Jimenez v. Wood Cnty.

• Decision Date: 13 October 2011
• Docket Number: No. 09–40892.,09–40892.
• Citation: 80 Fed.R.Serv.3d 1408,660 F.3d 841
• Parties: Oscar Gabriel JIMENEZ; Chandra Rae Jimenez, Plaintiffs–Appellees, v. WOOD COUNTY, TEXAS; Sheriff Dwaine Daugherty, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

660 F.3d 841

80 Fed.R.Serv.3d 1408

Oscar Gabriel JIMENEZ; Chandra Rae Jimenez, Plaintiffs–Appellees,

v.WOOD COUNTY, TEXAS; Sheriff Dwaine Daugherty, Defendants–Appellants.

No. 09–40892.

United States Court of Appeals, Fifth Circuit.

Oct. 13, 2011.

Edwin Earle Wright, III, Stradley & Wright, Dallas, TX, Joe C. Tooley (argued), Rockwall, TX, for Plaintiffs–Appellees.

Robert Scott Davis (argued), David Ryan Herring Iglesias (argued), Flowers Davis, P.L.L.C., Tyler, TX, for Defendants–Appellants.

Appeal from the United States District Court for the Eastern District of Texas.Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit

Judges.^*

JENNIFER WALKER ELROD, Circuit Judge, joined by KING, E. GRADY JOLLY, W. EUGENE DAVIS, BENAVIDES, CARL E. STEWART, DENNIS, PRADO, LESLIE H. SOUTHWICK, and HAYNES, Circuit Judges:

Wood County, Texas and Sheriff Dwaine Daugherty (collectively “the County”) appeal from the judgment against them on Oscar and Chandra Jimenez's action under 42 U.S.C. § 1983. For the reasons set forth below, we AFFIRM.

I.

Oscar and Chandra Jimenez operated a bar in Wood County. In 2005, the bar hosted a New Year's Eve party, which was attended by undercover agents of the Texas Alcoholic Beverage Commission (TABC). Later that evening, TABC agents raided the bar, assisted by officers of the Wood County Sheriff's Department. Mr. Jimenez fled, and the agents could not locate him. At some point, they began to suspect that he was hiding in the trunk of his wife's car, which was parked behind the bar. After repeated requests by the agents, Ms. Jimenez opened the trunk and the agents' suspicions were confirmed. Mr. Jimenez was arrested for evading arrest and Ms. Jimenez was arrested for hindering apprehension, a Class A misdemeanor under these circumstances. At the Wood County jail, Ms. Jimenez was strip-searched, in accordance with the policy of the Wood County Sheriff's Department. At the time, department policy required strip searches of all persons entering the jail who were arrested for a felony, Class A misdemeanor, or Class B misdemeanor.

Mr. and Ms. Jimenez sued the TABC, Wood County, and Sheriff Daugherty under 42 U.S.C. § 1983, alleging constitutional violations stemming from their arrests. Relevant to this appeal, Ms. Jimenez claimed that, because she was arrested for a minor offense, she could be strip-searched only upon reasonable suspicion that she was concealing weapons or contraband. This claim proceeded to trial. The final jury charge instructed the jury that reasonable suspicion was required for a strip search of a person arrested for a minor offense. Because the court concluded that Ms. Jimenez's offense was a minor offense as a matter of law, the charge directed that if the jury found reasonable suspicion lacking, it must find that the County violated her Fourth Amendment rights. At the charge conference, the County presented only one formal objection to the jury instructions: “Just one objection, Your Honor, the—the Court finding that this was a minor offense as a matter of law. For record purposes, we would object.” The County did not object to the “reasonable suspicion” requirement.

The jury ultimately returned a verdict for Ms. Jimenez. In accordance with the jury's verdict, the court entered a final judgment against the County, awarding Ms. Jimenez $55,000 for past and future mental anguish, and $5,000 in punitive damages. In addition, the court awarded $157,394.60 in attorneys' fees, and $37,153.95 in costs. The County appealed, and a panel of this court affirmed. Jimenez v. Wood Cnty., Tex., 621 F.3d 372 (5th Cir.2010). We granted rehearing en banc and vacated the panel opinion. Jimenez v. Wood Cnty., Tex., 626 F.3d 870 (5th Cir.2010).

II.

The County raises two challenges to the jury instructions given at trial.¹ First, the County argues that the jury should not have been instructed that reasonable suspicion was required for the strip search of Ms. Jimenez. According to the County, the decades-old, well-settled precedent of this court requiring reasonable suspicion for strip searches of minor-offense arrestees misinterpreted the Supreme Court's earlier decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See, e.g., Kelly v. Foti, 77 F.3d 819, 821 (5th Cir.1996) (“Jail officials may strip search a person arrested for a minor offense and detained pending the posting of bond only if they possess a reasonable suspicion that he is hiding weapons or contraband.”); Stewart v. Lubbock Cnty., Tex., 767 F.2d 153, 156–57 (5th Cir.1985) (“Because Lubbock County's strip search policy was applied to minor offenders awaiting bond when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband, under the balancing test of Wolfish we find such searches unreasonable and the policy to be in violation of the Fourth Amendment.”). In the wake of Wolfish, every other circuit to consider the issue came to the same conclusion as this court.² Recently, however, two circuits have overruled their prior precedent,³ and two others have weighed in for the first time,⁴ holding that such strip searches do not require reasonable suspicion. The County urges us to follow the lead of these courts and overrule our precedent requiring reasonable suspicion for the strip search of a person arrested for a minor offense. In the alternative, the County argues that the jury should not have been instructed that Ms. Jimenez's offense was a minor offense as a matter of law. We consider each argument in turn.

A.

Our standard of review for challenges to jury instructions is governed by Rule 51 of the Rules of Civil Procedure. Rule 51 requires a party to object to jury instructions in order to preserve a claim of error for appeal. An objection must be made “on the record” and must state “distinctly the matter objected to and the grounds for the objection.” Fed.R.Civ.P. 51(c)(1). The objection must have been made on the specific “ground raised on appeal, rather than a general objection to the instructions as a whole or an objection on a different ground.” Fiber Sys. Int'l, Inc. v. Roehrs, 470 F.3d 1150, 1158 (5th Cir.2006). Thus, a specific, formal, on-the-record objection is required. See United States v. Redd, 355 F.3d 866, 874–75 (5th Cir.2003).

Rule 51 also dictates the timing of such an objection. After informing the parties of its intended instructions, the court “must give the parties an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered.” Fed.R.Civ.P. 51(b)(2). All objections must be made at that time. Fed.R.Civ.P. 51(c)(2)(A).

Where a specific and timely objection is made, we review that objection “under an abuse of discretion standard, affording the trial court substantial latitude in describing the law to the jurors.” United States v. Santos, 589 F.3d 759, 764 (5th Cir.2009) (internal quotation marks omitted). Where a proper objection is not made, however, our review of a jury instruction challenge is limited to review for plain error. See Fed.R.Civ.P. 51(d)(2) ( “A court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights.”). We have discretion to correct such an unpreserved error only if it is plain, affects substantial rights, and “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Mondragon–Santiago, 564 F.3d 357, 361 (5th Cir.2009) (internal quotation marks omitted); see also Fed.R.Civ.P. 51(d)(2). If the unpreserved error does not meet this demanding standard, we have no authority to correct it. United States v. Olano, 507 U.S. 725, 740, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see also Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009).

B.

The County argues that the district court erred in instructing the jury that reasonable suspicion was required for the strip search of Ms. Jimenez. Yet the County did not lodge an objection on this ground in the district court. When the court provided an opportunity for the parties to object to the jury instructions, the County objected only to the court's “finding that [hindering apprehension] was a minor offense as a matter of law.” Hence, the error has been forfeited.

The County offers two arguments as to why its failure to comply with Rule 51 should be excused. Both are unavailing. First, the County asserts that it sufficiently alerted the district court to its objection by mentioning the Eleventh Circuit's decision in Powell v. Barrett⁵ during a pre-trial conference before the magistrate judge. This discussion, even if it had amounted to a formal objection to the jury instruction, could not preserve an error for our review because it does not satisfy the timing requirement set forth in Rule 51.⁶ Objections to the jury instructions must be made “at the opportunity provided [by the court] under Rule 51(b)(2)”—after the court announces its proposed instructions, and before the instructions and arguments are delivered.⁷ Fed.R.Civ.P. 51(c)(2)(A).

Second, the County argues that it should not have been required to object to preserve error because any objection would have been futile given our controlling precedent requiring reasonable suspicion. In a similar situation, the Supreme Court refused to create a futility exception to plain error review. See Johnson v. United States, 520 U.S. 461, 465–66, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). In Johnson, at the time of trial, “near-uniform precedent both from [the Supreme Court] and from the Courts of Appeals held” that, in a perjury prosecution, the materiality of the alleged false statements could be decided by the judge, rather than the jury. Id. at 467–68, 117 S.Ct. 1544. Unsurprisingly,...