Benigni v. City of Hemet

• Decision Date: 15 August 1988
• Docket Number: No. 87-5622,87-5622
• Citation: 853 F.2d 1519
• Parties: Remo BENIGNI, dba The Silver Fox, Plaintiff-Appellee, v. CITY OF HEMET; Roger Miller; Jesse Pease; Scott Jernigan, Defendants- Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1519

853 F.2d 1519

Remo BENIGNI, dba The Silver Fox, Plaintiff-Appellee, v. CITY OF HEMET; Roger Miller; Jesse Pease; Scott Jernigan,

Defendants- Appellants.

No. 87-5622.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1988.

Decided Aug. 15, 1988.

Christopher Lockwood, Mac Lachlan, Burford & Arias, San Bernardino, Cal., for defendants-appellants.

Michael J. Cisarik, Orange, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before TANG, BOOCHEVER and NORRIS, Circuit Judges.

TANG, Circuit Judge:

The City of Hemet and individual police officers appeal a jury verdict for Benigni in his section 1983 suit alleging that police officers harassed his business to such an extent that he was finally forced to sell it at a loss. We affirm.

BACKGROUND

Benigni opened the Silver Fox Restaurant and Bar in November 1983. He filed suit on December 7, 1984, alleging that Benigni's section 1983 suit alleged violations of his first amendment right of association, his fourth amendment right against unreasonable search and seizure, and his fourteenth amendment rights to due process and equal protection. A jury awarded Benigni compensatory damages of $285,000 against the City, compensatory damages of $7,500 and punitive damages of $7,500 against Chief of Police Roger Miller, and compensatory damages of $2,500 and punitive damages of $3,000 against police officer Jesse Pease. The jury found in favor of officer Jernigan and he appeals the district court's denial of attorney fees. The City argues that the verdict is not supported by substantial evidence and that the case was improperly submitted to the jury on non-applicable legal theories.

Hemet police officers constantly harassed his business and customers by: (1) performing bar checks on a daily basis; (2) following customers leaving the Silver Fox and occasionally arresting them for drunk driving and other violations; (3) issuing parking tickets to staff and customers; (4) parking across the street and "staking out" his customers, employees and family members; (5) stopping cars for traffic violations in the vicinity of the Silver Fox after "herding" or "red lighting" them into that area; and (6) investigating an alleged bomb threat on December 8, 1984, the day after Benigni filed suit. Benigni claimed the officers made five or six bar checks a night inside the business and that they shined flashlights in customers' faces, checked identifications of people obviously over 21, and searched drawers behind the bar. Benigni contends this harassment eventually forced him to sell at a loss in March 1986.

DISCUSSION

I. THEORIES OF LIABILITY

As a preliminary matter we must consider whether the City has preserved its legal challenges for review on this appeal. The City has not met the requirement of Fed.R.Civ.P. 51, which says "[n]o 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." This court has held that Rule 51 is satisfied even where the plaintiff does not object to instructions when plaintiff proposes alternative instructions and the district court is aware that plaintiff does not agree with the court's instructions. Martinelli v. City of Beaumont, 820 F.2d 1491, 1493-94 (9th Cir.1987); Brown v. Avemco Investment Corp., 603 F.2d 1367, 1371 (9th Cir.1979).

In this case the City proposed alternative jury instructions but the record indicates that the trial court was not made aware of any specific concern with the proposed instructions. See Martinelli, 820 F.2d at 1493; Robert's Waikiki U-Drive v. Budget Rent-A-Car, 732 F.2d 1403, 1410 (9th Cir.1984). No specific objection or argument focused the issue before the court or gave it an opportunity to modify the instruction to incorporate the elements of the City's proposed instructions. See Budget Rent-A-Car, 732 F.2d at 1410. The purpose of Rule 51 is to give the trial court the opportunity to correct potential error, id., and the trial court had no such opportunity here. Thus we do not agree with the City that this is a situation in which we should review instructions in the absence of a clear objection.

The Supreme Court's recent decision in City of St. Louis v. Praprotnik, --- U.S. ----, 108 S.Ct. 915, 922, 99 L.Ed.2d 107 (1988), does not mandate a different result. In Praprotnik the Court held that in a section 1983 case legal issues are preserved for review even in the absence of objection to jury instructions when the petitioner has moved for summary judgment and directed verdict, advancing the same legal argument being advocated in the reviewing court. Id. In this case, the appellants moved for summary judgment, the individual appellants moved for a directed verdict on the ground of their asserted immunity, and all appellants moved for judgment NOV or for new trial. The memoranda in support of the motions for summary judgment and judgment NOV argued that Benigni's claims that his federal rights were infringed were unsupported by the evidence. These motions thus are not sufficient to raise objection to the jury instructions or to preserve any objections for review on appeal. Thus we will not address the adequacy of the district court's instructions.

II. SUFFICIENCY OF THE EVIDENCE

We will consider whether there is evidence supporting the verdict sufficient to justify submitting the various theories of liability to the jury. First, we note that our review is "extraordinarily deferential" because of the City's failure to move for a directed verdict on the liability issues at the close of all the evidence. ¹ Herrington v. Sonoma County, 834 F.2d 1488, 1501 (9th Cir.1987). "It is thoroughly established that the sufficiency of the evidence is not reviewable on appeal unless a motion for a directed verdict was made in trial court." United States v. 33.5 Acres of Land, 789 F.2d 1396, 1400 (9th Cir.1986) (quoting Trans World Airlines, Inc. v. Shirley, 295 F.2d 678, 678-79 (9th Cir.1961)); C. Wright & A. Miller, 9 Federal Practice and Procedure Sec. 2536 at 593 (1971).

Because the City is precluded from challenging the sufficiency of the evidence, our " 'inquiry is limited to whether there was any evidence to support the jury's verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a "manifest miscarriage of justice." ' " Herrington, 834 F.2d at 1500 (quoting Shipman v. Central Gulf Lines, Inc., 709 F.2d 383, 386 (5th Cir.1983) (quoting Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978))). We review liability findings to determine whether there is an absolute lack of evidence supporting the verdict. Id.

(1) First Amendment Claim

Recently the Supreme Court reiterated that its cases have protected associational freedom in two senses: (1) holding that the Constitution protects against interference with an individual's choice to enter into and maintain certain intimate or private relationships; and (2) holding that the Constitution protects the freedom of "individuals to associate for the purpose of engaging in protected speech or religious activities." Board of Directors of Rotary International v. Rotary Club, --- U.S. ----, 107 S.Ct. 1940, 1945, 95 L.Ed.2d 474 (1987). Implicit in the right to engage in first amendment activities is the corresponding right to associate with others "in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462 (1984). This court has said that social associations, to the extent that they are expressive, are not excluded from the safeguards of the first amendment. IDK, Inc. v. Clark County, 836 F.2d 1185, 1194 (9th Cir.1988). Benigni claims that the City's actions violated his right of association in both senses identified by the Supreme Court because the harassment interfered with his family relations and because it discouraged friends and patrons from frequenting the Silver Fox, thereby interfering with his social relations. Although the function of the Silver Fox is primarily commercial, Benigni does not thereby lose the protection of the first amendment, IDK, 836 F.2d at 1194, and we cannot say that there was clear error in submitting this theory to the jury.

(2) Fourth Amendment Claim

The court instructed the jury that there is a "constitutional right not to be subjected to unlawful search or seizure." The court also read the text of Cal.Bus. & Prof.Code Sec. 25755, which authorizes inspection of premises where alcoholic beverages are sold.

The evidence presented at trial indicates that police officers checked the Silver Fox as often as five or six times per evening, that officers went behind the bar, searched in drawers, shined flashlights in patrons' faces, requested identification of persons obviously over 21, and walked through the bar with their hands on their guns. The verdict for the plaintiff reflects a determination that the bar checks in this case were unreasonable because of the manner in which they were performed and their frequency. Clearly this theory of liability was correctly submitted to the jury, and there is evidence to support the verdict.

(3) Equal Protection Claim

An equal protection claim based on selective law enforcement activities is judged according to ordinary standards and the plaintiff must show both a discriminatory effect and a discriminatory motivation. Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985). We disagree with the City that the equal protection issue should not have gone to the jury. The elements of an intentional discrimination claim are present in this case because the evidence was sufficient to show the discriminatory...