McGrath v. Spirito

Citation733 F.2d 967
Decision Date02 May 1984
Docket NumberNo. 83-1929,83-1929
PartiesMarion McGRATH, Plaintiff, Appellee, v. Carlo SPIRITO, Jr., etc., Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

John D. Biafore, Providence, R.I., for defendant, appellant.

Joseph L. DeCaporale, Jr., Providence, R.I., for plaintiff, appellee.

Before BOWNES, ALDRICH and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Defendant-appellant Carlo Spirito, Jr., appeals a jury verdict in a section 1983 civil rights action finding that, as Chairman of the Cranston, Rhode Island City Council, he had violated plaintiff-appellee Marion McGrath's first amendment right of freedom of speech.

Section 307 of the Charter of Cranston provides in pertinent part:

All meetings of the council and its committees shall be open to the public. Under such reasonable rules as may be adopted by the council for the preservation of order and decorum and the efficient conduct of its business, opportunity shall be given at all regular meetings, as well as at scheduled hearings, for citizens to be heard on matters within the authority of the council ....

Rule 29G of the Cranston City Council provides:

The chair shall enforce order and decorum among the persons outside the rail, and any person addressing the Council or a Committee thereof shall confine his remarks to the matter under consideration and shall avoid personalities.

The issue to be decided by the jury was whether Spirito in his capacity as Chairman of the City Council was acting pursuant to Rule 29G or trying to control the content of McGrath's speech by ordering her ejected from a City Council meeting before she had finished speaking.

Appellant raises two issues on appeal: that the district court erred in its instruction to the jury relative to the interplay of plaintiff's first amendment rights and defendant's authority under Rule 29G; and that the district court erred in failing to make a preliminary determination of the constitutionality of Rule 29G.

Appellant's jury instruction objection was lost because he failed to follow the requirements of Federal Rule of Civil Procedure 51:

Rule 51. Instructions to Jury: Objection

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. [Emphasis added.]

We have held that the rule requires that the objection to jury instructions be made after the charge, not before. Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 (1st Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct. 445, 46 L.Ed.2d 385 (1975). The reason for requiring that objections to instructions be made after the charge and that they state distinctly the matter to which a party objects and the grounds of the objection is to give the trial judge an opportunity to correct any errors before it is too late. Gay v. P.K. Lindsay Co., Inc., 666 F.2d 710, 712 (1st Cir.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2240, 72 L.Ed.2d 849 (1982).

The record makes it clear that no objection was made by appellant after the charge. The court stated, "I will preserve any objections you have at this point on the instructions. Anything further?" Defense counsel responded, "No." A trial court's statement after the charge that objections made prior to it will be saved does not absolve an attorney from following the strictures of the rule. Objections cannot be carried forward. The rule is binding on both the court and attorneys and neither can circumvent it. In the exercise of our discretion we may, in compelling circumstances, overlook failure to comply with the rule, "but a party takes his chances and cannot rely on an assurance by the district court that his rights are saved." Carrillo v. Sameit Westbulk, 514 F.2d at 1219.

There is no reason here to overlook appellant's failure to follow the rule. It is true that prior to the charge there was a general discussion of the proposed instructions and defense cou...

To continue reading

Request your trial
30 cases
  • CVD, Inc. v. Raytheon Co.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 23 Septiembre 1985
    ...Inc., 738 F.2d 48, 51 (1st Cir.1984). See Ouimette v. E.F. Hutton & Co., Inc., 740 F.2d 72, 75-76 (1st Cir.1984); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984). Reading a list of the numbers of the requested instructions is not sufficient to preserve an objection under Rule 51. Se......
  • Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors
    • United States
    • U.S. Court of Appeals — First Circuit
    • 1 Febrero 1988
    ...26 (1st Cir.1986); Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat'l Bank, 757 F.2d 399, 411 (1st Cir.1985); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984); Monomoy Fisheries, Inc. v. Bruno & Stillman Yacht Co., 625 F.2d 1034, 1036 (1st Cir.1980); Carrillo v. Sameit Westbulk, ......
  • CMM Cable Rep, Inc. v. Ocean Coast Properties, Inc.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 5 Febrero 1996
    ...that failure to raise an objection subsequent to the actual charge constitutes waiver under Fed.R.Civ.P. 51); McGrath v. Spirito, 733 F.2d 967, 968 (1st Cir.1984) ("We have held that the rule requires that the objection to jury instructions be made after the charge, not before."). Thus, WPO......
  • Wartski v. Bedford
    • United States
    • U.S. Court of Appeals — First Circuit
    • 7 Noviembre 1990
    ...26 (1st Cir.1986); Emery-Waterhouse Co. v. Rhode Island Hosp. Trust Nat'l Bank, 757 F.2d 399, 411 (1st Cir.1985); McGrath v. Spirito, 733 F.2d 967, 968-69 (1st Cir.1984); Monomoy Fisheries, Inc. v. Bruno & Stillman Yacht Co., 625 F.2d 1034, 1036 (1st Cir.1980); Carrillo v. Sameit Westbulk, ......
  • Request a trial to view additional results
1 books & journal articles
  • Trial of sexual harassment case
    • United States
    • James Publishing Practical Law Books Litigating Sexual Harassment & Sex Discrimination Cases Trial and post-trial proceedings
    • 6 Mayo 2022
    ...the grounds of the objection is to give the trial judge an opportunity to correct any errors before it is too late. McGrath v. Spirito , 733 F.2d 967, 968 (1st Cir. 1984) (citations omitted emphasis in original). See also Granite Music Corp. v. United Artists Corp. , 532 F.2d 718, 721–22 (9......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT