Spanish Action Committee of Chicago v. City of Chicago, 84-2299

• Citation: 766 F.2d 315
• Decision Date: 15 July 1985
• Docket Number: No. 84-2299,84-2299
• Parties: SPANISH ACTION COMMITTEE OF CHICAGO, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant, and Thomas Braham, James Zarno and William Duffy, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 315

766 F.2d 315

SPANISH ACTION COMMITTEE OF CHICAGO, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant, and Thomas Braham, James Zarno and William Duffy, Defendants-Appellees.

No. 84-2299.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 1985.

Decided June 27, 1985.

Rehearing Denied July 15, 1985.

Richard M. Gutman, Richard Gutman, P.C., Chicago, Ill., for plaintiff-appellant.

Sharon Baldwin, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before WOOD, ESCHBACH and POSNER, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

This section 1983 case concerns a 1966 Chicago Police Department Intelligence Division Security Section operation to infiltrate and disrupt the activities of the Spanish Action Committee of Chicago ("SACC"), a Humboldt Park Puerto Rican group organized to address community problems such as housing, education, police brutality, and community unrest. The suit named the City of Chicago ("City") and three employees of the Chicago Police Department Intelligence Division Security Section--Thomas Braham, James Zarno, and William Duffy--as defendants. The suit charged the individuals in their individual and official capacities with violating SACC's constitutional rights to associate freely and to due process of law by carrying out a secret operation to destroy SACC, its leaders, and its community influence. The jury found that all four defendants had violated SACC's first amendment rights but granted the three individual defendants qualified immunity. The jury awarded $60,000 in compensatory damages but no punitive damages, finding that none of the three individual defendants possessed the state of mind necessary for the award of punitive damages. After denying SACC's motion for judgment notwithstanding the verdict and its motion for a new trial on the immunity and punitive damages issues, the district court judge entered judgment in the amount of $60,000 against the City, the only non-immune defendant. ¹

SACC appeals the grant of qualified immunity to each of the individual defendants and the finding that none of the three individual defendants had the mental state necessary to be held liable for punitive damages. No party has appealed the $60,000 compensatory damages award, nor has the City cross-appealed the grant of immunity to the three individual defendants in an attempt to receive contribution.

I.

SACC raises several arguments attacking the jury's finding that none of the three individual defendants possessed the mental state necessary for the award of punitive damages. First, SACC attacks the punitive damages instruction and the special verdict question. The judge instructed the jury to award punitive damages if it found that any of the individual defendants acted "knowingly and maliciously to deprive plaintiff of its constitutional rights." The judge then defined a "malicious" act or omission as one "done in reckless or callous disregard of, or indifference to, the rights of plaintiff." The special verdict question on punitives asked whether the plaintiff had proven that defendants acted "knowingly and maliciously." ²

SACC argues that this instruction and special jury verdict question do not accord with Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) which held that punitive damages may be awarded in a section 1983 action not only when "defendant's conduct is shown to be motivated by evil motive or intent," but also "when it involves reckless or callous indifference." Id. at 51, 103 S.Ct. at 1638. First, SACC argues that the instruction's definition of "malicious" as "reckless" is nonsensical and confusing. Second, it argues that even if "malicious" can be sensibly taken to mean "reckless" the judge erred in using the conjunctive conjunction "and" rather than the disjunctive conjunction "or" between "knowingly" and "maliciously" in both the instruction and the special verdict question.

Although we see some merit to SACC's arguments about the punitive damages instruction and special verdict question, and cannot recommend them for use in future cases, we do not order a new trial on punitives in this case because SACC failed to raise these objections to the instruction and special verdict question at trial.

Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A. (West 1968), states that "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." We apply this rule in light of its purpose which is to afford the trial judge an opportunity before it is too late, to correct any inadvertent error in charging the jury and thereby avoid costly appeal and remand proceedings. See Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir.1955); see also Mays v. Dealers Transit, Inc., 441 F.2d 1344, 1351-52 (7th Cir.1971).

SACC filed its original proposed jury instruction and special verdict question on punitive damages with the district court prior to Smith v. Wade; accordingly, the proposed instruction allowed punitives only upon a showing that any or all of the defendants acted knowingly and maliciously. Subsequent to Wade, but before trial, SACC filed a revised proposed punitive damages jury instruction and special verdict question in accordance with Wade. The revised instruction and question permitted the granting of punitives not only if any of the individual defendants had acted knowingly and maliciously, but also if any of them had acted with callous or reckless indifference to the rights of SACC.

The afternoon before the jury was charged the judge gave the attorneys her proposed jury instructions and special verdict form. The proposed punitive damages instructions and special verdict question apparently did not reflect the changes Smith v. Wade required. The next morning, at an 11:00 A.M. instruction conference, SACC's counsel objected to the court's proposed instruction as contrary to Smith v. Wade. The judge responded that after she had given the attorneys her proposed instructions she had added the concept of "recklessness" to the definition of "malicious," thus defining "malicious" as "acting with reckless or callous disregard of, or indifference to, the rights of plaintiff." After taking a moment to read the amendment, SACC's counsel said: "I see that. I didn't have that on my page." The attorneys and the judge then proceeded to consider other matters; SACC's counsel made no further mention of the proposed punitive damages instruction or special verdict question either during or after the instruction conference.

SACC argues that it complied with Rule 51 when it objected to the judge's original proposed instruction and it never withdrew this objection. This argument misses the mark, however, because the pertinent question is whether SACC ever objected to the judge's amended jury instruction. In fact, the only thing SACC's counsel said regarding the amended instruction was--"I see that. I didn't have that on my page." We do not believe this response constitutes an objection because it did not put the trial judge on notice of plaintiff's disapproval, giving her an opportunity to correct the alleged error. See Marshall v. Nugent, 222 F.2d at 615.

SACC also argues that even if it failed to make a timely objection to the amended jury instruction it should be excused because its counsel was not given sufficient time to consider the amendment and object to it. Although it may be true that SACC's counsel did not have sufficient time to consider and object to the amendment during the 11:00 A.M. instruction conference when it was first brought to his attention, he did have sufficient time to examine the amendment later, either during the forty-five-minute lunch recess or during the brief afternoon recess taken between the end of closing argument and the charging of the jury. In view of these opportunities to examine the amendment we cannot excuse SACC's failure to make a timely objection.

Although SACC has not argued the point, a court may, in exceptional circumstances, order a new trial in a civil case for an error in instructions even though not objected to at trial. See Parrett v. City of Connersville, Ind., 737 F.2d 690, 698 (7th Cir.1984), cert. dismissed, --- U.S. ----, 105 S.Ct. 828, 83 L.Ed.2d 820 (1985); Exxon Corp. v. Exxene Corp., 696 F.2d 544, 549 (7th Cir.1982), and cases cited therein ("Plain Error Rule"). We are extremely reluctant to employ this exception to Rule 51 however, because to do so contravenes both the language and intention of Rule 51. The language of Rule 51 provides for no exception to the timely objection requirement and this lack of an exception in the Civil Rules is especially conspicuous when juxtaposed to the express exception to the timely objection rule in the Criminal Rules. See FED.R.CRIM. P. Rule 52(b), 18 U.S.C.A. (West 1976) ("Plain Error Rule"). Rule 51 is intended, as stated before, to encourage parties to raise all possible points at trial so that trial courts will have an opportunity to correct them and thereby eliminate the necessity of costly appeal and remand proceedings. To the extent we allow appeals of unobjected to instructions we undermine the rule's efficacy; we therefore employ the exception rarely and only in exceptional cases. See Parrett, 737 F.2d at 698; Exxon, 696 F.2d at 549. Finding no exceptional circumstances in this case we refuse to ignore the dictate of Rule 51.

SACC also appeals the trial judge's denial of its motion for judgment notwithstanding the verdict ("J.N.O.V.") or, in the alternative, for a new trial on the issue of punitive damages. Our review of the denial of the J.N.O.V. motion is limited to considering whether under the law as established by Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed. 632 (1983) there was an adequate evidentiary basis for a decision denying...