879 F.2d 473 (9th Cir. 1988), 87-5622, Benigni v. City of Hemet

Docket Nº:87-5622.
Citation:879 F.2d 473
Party Name:Remo BENIGNI, dba The Silver Fox, Plaintiff-Appellee, v. CITY OF HEMET; Roger Miller; Jesse Pease; Scott Jernigan, Defendants-Appellants.
Case Date:August 15, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 473

879 F.2d 473 (9th Cir. 1988)

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

August 15, 1988

Argued and Submitted Jan. 7, 1988.

As Amended Feb. 14, 1989.

As Amended June 15, 1989.

Page 474

[Copyrighted Material Omitted]

Page 475

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

Michael J. Cisarik, Santa Ana, 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 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.

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.

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.

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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, 485 U.S. 112, 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 these motions did not question the district court's proposed jury instructions, nor did they specifically mention the issue of jury instructions at all. Except for the issue of qualified immunity, discussed below, these motions 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

Benigni claims that the City violated his first amendment right of association because the police harassment interfered with his family relations and also because it discouraged friends and patrons from frequenting the Silver Fox, thereby interfering with his social relations. In Roberts v. United States Jaycees, 468 U.S. 609, 617-618, 104 S.Ct. 3244, 3249-3250, 82 L.Ed.2d 462 (1984), the Supreme Court reiterated that its cases have protected associational freedom in two distinct senses: (1) holding that choices to enter into and maintain certain "intimate human relationships" must be secured against undue intrusion; and (2) holding that the right to associate

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for the purpose of engaging in those expressive activities protected by the First Amendment (e.g., speech, assembly, petition for the redress of grievances, exercise of religion) must be protected.

On April 3, 1989, over two years after the trial in the instant case, the Supreme Court filed its decision in City of Dallas v. Stanglin, --- U.S. ----, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989). In Stanglin, the Court ruled that the activity of dance-hall patrons--coming together to engage in recreational dancing--is not protected by the First Amendment. Id. 109 S.Ct. at 1595. The Court first reasoned that the patrons are not engaged in the sort of "intimate human relationships" referred to in Roberts. Id. Second, the Court also noted that there are no expressive forms of association at stake that would fall under the protections of the First Amendment since "[t]here is no suggestion that these patrons 'take positions on public questions,' or perform any of the other similar activities described in Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 548, 107 S.Ct. 1940, 1947, 95 L.Ed.2d 474 (1987)." Id.

The Stanglin case places the validity of Benigni's first amendment claims into serious doubt, but we do not reach the specific issue of whether Stanglin precludes Benigni's claims. First, the City did not specifically object to the first amendment jury instructions, Martinelli v. City of Beaumont, 820 F.2d 1491, 1493-94 (9th Cir.1987), and did not properly preserve this issue on appeal. Litchfield v. Spielberg, 736 F.2d 1352 (1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985). Second, the City similarly invited error by proposing the alternative jury instruction below which also seems to run afoul of Stanglin:

On the first amendment claim, you must find that the actions of defendants (a) significantly interfered with plaintiff's ability to freely associate with the customers of The Silver Fox for social purposes, or (b) significantly interfered with the ability of the customers of The Silver Fox to freely associate with each other for social purposes.

Thus, even if Benigni's first amendment claims are invalid...

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