First Amendment retaliation claims brought by government employees:” :  

(1) [W]hether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.                                                              

Id. (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)); see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 276 (1977); Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968); see also Dodge v. Evergreen Sch. Dist. #114, 56 F.4th 767, 776-77 (9th Cir. 2022) (setting forth legal standard for public employee First Amendment retaliation claims); Riley’s Am. Heritage Farms v. Elsasser, 32 F.4th 707, 721 (9th Cir. 2022) (same).

              Under the framework above, the government employee bears the burden of proving the first three steps of the test.  See Moser v. Las Vegas Metro. Police Dep't, 984 F.3d 900, 904 (9th Cir. 2021).  If the employee succeeds in making that threshold showing, the burden then shifts to the government to prove steps four and five.  See id.; Ohlson v. Brady, 9 F.4th 1156, 1162 (9th Cir. 2021); see also Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 531 (2022) (discussing the burden shifting framework of the Pickering-Garcetti analysis).           

              The “public concern inquiry is purely a question of law,” Eng, 552 F.3d at 1070, that depends on the “content, form, and context of a given statement, as revealed by the whole record.”  Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d 900, 905 (9th Cir. 2021) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)))); see also Adams v. County of Sacramento, 116 F.4th 1004 (9th Cir. 2024) (holding that private text exchange related to offensive images did not involve a matter of public concern).

             In Garcetti, the Supreme Court held“that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”  547 U.S. at 421-22.  The Supreme Court, however, limited its ruling in two respects.  First, in an explicit effort to avoid having its holding serve as an invitation for employers to restrict employees’ rights “by creating excessively broad job descriptions,” the Court noted that “the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.”  Id. at 424-25.  Second, the Court recognized that 

[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence … [F]or that reason [we] do not[] decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching. 

 Id. at 425. 

             In Demers v. Austin, 746 F.3d 402, 406 (9th Cir. 2014), however, the Ninth Circuit answered the latter question and held that “Garcetti does not apply to ‘speech related to scholarship or teaching.’”  Rather, the Ninth Circuit held that such speech is governed by Pickering v. Board of Education, 391 U.S. 563 (1968) (considering speech by public school teacher critical of school board).  Id.  The Demers court went on to conclude that a state university professor’s plan for changes in his department addressed a matter of public concern under Pickering.  Id. at 414-17.  By contrast, in Kennedy v. Bremerton School District, the Supreme Court held that a football coach spoke not as a public employee, but as a private citizen, when he decided “to persist in praying quietly without his players after three games in October 2015,” 597 U.S. 507, 525-26 (2022), which were “the three prayers that resulted in his suspension,” id. at 529. 

             The definition of “adverse employment action” in this instruction is substantially the same as that in Instruction 10.10 (Civil Rights—Title VII—“Adverse Employment Action” in Retaliation Cases).  See the Comment to that instruction for supporting authorities. 

             With respect to causation, “[i]t is clear . . . that the causation is understood to be but-for causation, without which the adverse action would not have been taken.”  Hartman v. Moore, 547 U.S. 250, 260 (2006). Thus, “upon a prima facie showing of retaliatory harm, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of (such as firing the employee).”  Id.  The Ninth Circuit has held that “a final decision maker’s wholly independent, legitimate decision to terminate an employee [can] insulate from liability a lower-level supervisor involved in the process who had a retaliatory motive to have the employee fired” when, as a matter of causation, “the termination decision was not shown to be influenced by the subordinate’s retaliatory motives.”  Lakeside-Scott v. Multnomah County, 556 F.3d 797, 799 (9th Cir. 2009); see also Greisen v. Hanken, 925 F.3d 1097, 1115-17 (9th Cir. 2019) (finding substantial evidence supported proximate causation conclusion even though plaintiff was terminated by defendant’s successor because “[defendant]’s actions were a casual factor in [the successor]’s decision”). 

              Regarding motive, the defendant’s actions must have been substantially motivated by a desire to deter or chill the employee’s speech.  Awabdy v. City of Adelanto, 368 F.3d 1062, 1071 (9th Cir. 2004); see Dodge, 56 F.4th at 781. .Defining “substantial or motivating factor” as a “significant factor” does not misstate the law.  Ostad v. Or. Health Scis. Univ., 327 F.3d 876, 884-85 (9th Cir. 2003); see also Capp v. City of San Diego, 940 F.3d 1046, 1056 (9th Cir. 2019) (explaining that retaliatory intent may still be one substantial or motivating factor for retaliatory conduct even if other, non-retaliatory reasons exist). 

             This instruction should be modified when an employee was allegedly subjected to an adverse employment action based on an employer’s erroneous belief that the employee engaged in protected speech.  In such cases, it is the employer’s motive for taking the adverse action that triggers the employee’s right to bring an action.  See Heffernan v. City of Paterson, 578 U.S. 266, 273(2016) (“When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983—even if, as here, the employer makes a factual mistake about the employee’s behavior.”). 

             This instruction also should be modified when a public employee alleges an adverse employment action based on the employee’s refusal to enter into an unconstitutional prior restraint, limiting the public employee’s right to speak as a private citizen on a matter of public concern.  See Barone v. City of Springfield, 902 F.3d 1091, 1101-06 (9th Cir. 2018).  

“Although the [Supreme] Court first applied this framework to government employees, it extended its application to retaliation cases brought by government contractors because ‘the similarities between government employees and government contractors with respect to this issue are obvious.’”  Riley’s Am. Heritage Farms, 32 F.4th at 720 (quoting Bd. of Cnty. Comm’rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 674 (1996)).  Moreover, the Ninth Circuit has extended this framework “to a range of situations where ‘the relationship between the parties is analogous to that between an employer and employee,’” including cases involving “a business vendor operating under a contract with the government for weatherization services,” “a domestic violence counselor employed by a private company that performed counseling services for a municipal court,” and “a volunteer probation officer.”  Id. at 720-21.  The Ninth Circuit has also extended this framework to a case in which a school district relied on a private company to provide educational services for public school students.  Id. at 722. 

This instruction does not apply to restrictions on the speech of elected officials because “an elected official’s speech is protected regardless [of] whether the official is speaking ‘as a citizen upon a matter of public concern.’”  See Boquist v. Courtney, 32 F.4th 764, 780 (9th Cir. 2022) (quoting Garcetti, 547 U.S. at 418).  

            After a plaintiff establishes the first three steps, he or she has made out a prima facie case, and at step four the burden shifts to the government “to show that ‘under the balancing test established by Pickering, [the government’s] legitimate administrative interests outweigh the employee’s First Amendment rights.’”  Moser v. Las Vegas Metro. Police. Dept., 984 F.3d 900, 906 (9th Cir. 2021) (quoting Eng, 552 F.3d at 1071) (holding the government failed to satisfy its step four burden because it did not produce any evidence indicating the speech at issue caused or would cause disruption).  “[T]he Pickering balancing test is a legal question, but its resolution often entails underlying factual disputes that need to be resolved by a fact-finder.”  Id. at 911 (quoting Eng, 552 F.3d at 1071). 

Revised November 2024

           A plaintiff speaks as a public employee when he or she makes statements pursuant to his or her official duties.  In contrast, a plaintiff speaks as a private citizen if the plaintiff had no official duty to make the statements at issue, or if the speech was not the product of performing the tasks the plaintiff was paid to perform. 

             In deciding whether a public employee was speaking as a citizen and not as part of his or her official duties, and thus whether his or her speech was constitutionally protected under the First Amendment, you may consider the following factors: 

             (1)       Did the plaintiff confine the communications to the plaintiff’s chain of command?  If so, then such speech may fall within the plaintiff’s official duties.  If not, then such speech may fall outside of the plaintiff’s official duties. 

             (2)       Was the subject matter of the communication within the plaintiff’s job duties?  If so, then such speech may fall within the plaintiff’s official duties.  If not, then such speech may fall outside of the plaintiff’s official duties. 

             (3)       Did the plaintiff speak in direct contravention to the plaintiff’s  supervisor’s orders?  If so, then such speech may fall outside of the plaintiff’s official duties.  If not, then such speech may fall within the plaintiff’s official duties. 

             (4)       Was the subject matter of the communication about broad concerns over corruption or systemic abuse beyond the specific department, agency, or office where the plaintiff worked?  If so, then such speech may fall outside of the plaintiff’s official duties.  If not, then such speech may fall within the plaintiff’s official duties. 

 Comment 

             “Speech made by public employees in their official capacity is not insulated from employer discipline by the First Amendment but speech made in their private capacity as a citizen is.”  Brandon v. Maricopa Cnty., 849 F.3d 837, 843 (9th Cir. 2017) (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)); see also Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2423 (2022) (“If a public employee speaks ‘pursuant to [his or her] official duties,’ this Court has said the Free Speech Clause generally will not shield the individual from an employer’s control and discipline . . . .”).  The Ninth Circuit has described the inquiry into whether the employee’s speech is protected as “fact-intensive” and explained that “no single formulation of factors can encompass the full set of inquiries relevant to determining the scope of a plaintiff’s job duties.”  Dahlia v. Rodriguez, 735 F.3d 1060, 1074-76 (9th Cir. 2013) (en banc); see alsoLindke v. Freed, 601 U.S. 187, 203 (2024) (noting that, in the context of analyzing whether a public official’s social media activity is speech pursuant to their official duties or in their personal capacity, the court ought to engage in a fact-specific undertaking in which each post’s “content and function are the most important considerations”).  For a discussion of “guiding principles for undertaking the practical factual inquiry,” seeBrandon, 849 F.3d at 843 (citing Dahlia, 735 F.3d at 1074-76); see also Kennedy, 142 S. Ct. at 2424 (describing Garcetti and explaining that the prosecutor’s memorandum at issue in that case was government speech because it was speech the government itself had commissioned or created and speech the employee was expected to deliver in the course of carrying out his job).  

In Kennedy v. Bremerton School District, the Supreme Court held that a public high school football coach spoke not as a public employee, but as a private citizen, when he decided “to persist in praying quietly without his players after three games in October 2015,” 142 S. Ct. at 2422 , which were “the three prayers that resulted in his suspension,” id. at 2424.  The Supreme Court explained: 
 

[The coach] did not speak pursuant to government policy.  He was not seeking to convey a government-created message.  He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach.  Simply put: Mr. Kennedy’s prayers did not “ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee.  

Id. (citations omitted);; see also Moonin v. Tice, 868 F.3d 853 (9th Cir. 2017) (holding prior restraint prohibiting highway patrol officers from speaking about controversial canine drug interdiction program with anyone outside of law enforcement violates First Amendment); Barone v. City of Springfield, 902 F.3d 1091, 1101-06 (9th Cir. 2018) (holding that prior restraint prohibiting police officer from speaking or writing “anything of a disparaging or negative manner related to the Department/Organization/City of Springfield or its Employees” violated First Amendment); 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); Dodge v. Evergreen School District, 56 F.4th 767, 778 (9th Cir. 2022) (concluding that teacher engaged in expression as private citizen entitled to First Amendment protection rather than employee when he “display[ed] a message on a personal item while attending a teacher-only training”).

On the other hand, in Linthicum v. Wagner, 94 F.4th 887 (9th Cir. 2024) the Ninth Circuit determined that senators who staged a walkout in protest of a legislative assembly and were subsequently disqualified from appearing on the next election ballot due to a prohibited number of unexcused absences were not engaging in protected speech. The panel based their reasoning on Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011), a Supreme Court case that addressed the interplay between legislative power and the First Amendment and concluded that the senators’ right to walk out was an exercise of legislative power rather than personal expressive speech. Linthicum, 94 F.4th at 893 (“No private citizen enjoys the privilege to advance or frustrate legislative action directly in the legislature . . . . The use of that power [(the walk out)] therefore implicates the governmental mechanics of the legislative process,” and Carrigan makes clear that a legislator has no right under the First Amendment to use that official power for expressive purposes.’”) (quoting Carrigan, 564 U.S. at 127)); see also Sullivan v. Univ. of Wash., 60 F.4th 574, 581-82 (9th Cir. 2023) (holding that the First Amendment right of expressive association did not protect the work of committee members individually or collectively when they were appointed to serve a public function and their work fell within the scope of their official duties on a university committee). 

Revised June 2024

            As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution.  In this case, the plaintiff alleges the defendant deprived the plaintiff of  rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claim].

              Under the First Amendment, a citizen has the right [to free expression] [to petition the government] [to access the courts] [other applicable right].  To establish the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:

First, the plaintiff was engaged in a constitutionally protected activity;

Second, the defendant’s actions against the plaintiff would chill a person of ordinary firmness from continuing to engage in the protected activity; and

Third, the plaintiff’s protected activity was a substantial or motivating factor in the defendant’s conduct.  

            [I instruct you that the plaintiff’s [speech in this case about [specify]] [specify conduct] was protected under the First Amendment and, therefore, the first element requires no proof.]  

            A substantial or motivating factor is a significant factor, though not necessarily the only factor. 

If the plaintiff establishes each of the foregoing elements, the burden shifts to the defendant to prove by a preponderance of the evidence that the defendant would have taken the action(s) in question, even in the absence of any motive to retaliate against the plaintiff.  If you find that the defendant is able to demonstrate this, you must find for the defendant.  If you find that the defendant is not able to demonstrate this, you must find for the plaintiff. 

Comment  

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and when the plaintiff is a private citizen.  Use Instruction 9.9 (Particular Rights—First Amendment—Public Employees—Speech) when the plaintiff is a public employee.  Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act to avoid any risk of misstating the law.  See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir. 2009). 

             Under the First Amendment to the United States Constitution, a citizen has the right to be free from governmental action taken to retaliate against the citizen’s exercise of First Amendment rights or to deter the citizen from exercising those rights in the future.  Sloman v. Tadlock, 21 F.3d 1462, 1469-70 (9th Cir. 1994).  “Although officials may constitutionally impose time, place, and manner restrictions on political expression carried out on sidewalks and median strips, they may not ‘discriminate in the regulation of expression on the basis of content of that expression.’  ‘State action designed to retaliate against, and chill political expression strikes at the very heart of the First Amendment.’”  Id. at 1469 (citations omitted).  

             However, “members of the public do not have a constitutional right to force the government to listen to their views...[a]nd the First Amendment does not compel the government to respond to speech directed toward it (citations omitted).” L.F. v. Lake Washington School District #414, 947 F.3d 621, 626 (9th Cir. 2020) (citing Minn. State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283 (1984); Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 465 (1979) (per curiam)). 

             “A plaintiff may bring a Section 1983 claim alleging that public officials, acting in their official capacity, took action with the intent to retaliate against, obstruct, or chill the plaintiff’s First Amendment rights.”  Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 867 (9th Cir. 2016). In Matsumoto v. Labrador, 122 F.4th 787, 802 (9th Cir. 2024), the court held that a pre-enforcement action brought by abortion rights advocacy organizations against the Idaho attorney general fell within an exception to Ex parte Young for the state’s Eleventh Amendment immunity, which allows “actions for prospective declaratory or injunctive relief against state officers in their official capacities” provided that the officer has “some connection with the enforcement of the act.”  The attorney general had “some connection” to the enforcement because the statute specifically granted authority to the attorney general to prosecute “abortion trafficking.” Id. “To bring a First Amendment retaliation claim, the plaintiff must allege that (1) it engaged in constitutionally protected activity; (2) the defendant’s actions would ‘chill a person of ordinary firmness’ from continuing to engage in the protected activity; and (3) the protected activity was a substantial or motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and an intent to chill speech.” Ariz. Students’ Ass’n, 824 F.3d at 867.; Sanderlin v. Dwyer, 116 F.4th 905, 910-11 (9th Cir. 2024);  Koala v. Khosla, 931 F.3d 887, 905 (9th Cir. 2019). 

             Defining “substantial or motivating factor” as a “significant factor” does not misstate the law.  Ostad v. Or. Health Scis. Univ., 327 F.3d 876, 884-85 (9th Cir. 2003); see also Capp v. City of San Diego, 940 F.3d 1046, 1056 (9th Cir. 2019) (explaining that retaliatory intent may still be one substantial or motivating factor for retaliatory conduct even if other, non-retaliatory reasons exist). And “[i]f a factfinder concludes that there was no legitimate justification for [the defendant’s] actions, they could reasonably infer that those actions were motivated by retaliatory animus.” Sanderlin, 116 F.4th at 911.  A plaintiff need not prove, however,that “his speech was actually inhibited or suppressed.”  Mendocino Env’t Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999); Ariz. Students’ Ass’n, 824 F.3d at 867.

             But see Sharp v. County of Orange, 871 F.3d 901, 919 (9th Cir. 2017) (applying but-for causation standard in summary judgment context); see also Skoog v. County of Clackamas, 469 F.3d 1221, 1231-32 (9th Cir. 2006). 

             In determining whether the First Amendment protects student speech in a public school, it is error to use the “public concern” standard applicable to actions brought by governmental employees.  Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 759 (9th Cir. 2006).  Instead, the proper standard to apply to on campus student speech is set forth in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969).  Pinard, 467 F.3d at 759; see Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594 U.S. 180, 188 (2021) (noting the Court’s priorapplications of Tinker standard as recognizing schools’ “special interest inregulating speech that ‘materially disrupts classwork or involves substantial disorderor invasion of the rights of others’” (citation omitted));see also Waln v. Dysart School District, 54 F.4th 1152, 1161-63 (9th Cir. 2022). 

             Relevant considerations into whether speech bears a sufficient nexus to the school include: (1) the degree and likelihood of harm to the school caused or augured by the speech, (2) whether it was reasonably foreseeable that the speech would reach and impact the school, and (3) the relation between the content and context of the speech and the school.”  Chen v. Albany Unified Sch. Dist., 56 F.4th 708, 720 (9th Cir. 2022); see also C.R. v. Eugene Sch. Dist. 4J, 835 F.3d 1142, 1150-52 (9th Cir. 2016); Wynar v. Douglas Cnty. Sch. Dist., 728 F. 3d. 1062, 1069 (9th Cir. 2013).  

             The Supreme Court has declined to set forth a “broad, highly general First Amendment rule stating just what counts as ‘off campus’ speech” and, instead, set forth three features of off-campus speech that “diminish the strength of the unique educational characteristics that might call for special First Amendment leeway.”  Mahanoy Area Sch. Dist v. B.L. ex rel Levy, 594 U.S. at 189 (2021).  First, “a school, in relation to off-campus speech, will rarely stand in loco parentis.”  Id. Second, regulation of off-campus speech coupled with regulation of on-campus speech, encompasses the entirety of the speech a student utters in a day.  Id. at 189-90. Third, schools must be mindful of their own interest in protecting students’ unpopular expression, particularly when that expression occurs off-campus, consistent with the role of America’s public schools as “nurseries of democracy.”  Id. at 190.

             The additional considerations articulated in Mahanoy are not inconsistent with the sufficient-nexus test articulated in McNeil. Chen, 56 F.4th at 720.Thus, the proper inquiry “must apply the McNeil sufficient-nexus test to the speech at issue. . . , keeping in mind the additional considerations identified in Mahanoy.” Id. 

             “[A] speech restriction cannot satisfy the time, place, manner test if the restriction does not contain clear standards.”  OSU Student All. v. Ray, 699 F.3d 1053, 1066 (9th Cir. 2012); see also City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 758 (1988) (“[T]he absence of express standards makes it difficult to distinguish, ‘as applied,’ between a licensor’s legitimate denial of a permit and its illegitimate abuse of censorial power. Standards provide the guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech.”).  Off-campus student speech may not be protected under the First Amendment when, based on the totality of the circumstances, the speech bears a sufficient nexus to the school.  McNeil v. Sherwood Sch. Dist. 88J, 918 F.3d 700, 707 (9th Cir. 2019).    

             For a discussion of the boundaries between First Amendment protected expression and unprotected business activity by a street performer, see Santopietro v. Howell, 857 F.3d 980 (9th Cir. 2017). 

             “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.”  Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted); accordChavez v. Robinson, 12 F.4th 978, 1001 (9th Cir. 2021).  The filing of a grievance or complaint, whether it be verbal or written, formal or informal, is protected conduct.. Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 2017). Threats to sue and/or pursue criminal charges fall within the purview of the constitutionally protected right to file grievances.  Id. at 1044. “Prisoners have a First Amendment right to receive information while incarcerated,” but this right must be balanced against a prison’s need for effective administration and reform.  Jones v. Slade, 23 F.4th 1124, 1134 (9th Cir. 2022).  Prison regulations that affect information or mailings available to inmates are reviewed pursuant to the four-factor deferential standard set forth in Turner v. Safley, 482 U.S. 78 (1987).  Id. at 1134-35 (applying Turner standard to music CDs confiscated as contraband per prison regulations); see also Prison Legal News v. Ryan, 39 F.4th 1121, 1131-35 (9th Cir. 2022) (applying Turner standard to prison rule prohibiting inmates from receiving mail containing sexually explicit material). 

            Within the context of First Amendment retaliatory arrest claims, plaintiffs “must generally ‘plead and prove the absence of probable cause,’ because the presence of probable cause generally ‘speaks to the objective reasonableness of an arrest’ and suggests that the ‘officer’s animus’ is not what caused the arrest.”  Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022) (quoting Nieves v. Bartlett, 587 U.S. 391, 400 (2019)).  However, the Supreme Court has “carved out a ‘narrow’ exception for cases where ‘officers have probable cause to make arrests, but typically exercise their discretion not to do so,’” Ballentine, 28 F.4th at 62 (quoting Nieves, 587 U.S. at 406).  In such cases, which involve offenses like jaywalking and defacing public property with chalk, “the Nieves exception only applies ‘when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.’”  Id. at 407; see also Gonzalez v. Trevino, 602 U.S. 653, 658 (2024) (reversing the Fifth Circuit’s “overly cramped view of Nieves” and explaining that to fall within the Nieves exception a plaintiff must produce objective evidence showing that in circumstances where officers have probable cause to make arrests, they “typically exercise their discretion not to do so”). 

If a plaintiff bringing a retaliatory arrest claim establishes that protected conduct was a substantial or motivating factor behind the plaintiff’s arrest, then “the defendant can prevail only by a showing that the [arrest] would have been initiated without respect to retaliation.”  Ballentine, 28 F.4th at 63 (quoting Nieves, 587 U.S. at 404, 406-07). If a plaintiff has established that the police lacked probable cause for an arrest, the plaintiff must show that the alleged retaliation was a substantial or motivating factor behind the arrest, and, if that showing is made, the defendant can prevail only by showing that the arrest would have been initiated without respect to retaliation.  Hill v. City of Fountain Valley, 70 F.4th 507, 518-19 (9th Cir. 2023) (relying on test set out in Mt. Healthy City Sch. Dist. Bd. of Educ. V. Doyle, 429 U.S. 274 (1977)). 

              This instruction properly applies to First Amendment claims concerning speech by elected officials.  See Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 2022) (citing Blair v. Bethel Sch. Dist., 608 F.3d 540, 542-43 (9th Cir. 2010)).  The first element in Instruction 9.11 “is readily met when elected officials express their views and opinions.”  Id. at 775.  However, the second element is more difficult for elected officials to establish.  Id. at 776.  This is because “the First Amendment . . . ‘doesn’t shield public figures from the give-and-take of the political process.’”  Id. (citing Blair, 608 F.3d at 543-44) (“‘more is fair in electoral politics than in other contexts’”).  To establish the second element, an elected official would have to show that the adverse action in question either (i) prevented her from doing her job, (ii) deprived her of authority she enjoyed by virtue of her popular election, or (iii) otherwise prevented her from enjoying the full range of rights and prerogatives that came with being elected.  See Id. at 777 (citing Houston Cmty. Coll. Sys. v. Wilson, 598 U.S. 468, 479 (2022); Blair, 608 F.3d at 544 & n.4). 

              For a discussion of the “commonality of political purpose” inquiry that applies to First Amendment claims made by, inter alia, an appointed volunteer in public service, see Lathus v. City of Huntington Beach, 56 F.4th 1238, 1241 (9th Cir. 2023) (quoting Walker v. City of Lakewood, 272 F.3d 1114, 1132 (9th Cir. 2001). 

              If the plaintiff establishes a prima facie case of retaliation, “the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of.”  Hartman v. Moore, 547 U.S. 250, 260 (2006).  In conducting this burden-shifting analysis, courts apply the “but-for” causation standard, under which causation is “established whenever a particular outcome would not have happened but for the purported cause.”  Boquist, 32 F.4th at 778 (quoting Bostock v. Clayton Cnty., 590 U.S. 644, 656 (2020)).  “If there is a finding that retaliation was not the but-for cause of the [adverse action], the claim fails for lack of causal connection between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in the official’s mind.”  Hartman, 547 U.S. at 260.  “Conversely, if the government officials would have taken the same adverse action even in the absence of their animus or retaliatory motive arising from the plaintiff's speech, then the officials' animus was not a but-for cause of the adverse action, and there was no violation of the plaintiff’s constitutional rights.” Boquist, 32 F.4th at 778.  If state officials can show that they had “an objectively legitimate need to implement security measures in response to information conveyed by the plaintiff’s speech, and would have implemented the same security measures in the absence of any retaliatory motive . . . any unconstitutional motivation would not be a but-for cause of the officials’ action.”  Id. 

Revised March 2025

9.11A Particular Rights—First Amendment—Convicted Prisoner/Pretrial Detainee’s Claim of Retaliation

            As previously explained, the plaintiff has the burden of proving that the [act[s]] [failure to act] of the defendant deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] [other pronoun] of [his] [her] [other pronoun] rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff’s claims]. 

            Under the First Amendment, a [prisoner] [pretrial detainee] has the right to access the courts and petition the government for redress of grievances. This includes the right to [file prison grievances] [pursue civil rights litigation against prison officials] [specify particular constitutional interest]. To establish the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence: 

1.     the plaintiff was engaged in conduct protected under the First Amendment;  

2.     the defendant took adverse action against the plaintiff;  

3.     the defendant took adverse action against the plaintiff because of the plaintiff’s protected conduct;  

4.     the adverse action taken by the defendant chilled the plaintiff’s exercise of [his] [her] [other pronoun] 
        First Amendment rights; and  

5.     the action taken by the defendant did not reasonably advance a legitimate correctional goal.  

For this type of claim, adverse action is action that would chill or silence a person of ordinary firmness from engaging in that activity.  

To prevail, the plaintiff must show that [his] [her] [other pronoun] protected conduct was the substantial or motivating factor behind the defendant’s conduct. A substantial or motivating factor is a significant factor. [The chronology of events may be considered as circumstantial evidence of a causal connection between the adverse action and the plaintiff’s protected conduct.]  

Comment  

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and when the plaintiff is a convicted prisoner or a pretrial detainee.  

Allegations of retaliation against a prisoner’s First Amendment rights to speech or to petition the government may support a section 1983 claim. Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (holding that labeling a prisoner a snitch in retaliation for petitioning prison and government officials for redress of grievances states a viable claim); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (holding that prison officials could not transfer an inmate to another prison in retaliation for the inmate’s exercise of his First Amendment right). “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); accord Watison v. Carter, 668 F.3d 1108, 1114-15 (9th Cir. 2012) (identifying same elements).  

The filing of grievances and the pursuit of civil rights litigation against prison officials are both protected activities. Rhodes, 408 F.3d at 567-68; see also Blaisdell v. Frappiea, 729 F.3d 1237, 1243 (9th Cir. 2013) (“Prisoners have the right to litigate without active interference, a guarantee that exists so prisoners have a viable mechanism to remedy prison injustices.”) (internal quotation marks, brackets, and citation omitted).  

Adverse action taken against a prisoner “need not be an independent constitutional violation. The mere threat of harm can be an adverse action.” Watison, 668 F.3d at 1114 (internal brackets and citations omitted). Adverse actions include threats of discipline, transfer, or harm and do not need to be an independent constitutional violation. Brodheim v. Cry, 584 F.3d 1262, 1269-70 (9th Cir. 2009) (holding that an inmate may prevail on a First Amendment claim against an officer where the officer threatens to transfer the inmate in retaliation for persistent use of the prison grievance system); see Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (stating that a false accusation may constitute retaliation where deprivation of a benefit “was the natural and proximate result of” the false accusation and one can infer based on the facts alleged that the accuser “intended that result”).  

To establish a retaliatory motive, an inmate “must show that his protected conduct was the substantial or motivating factor behind the defendant’s conduct.” Johnson v. Ryan, 55 F.4th 1167, 1201-02 (9th Cir. 2022) (citing Brodheim, 584 F.3d at 1271). A plaintiff may offer “either direct evidence of retaliatory motive or at least one of three general types of circumstantial evidence [of that motive].”  McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon, 283 F.3d 1070, 1077 (9th Cir. 2002)). Circumstantial evidence of motive includes:  (1) proximity in time between the protected conduct and the alleged retaliation, (2) the defendant’s expressed opposition to the conduct, or (3) other evidence that the reasons proffered by the defendant for the adverse action were false and pretextual. McCollum, 647 F.3d at 882 (citing Allen, 283 F.3d at 1077). A causal connection between the adverse action and the protected conduct can be shown by a chronology of events from which retaliation can be inferred. Watison, 668 F.3d at 1114; Pratt, 65 F.3d at 808 (“[T]iming can properly be considered as circumstantial evidence of retaliatory intent.”). Mere speculation that the defendants acted out of retaliation is not sufficient. Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014).  

The plaintiff must also show that the exercise of First Amendment rights was chilled, though not necessarily silenced, by the alleged retaliatory conduct. Rhodes, 408 F.3d at 569. The plaintiff must allege either a chilling effect on future First Amendment activities, or that he suffered some other harm that is “more than minimal.” Watison, 668 F.3d at 1114 (reversing dismissal of retaliation claim and holding that “chilling effect” pleading element was satisfied where prisoner alleged “more than minimal” harm because guard refused to serve him one breakfast in retaliation for filing an inmate grievance); Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim may assert an injury no more tangible than a chilling effect on First Amendment rights.”). The plaintiff does not have to demonstrate that his speech was “actually inhibited or suppressed.” Rhodes, 408 F.3d at 569. “That the retaliatory conduct did not chill the plaintiff from suing the alleged retaliator does not defeat the retaliation claim at the motion to dismiss stage.” Watison, 668 F.3d at 1114.  

The plaintiff bears the burden of proving the absence of a legitimate correctional goal for the adverse action. Johnson, 55 F.4th at 1202 (citing Pratt, 65 F.3d at 806). With respect to this fifth factor, the Supreme Court has cautioned that “‘federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment,’ especially with regard to ‘the fine-tuning of the ordinary incidents of prison life, a common subject of prisoner claims.’” Pratt, 65 F.3d at 807 (quoting Sandin v. Conner, 515 U.S. 472, 482-83 (1995)). A plaintiff successfully pleads that the action did not reasonably advance a legitimate correctional goal by alleging, in addition to a retaliatory motive, that the defendant’s actions were “arbitrary and capricious” or that they were “unnecessary to the maintenance of order in the institution.” Watison, 668 F.3d at 1114-15. 

Added November 2024

              As previously explained, plaintiff [name] has the burden of proving that the act[s] of defendant[s] [name[s]] deprived plaintiff [name] of particular rights under the United States Constitution. In this case, plaintiff [name] alleges defendant[s] [name[s]]  deprived plaintiff [name] of rights under the Fourth Amendment to the Constitution when [insert factual basis of the plaintiff’s claim]. 

            Under the Fourth Amendment, a person has the right to be free from an unreasonable search of [his] [her] [person] [residence] [vehicle] [other object of search]. To prove defendant[s] [name[s]] deprived plaintiff [name] of this Fourth Amendment right, plaintiff [name] must prove the following additional elements by a preponderance of the evidence:

First, [Name[s] of applicable defendant[s]] searched plaintiff [name]’s [person] [residence] [vehicle]
[other object of search];

Second, in conducting the search, [name[s]] acted intentionally; and

Third, the search was unreasonable.

            A person acts “intentionally” when the person acts with a conscious objective to engage in particular conduct. Therefore, plaintiff [name] must prove defendant [name] intended to search plaintiff [name]’s [person] [residence] [vehicle] [other object of search]. It is not enough if plaintiff [name] only proves defendant [name] acted negligently, accidentally or inadvertently in conducting the search. However, plaintiff [name] does not need to prove defendant [name] intended to violate plaintiff [name]’s Fourth Amendment rights.] 

[In determining whether the search was unreasonable, consider all of the circumstances, including: 

Comment 

            Use this instruction in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and an applicable definition of an unreasonable search, such as Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest) and Instruction 9.15 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Consent). In cases in which there is no applicable definition of unreasonableness in another instruction, consider using the second bracketed paragraph of this instruction, which sets out general principles for assessing the reasonableness of a search, derived from Bell v. Wolfish, 441 U.S. 520, 559 (1979). See also Byrd v. Maricopa Cnty. Sherriff’s Dep’t, 629 F.3d 1135, 1141 (9th Cir. 2011) (en banc).

           “When the Government obtains information by physically intruding on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has undoubtedly occurred.”  United States v. Ngumezi, 980 F.3d 1285, 1289 (9th Cir. 2020) (quoting Florida v. Jardines, 569 U.S. 1, 5 (2013)); see also United States v. Dixon, 984 F.3d 814, 820 (9th Cir. 2020) (“[A] search occurs when the government ‘physically occup[ies] private property for the purpose of obtaining information.’” (quoting United States v. Jones, 565 U.S. 400, 404 (2012))); Jardines, 569 U.S. at 11-12 (holding government’s use of drug dog within curtilage of home used “to investigate the home and its immediate surroundings” was search within meaning of Fourth Amendment); Jones, 565 U.S. at 404 (holding installation of GPS device tracking device on underside of vehicle to monitor vehicle’s movements constitutes search within meaning of Fourth Amendment); Olson v. County of Grant, 127 F.4th 1193, 1998 (9th Cir. 2025) (holding that the county attorney’s review, without consent, without a warrant, and without suspicion of further criminal activity, of a cell phone extraction obtained by another state’s law enforcement agency with the plaintiff’s consent, was an unreasonable search violating the plaintiff’s Fourth Amendment rights); cf. United States v. Esqueda, 88 F.4th 818 (9th Cir. 2023) (holding that when “an officer enters a premises with express consent, and secretly uses recording equipment to capture only what he can see and hear by virtue of that consented entry, no Fourth Amendment search occurs under the trespassory, unlicensed physical intrusion framework as articulated in Jones and Jardines”).In addition to cabining physical intrusions on a constitutionally protected area, “the Fourth Amendment protects ‘certain expectations of privacy.’”  United States v. Rosenow, 50 F.4th 715, 737 (9th Cir. 2022) (quoting Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018)).  “When an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.”  Id.; see also Carpenter, 138 S. Ct. at 2220 (holding that government’s acquisition of cell-site records that provide comprehensive details of user’s past movements was search within meaning of Fourth Amendment).  For assessing a reasonable expectation of privacy in a commercial premise, see generally United States v. SDI Future Health, Inc., 568 F.3d 684, 695 (9th Cir. 2009). 

           The Fourth Amendment’s protection against unreasonable searches extends beyond criminal investigations. See Grady v. North Carolina, 575 U.S. 306, 309 (2015) (per curiam) (holding that state conducts search subject to Fourth Amendment when it attaches tracking device to recidivist sex offender’s person without consent after civil proceedings); United States v. Motley, 89 F.4th 777, 786 (9th Cir. 2023) (holding that a defendant does not have an objectively reasonable expectation of privacy in his prescription opioid records maintained in government database, given the long-standing and pervasive regulation of opioids as a controlled substance and regulatory disclosure of opioid prescription records). 

           Section 1983 “contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.” OSU Student All. v. Ray, 699 F.3d 1053, 1072 n.12 (9th Cir. 2012) (quoting Daniels v. Williams, 474 U.S. 327, 328 (1986)). It is well settled that “negligent acts do not incur constitutional liability.” Billington v. Smith, 292 F.3d 1177, 1190 (9th Cir. 2002), abrogated on other grounds by County of Los Angeles v. Mendez, 581 U.S. 420 (2017); see Ochoa v. Pub. Consulting Grp., Inc., 48 F.4th 1102, 1110 (9th Cir. 2022) (“[T]he Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.” (quoting Daniels, 474 U.S. at 328)). The question is whether the officers' actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Graham v. Connor, 490 U.S. 386, 397 (1989); United States v. Reese, 2 F.3d 870, 885-86 (9th Cir. 1993); see also Reese v. County of Sacramento, 888 F.3d 1030, 1044-45 (9th Cir. 2018). 

           With respect to the Fourth Amendment, the Supreme Court has defined a seizure as “a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original); see also Nelson v. City of Davis, 685 F.3d 867, 876-77 (9th Cir. 2012) (discussing intent and concluding that defendant officers intentionally seized plaintiff under the Fourth Amendment). The Committee assumes the same intentional mental state is required to prove a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment, although there does not appear to be any Supreme Court or Ninth Circuit decision directly on point. Thus, this instruction includes an optional definition of the term “intentionally” for use when it would be helpful to the jury. 

           “Determining the reasonableness of any search involves a two-fold inquiry: first, one must consider whether the … action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.” C.B. v. City of Sonora, 769 F.3d 1005, 1023 (9th Cir.2014) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341-42 (1985)); see also Cates v. Stroud, 976 F.3d 972, 978-84 (9th Cir. 2020) (examining search of prison visitor and holding that prior to strip search, visitor must be given opportunity to leave prison); Ortega v. O’Connor, 146 F.3d 1149, 1162-64 (9th Cir. 1998) (examining search of private office); cf. Maryland v. King, 569 U.S. 435, 448 (2013) (holding that court should weigh “the promotion of legitimate governmental interests against the degree to which [the search] intrudes upon an individual’s privacy” (alteration in original) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)) (internal quotation marks omitted)). 

           “[T]o determine whether the government exceeded the scope of a warrant, we compare the terms of the warrant to the search actually conducted.” Snitko v. United States, 90 F.4th 1250, 1263 (9th Cir. 2024) (deciding that search of contents of safe deposit boxes exceeded the terms of warrant and violated the owners’ Fourth Amendment rights). 

           When a warrantless search is conducted pursuant to a condition of probation, the court may wish to consider drafting a “totality of the circumstances” instruction. See United States v. Knights, 534 U.S. 112, 118 (2001); Smith v. City of Santa Clara, 876 F.3d 987, 992 (9th Cir. 2017). Similarly, the Supreme Court has upheld suspicionless searches of parolees based on the totality of the circumstances. Samson v. California, 547 U.S. 843, 856-57 (2006). See also United States v. Payne, 99 F.4th 495, 505 (9th Cir. 2024) (“This totality of the circumstances approach is sound, especially considering that a parole search is an exception to the warrant requirement, well-situated in broader Fourth Amendment jurisprudence.”);  United States v. Cervantes, 859 F.3d 1175, 1183 (9th Cir. 2017) (“A search of a parolee that complies with the terms of a valid search condition will usually be deemed reasonable under the Fourth Amendment.”);; United States v. Dixon, 984 F.3d 814 (9th Cir. 2020) (“[B]efore [a search] condition authorizes a warrantless search, officers must have a sufficient ‘degree of knowledge’ that the search condition applies to the place or object to be searched.”).

. 

Revised March 2025

            In general, a search of [a person] [a person’s [residence] [property]] is unreasonable under the Fourth Amendment if the search is not authorized by a search warrant.  [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.]  Under an exception to this rule, a search warrant is not required, and a search is reasonable if the search is incident to a lawful arrest. 

            [I instruct you that the arrest of the plaintiff was a lawful arrest.]  [I instruct you that the arrest of the plaintiff was a lawful arrest if [insert applicable legal standard; i.e., insert elements to show probable cause to arrest for a particular crime]]. 

            A search is “incident to” a lawful arrest if: 

             1.         it occurs roughly contemporaneously with the arrest, that is, at the same time or shortly after the arrest and without any intervening events separating the search from the arrest; and 

             2.         it is limited to a reasonable search of the person arrested and to the immediate area within which that person might gain possession of a weapon or might destroy or hide evidence at the time of the search. 

             In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply; that is, that the search was not incident to a lawful arrest. 

 Comment 

             Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8 and in conjunction with Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally).  When the search incident to arrest involves a vehicle, refer to Instruction 9.14 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search of Vehicle Incident to Arrest of a Recent Occupant). 

             “A search incident to a lawful arrest is an exception to the general rule that warrantless searches violate the Fourth Amendment.”  United States v. Camou, 773 F.3d 932, 937 (9th Cir. 2014); see Arizona v. Gant, 556 U.S. 332, 338 (2009).  There are two general requirements of a valid search incident to an arrest.  Camou, 773 F.3d at 937-38 (“The determination of the validity of a search incident to arrest in this circuit is a two-fold inquiry: (1) was the searched item ‘within the arrestee’s immediate control when he was arrested’; [and] (2) did ‘events occurring after the arrest but before the search ma[k]e the search unreasonable’?” (second alteration in original) (quoting United States v. Maddox, 614 F.3d 1046, 1048 (9th Cir. 2010)). 

             The first requirement is that the search must be “limited to the arrestee’s person or areas in the arrestee’s ‘immediate control’ at the time of arrest.”  Id. at 937 (quoting Gant, 556 U.S. at 339).  “Immediate control” means “the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.”  Gant, 556 U.S. at 335 (quoting Chimel v. California, 395 U.S. 752, 763 (1969)).  “Those areas include the arrestee’s person and the inside pockets of the arrestee’s clothing.”  United States v. Williams, 846 F.3d 303, 312 (9th Cir. 2016) (citing United States v. Robinson, 414 U.S. 218, 224-25 (1973)).  But those areas do not “extend to ‘a strip search or bodily intrusion.’”  Fuller v. M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991) (quoting Giles v. Ackerman, 746 F.2d 614, 616 (9th Cir. 1984)). 

             The second requirement is that the search must be “spatially and temporally incident to the arrest,” and, to satisfy the temporal requirement, must be “roughly contemporaneous with the arrest.”  Camou, 773 F.3d at 937 (quoting United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004) (per curiam)) (holding border patrol agent’s search of arrestee’s cell phone 80 minutes after arrest not roughly contemporaneous with arrest).  A search remote in time or place from the arrest is not justified.  Id. (quoting United States v. Chadwick, 433 U.S. 1, 15 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 580 (1991)).  Further, “[m]ere temporal or spatial proximity of the search to the arrest does not justify a search; some threat or exigency must be present to justify the delay.”  Maddox, 614 F.3d at 1049 (holding that after arrestee was secured in patrol car, search of keychain that was within arrestee’s “immediate control” at the time of the arrest but subsequently tossed into arrestee’s car was invalid under search-incident-to-arrest exception because, at the time of the search, arrestee was “incapable of either destroying [the keychain] or presenting any threat to the arresting officer”). 

             An actual arrest is a prerequisite for this exception to the warrant requirement.  Menotti v. City of Seattle, 409 F.3d 1113, 1153 (9th Cir. 2005) (holding probable cause to make arrest insufficient to trigger exception in absence of actual arrest). 

             If the court is able to determine as a matter of law that an arrest was lawful, the Committee recommends the court instruct the jury accordingly.  However, when there are factual disputes about the lawfulness of an arrest, it will be necessary for the court to instruct the jury concerning the standards or elements for a lawful arrest under the facts of a particular case.  See Instruction 9.23 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Probable Cause Arrest). 

             The United States Supreme Court has held that officers may perform a warrantless breath test as a search incident to arrest, but may not perform a warrantless blood test as a search incident to arrest.  Birchfield v. North Dakota, 579 U.S. 438, 474 (2016). The Court held that a breath test incident to a drunk driving arrest is categorically included within the search-incident-to-arrest exception.  Id. at 2176, 2179-80, 2183.           

            In Riley v. California, 573 U.S. 373 (2014), the Court considered the search-incident-to-arrest exception as it pertained to cell phones.  The Court held that the phone itself may be searched incident to an arrest, but officers must generally secure a search warrant before conducting a search of the data stored on the cell phone.  Id. at 401, 403; Olson v. County of Grant, 127 F.4th 1193, 1999 (9th Cir. 2025) (extending Riley to a phone extraction or a “phone dump” which is typically an exact replica of the data contained on a cell phone at the time of the extraction, easily searchable and reviewable by law enforcement); but see United States v. Payne, 99 F.4th 495, 507 (9th Cir. 2024) (declining to extend Riley to cell phone data belonging to parolees).             

A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply.  Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994);  see Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship);  Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”).           

Revised March 2025

            In general, a search of a person’s vehicle is unreasonable under the Fourth Amendment if the search is not authorized by a search warrant.  [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.]  Under an exception to this rule, a search warrant is not required, and a search is reasonable if the search of the vehicle is incident to a lawful arrest. 

            [I instruct you that the arrest of the plaintiff was a lawful arrest.] [I instruct you that the arrest of the plaintiff was a lawful arrest if [insert applicable legal standard, i.e., insert elements to show probable cause to arrest for a particular crime]]. 

            A search of a vehicle [specify area searched] is “incident to” the arrest of a recent occupant of the vehicle only if: 

1.         The person is arrested but is not securely in police custody and the [specify area searched] is “within the reaching distance” of the person arrested; or

2.         It is reasonable to believe the vehicle contains evidence of the offense that is the subject of the arrest. 

            In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply— that is, that the search of the vehicle was not incident to a lawful arrest. 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8, and in conjunction with Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally). 

            “A search incident to a lawful arrest is an exception to the general rule that warrantless searches violate the Fourth Amendment.”  United States v. Camou, 773 F.3d 932, 937 (9th Cir. 2014); see Arizona v. Gant, 556 U.S. 332, 338 (2009).  For a discussion of the search incident to a lawful arrest exception generally, see Comment to Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest).

             In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court held that an officer can search the passenger compartment of a vehicle when the officer has made a lawful custodial arrest of its recent occupant, so long as the passenger compartment of the vehicle is within reaching distance of the arrestee.  Id. at 460 (holding also that the officer may search containers in the passenger compartment because “if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach”).

            In Arizona v. Gant, 556 U.S. 332, 335 (2009), the Supreme Court narrowed the search-incident-to-arrest exception as applied to vehicle searches in Belton.  Id. at 335.  Gant held that a warrantless search of a vehicle, incident to the arrest of a driver or recent occupant, is constitutionally permissible only if: (1) the arrestee is within reaching distance of the passenger compartment at the time of the search, or (2) it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Id. at 351.  Thus, when the arrestee is secured by police, and there is no reason to believe the vehicle contains relevant evidence, officers may not rely on the search-incident-to-arrest exception to justify the search of a vehicle.  Id. at 335 (“Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.”).

             If the court is able to determine as a matter of law that an arrest was lawful, the Committee recommends the court instruct the jury accordingly.  When, however, there are factual disputes about the lawfulness of an arrest, it will be necessary for the court to instruct the jury concerning the standards or elements for a lawful arrest under the facts of a particular case. See Instruction 9.23 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Probable Cause Arrest).  The plaintiff may not always be the same person who was the subject of the arrest giving rise to the search.  See e.g., Rakas v. Illinois, 439 U.S. 128, 134 (1978).  In such cases, the instruction should be altered as appropriate.

             A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply.  Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994);  see Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship);  Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”). 

            Revised Dec. 2023

            In general, a search of a [person] [residence] [vehicle] [property] is unreasonable under the Fourth Amendment if the search is not authorized by a search warrant.  [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.] Under an exception to this rule, a search warrant is not required, and a search is reasonable if [the person] [a person in lawful possession of the area to be searched] knowingly and voluntarily consents to the search [and there is not any express refusal to consent by another person who is physically present and also in lawful possession of the area to be searched]. 

            In determining whether a consent to search is voluntary, consider all of the circumstances, including: 

(1)       whether the consenting person was in custody; 

(2)       whether the officers’ guns were drawn; 

(3)       whether Miranda warnings were given; 

(4)       whether the consenting person was told [he] [she] had the right to refuse a request to search; 

(5)       whether the consenting person was told a search warrant could be obtained; 

(6)       [any other circumstances applicable to the particular case]. 

            Miranda warnings consist of advising a criminal suspect that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. 

            In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply. 

 Comment 

             Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8 and in conjunction with Instruction 9.12 (Particular Rights—Fourth Amendment —Unreasonable Search—Generally). 

             It is a well-settled exception to the warrant requirement that an “individual may waive his Fourth Amendment rights by giving voluntary and intelligent consent to a warrantless search of his person, property, or premises.”  United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir. 2000); seealso Ohio v. Robinette, 519 U.S. 33, 39-40 (1996).  Whether a consent to search was voluntarily given is a question of fact to be determined from the “totality of all the circumstances.” United States v. Taylor, 60 F.4th 1233, 1243 (9th Cir. 2023) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).  The Ninth Circuit considers five factors in determining voluntariness, which have been incorporated into the above instruction. See, e.g., Liberal v. Estrada, 632 F.3d 1064, 1082 (9th Cir. 2011) (applying five-factor test for voluntariness in § 1983 case).  “No one factor is determinative in the equation” and “[b]ecause each factual situation surrounding consent to a search is unique,” a court may also consider other relevant factors. Id.;United States v. Taylor, 60 F.4th 1233, 1243 (9th Cir. 2023) (rejecting argument that “racial disparities in the policing of America” invalidated consent, court noted tensions between officers and suspects “may be heightened by personal experiences and other sociocultural factors,” but there was no evidence in this case that race affected voluntariness of consent); Olson v. County of Grant, 127 F.4th 1193, 1200 (9th Cir. 2025) (holding that a plaintiff’s consent allowing Idaho law enforcement to search plaintiff’s cell phone did not extend to a search by a different law enforcement agency, in Oregon, for evidence of her boyfriend’s theoretical misdeeds in Oregon). 

             In Georgia v. Randolph, 547 U.S. 103, 106 (2006),  the Supreme Court reiterated this rule:  “The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.”  The Court, however, also held that, as between a wife’s consent to a search of the family residence and her husband’s refusal to consent, “a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.”  Id.; see also Bonivert v. City of Clarkston, 883 F.3d 865, 875 (9th Cir. 2018) (“Applying Randolph, we hold that the consent exception to the warrant requirement did not justify the officers’ entry into Bonivert’s home.  Even though the officers secured [co-occupant] Ausman’s consent, Bonivert was physically present inside and expressly refused to permit the officers to enter on two different occasions” (emphasis added)).  The Ninth Circuit clarified that “Randolph requires that the resident who is refusing consent both be present at the house and expressly refuse to allow the search.”  United States v. Moore, 770 F.3d 809, 811 (9th Cir. 2014).  In addition, the Supreme Court has clarified that Randolph does not apply when the objecting occupant has been removed and is no longer physically present, including removal through a lawful arrest.  Fernandez v. California, 571 U.S. 292, 302-03 (2014) (upholding warrantless search of apartment when consent later obtained from co-occupant after initially objecting occupant arrested on suspicion of assaulting co-occupant); United States v. Parkins, 92 F.4th 882, 890-91 (9th Cir. 2024) (explaining that a defendant need not stand at the doorway to count as being physically present—presence on the premises (including its immediate vicinity) is sufficient); see also United States v. Brown, 563 F.3d 410, 416-18 (9th Cir. 2009) (finding voluntary consent from co-occupant of residence when defendant had been arrested pursuant to valid arrest warrant and placed in squad car prior to consent discussion with co-occupant).  

             Randolph’s exception to the consent rule for third parties does not apply when the “consent” consists of a probationer’s search condition. That scenario requires an examination of whether a warrantless search “was reasonable under the Court’s general Fourth Amendment approach of ‘examining the totality of the circumstances,’ with the probation search condition being a salient circumstance.”  Smith v. City of Santa Clara, 876 F.3d 987, 992 (9th Cir. 2017) (internal quotation marks and brackets omitted) (quoting United States v. Knights, 534 U.S. 112, 118 (2001) (rejecting jury instruction framed in terms of consent based on warrantless probation search condition)). 

             Whether an individual was told he or she was “free to leave” may implicate both the first factor—whether the individual was in custody—and the fourth factor—whether he or she was informed he or she could refuse consent.  See, e.g., United States v. Russell, 664 F.3d 1279, 1281 (9th Cir. 2012) (noting that officer’s instruction that individual is free to leave is “an instructive, but certainly less clear, way of saying that consent could be refused”); United States v. Bassignani, 575 F.3d 879, 886 (9th Cir. 2009) (noting that officer’s instruction that individual is free to leave is important consideration in determining whether individual is in custody); but see United States v. Stephens, 206 F.3d 914, 917 (9th Cir. 2000) (noting that, when searching bus passengers, “free to leave” warning is inadequate to ensure voluntariness). 

             Under certain circumstances, a third party may have actual or apparent authority to give consent to the search of another’s property.  Espinosa v. City & Cnty. of San Francisco, 598 F.3d 528, 536 (9th Cir. 2010) (citing United States v. Ruiz, 428 F.3d 877, 880-81 (9th Cir. 2005)) (stating three-part test to determine apparent authority of third person).  When authority to consent is factually disputed, it may be necessary to instruct the jury on these standards. 

             Relatedly, the “knock and talk” exception, which allows officers to approach a home and knock on the door, does not apply when the officers’ purpose in conducting the “knock and talk” is to arrest the occupant.  United States v. Lundin, 817 F.3d 1151, 1160 (9th Cir. 2016). 

             A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply.  Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994);  see Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship);  Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”). 

             When “an officer enters a premises with express consent, and secretly uses recording equipment to capture only what he can see and hear by virtue of that consented entry, no Fourth Amendment search occurs under the trespassory, unlicensed physical intrusion framework.” United States v. Esqueda,88 F.4th 818 (9th Cir. 2023). Although no search occurs when an undercover government agent misrepresents his identity to gain consent to enter, id. at 825, 830, a Fourth Amendment search does occur when “a known government agent affirmatively misrepresents his purpose to gain consent to enter,” id. at 826 n.4 (emphasis in original) (citing Whalen v. McMullen, 907 F.3d 1139, 1147-48 (9th Cir. 2018)).

Revised March 2025

           In general, a search of a [person] [residence] [vehicle] [property] is unreasonable under the Fourth Amendment if the search is not conducted pursuant to a search warrant.  [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.]  Under an exception to this rule, a search warrant is not required, and a search is reasonable if: 

1.         all of the circumstances known to the officer[s] at the time of the entry or the search would cause a reasonable person to believe that the entry or the search of the [person] [residence] [vehicle] [property] was necessary to prevent [destruction of evidence] [escape of a suspect] [physical harm to the officers or other persons] or [some other consequence improperly frustrating legitimate law enforcement efforts];  

2.         at the time the officer made the entry or the search, the officer had probable cause to believe that a crime had been or was being committed; and 

3.         there was insufficient time to get a search warrant.  

            “Probable cause” exists when, under all of the circumstances known to the officer[s] at the time, an objectively reasonable police officer would conclude there is a fair probability that the plaintiff has committed or was committing a crime. 

            In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply. 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8 and in conjunction with Instruction 9.12 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally). 

            It is a well-settled exception to the warrant requirement that “exigent circumstances” can justify a warrantless search consistent with the Fourth Amendment.  See Missouri v. McNeely, 569 U.S. 141, 148-49 (2013) (discussing various “circumstances [that] may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of a home, engage in ‘hot pursuit’ of a fleeing suspect, or enter a burning building to put out a fire and investigate its cause” (citations omitted)); see also Fisher v. City of San Jose, 558 F.3d 1069, 1076-78 (9th Cir. 2009) (en banc) (discussing exigent circumstances exception to warrant requirement in context of hours-long police standoff) This exception has two requirements: “(1) that the officer had probable cause to search or arrest; and (2) that exigent circumstances justified the warrantless intrusion.”  Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1221 (9th Cir. 2014), rev’d in part on other grounds, 575 U.S. 600 (2015) (citing Hopkins v. Bonvicino, 573 F.3d 752, 766-67 (9th Cir. 2009)).  The Ninth Circuit generally defines “exigent circumstances as those circumstances that would cause a reasonable person to believe that entry . . . was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.”  United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005). 

             However, officers cannot create the exigency themselves by engaging in conduct that violates the Fourth Amendment.  See United States v. Lundin, 817 F.3d 1151, 1158 (9th Cir. 2016) (citing Kentucky v. King, 563 U.S. 452, 462 (2011)) (holding that officers unlawfully created exigency when (1) their knock caused suspect to make crashing noises inside home that were basis for exigency, and (2) officers were unlawfully standing on curtilage of suspect’s home because it was three a.m. and their only purpose was to arrest defendant). 

             The Ninth Circuit has explained that the exigency exception “stems from police officers’ investigatory function [and] allows an officer to enter a residence without a warrant if he has probable cause to believe that a crime has been or is being committed and a reasonable belief that [his] entry is needed to stop the destruction of evidence or a suspect’s escape or carry out other crime-prevention or law enforcement efforts.”  Espinosa v. City & County of San Francisco, 598 F.3d 528, 534 (9th Cir. 2010) (second alteration in original) (quoting Hopkins v. Bonvicino, 573 F.3d 752, 763 (9th Cir. 2009) (internal quotation marks omitted)).  Furthermore, whether a law enforcement officer faced an exigency “must be viewed from the totality of the circumstances known to the officers at the time of the warrantless intrusion.” Id. at 535 (quoting United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985)); seeMcNeely, 569 U.S. at 149 (“To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances.”). 

             The exigency exception may of course be invoked when police are in hot pursuit of a fleeing suspect. SeeMcNeely, 569 U.S. at 149; Fisher, 558 F.3d at 1082.  It should also be noted, however, that exigent circumstances will rarely justify entry without a warrant while in hot pursuit of a fleeing misdemeanant.  See Stanton v. Sims, 134 S. Ct. 3, 6-7, 9 (2013) (finding officer entitled to qualified immunity, yet emphasizing that prior Court precedent “held not that warrantless entry to arrest a misdemeanant is never justified, but only that such entry should be rare”); see also Lange v. California, 141 S. Ct. 2011, 2020 (2021) (“This Court has held that when a minor offense alone is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry.”). 

             The Supreme Court has also ruled that the natural dissipation of alcohol in the blood does not establish a per se exigency, and that “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.”  McNeely, 569 U.S. at 156; cf. Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search Incident to Arrest). 

             Whether officers rely upon the emergency aid or exigent circumstances exceptions to the Fourth Amendment’s general warrant requirement, they are required to conduct the search or seizure in a reasonable manner, including use of reasonable force.  Sheehan, 743 F.3d at 1222 (applying Supreme Court’s excessive force standard under Fourth Amendment to both emergency aid and exigency exceptions).  To assess whether the force used was reasonable, see Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force). 

             A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply.  Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994);  see Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship);  Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”). 

Revised Dec. 2023

            In general, a search of a [person] [residence] [vehicle] [property] is unreasonable under the Fourth Amendment if the search is not conducted pursuant to a search warrant.  [A “search warrant” is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.]  Under an exception to this rule, a search warrant is not required, and a search is reasonable if, under all of the circumstances: 

1.         the police officer[s] had objectively reasonable grounds at the time of the entry or the search to believe that there was an emergency at hand and there was an immediate need to protect others or themselves from serious harm; and 

2.         the search’s scope and manner were reasonable to meet the need. 

            In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply. 

Comment 

            Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8. 

            The Supreme Court has consistently recognized an emergency aid exception to the warrant requirement, which allows law enforcement officers to “enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.”  United States v. Snipe, 515 F.3d 947, 951 (9th Cir. 2008) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)); see also Bonivert v. City of Clarkston, 883 F.3d 865, 877 (9th Cir. 2018) (noting that “the emergency exception is ‘narrow’ and ‘rigorously guarded’”).  

            The emergency doctrine recognizes that police function as community caretakers in addition to their roles as criminal investigators and law enforcers.  Espinosa v. City & County of San Francisco, 598 F.3d 528, 534 (9th Cir. 2010).   

            As the Ninth Circuit has clarified, this exception has two requirements: “(1) considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and (2) the search’s scope and manner were reasonable to meet the need.”  Sheehan v. City & County of San Francisco, 743 F.3d 1211, 1221 (9th Cir. 2014), rev’d in part on other grounds, 575 U.S. 600 (2015) (quoting Snipe, 515 F.3d at 952); see also Hopkins v. Bonvicino, 573 F.3d 752, 763-66 (9th Cir. 2009) (explaining difference between emergency and related exigency exceptions).

             Whether officers rely on the emergency aid or exigent circumstances exception to the Fourth Amendment’s general warrant requirement, they are required to conduct the search or seizure in a reasonable manner, including use of reasonable force.  Sheehan, 743 F.3d at 1222 (applying Supreme Court’s excessive force standard under Fourth Amendment to both emergency aid and exigency exceptions). To assess whether the force used was reasonable, see Instruction 9.25 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Excessive Force). 

            A plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden of proving at trial that an asserted exception to the warrant requirement did not apply.  Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir. 1994);  see Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir. 2012) (placing burden on plaintiff to establish absence of imminent danger in claim of interference with parent-child relationship);  Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir. 2002) (reaffirming that plaintiff in § 1983 action “carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]”).

Revised Dec. 2023

            As previously explained, the plaintiff has the burden of proving that the act[s] of the defendant[s] [insert name[s] of defendant[s]] deprived the plaintiff of particular rights under the United States Constitution.  In this case, the plaintiff alleges the defendant[s] deprived the plaintiff of rights under the Fourth Amendment to the Constitution when the defendant[s] intentionally or in reckless disregard of the truth made one or more material misrepresentations or omissions in a search warrant affidavit submitted to a judge. 

            Under the Fourth Amendment, a person has the right to be free from an unreasonable search of [the person's  [person] [residence] [vehicle] [insert other object of search].  In general, a search of a [person] [residence] [vehicle] [insert other object of search] is unreasonable under the Fourth Amendment if the search is not conducted pursuant to a search warrant.  A search warrant is a written order signed by a judge that permits a law enforcement officer to search a particular location and seize specific items.  To obtain a search warrant, a law enforcement officer must show probable cause that a crime has been committed and that items related to that crime are likely to be found in the place specified in the warrant. In deciding whether to issue a search warrant, a judge generally relies on the facts stated in a warrant affidavit signed by a law enforcement officer. 

            To prove the defendant[s] deprived the plaintiff of this Fourth Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence: 

1.         the defendant[s] submitted to a judge a warrant affidavit that contained one or more misrepresentations or omissions material to the finding of probable cause; and 

2.         the defendant[s] made those misrepresentations or omissions either intentionally or with reckless disregard for the truth. 

            To show materiality in the context of this claim, the plaintiff must demonstrate that the judge would not have issued the warrant if the false information had been excluded (or redacted) or if the omitted or missing information had been included (or restored).

            “Probable cause” exists when, under all of the circumstances known to the officers at the time, an objectively reasonable police officer would conclude there is a fair probability that contraband or evidence of a crime will be found in the place to be searched; a fair probability that the item to be seized is contraband or evidence of a crime; or a fair probability that the person to be seized has committed or was committing a crime. 

            In the context of this claim, a “reckless disregard for the truth” means highly unreasonable conduct that is an extreme departure from ordinary care, presenting a danger of misleading a reasonable judge into concluding that probable cause has been established, when that danger is either known to the defendant[s] or is so obvious that the defendant[s] must have been aware of it. 

Comment 

            Use this instruction only in conjunction with the applicable elements instruction from Instructions 9.3–9.8.