Solomon Lusby, Vaughn Lusby and Alvin Lusby, Plaintiffs-appellees, v. T.g. & Y. Stores, Inc., an Oklahoma Corporation; City Oflawton, a Municipal Corporation; Charles Gent,steve Wertz, and Kent Dunegan,defendants- Appellants, 796 F.2d 1307 (10th Cir. 1986)

After examining the briefs and the record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this case. See Fed. R. App. P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Solomon, Vaughn, and Alvin Lusby were arrested in Lawton, Oklahoma, after allegedly shoplifting from a Lawton T.G. & Y. store. In fact there had been no shoplifting, and the Lusby brothers sued in federal court the city of Lawton, T.G. & Y., the off-duty Lawton police officer who served as a store guard, and the Lawton police officers who made the arrest. The brothers asserted federal Civil Rights Act and pendent state law claims against each defendant. A jury returned a verdict for each of the Lusby brothers against each defendant on their 42 U.S.C. § 1983 claims, also finding liability on some of the pendent claims. Two separate appeals were taken; the cases were consolidated; and this court affirmed. The details are set out in our opinion, Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984).

T.G. & Y. filed a petition for certiorari to the United States Supreme Court. The city and its police officers filed another. The Court granted the city's petition, issuing a one-sentence order vacating the judgment and remanding to this court "for further consideration in light of City of Oklahoma v. Tuttle, 471 U.S. ---- [, 105 S. Ct. 2427, 85 L. Ed. 2d 791] (1985)." City of Lawton v. Lusby, --- U.S. ----, 106 S. Ct. 40, 88 L. Ed. 2d 33 (1985). On the same day the Court denied T.G. & Y.'s petition. T.G. & Y. Stores, Inc. v. Lusby, --- U.S. ----, 106 S. Ct. 65, 88 L. Ed. 2d 53 (1985). On reconsideration we reaffirm.

In Tuttle the Supreme Court examined how much evidence would be necessary to allow an inference of a municipal "policy or custom" as support for municipal liability on a Sec. 1983 claim. The Court held that a jury instruction permitting an inference of a policy from evidence of one instance of misconduct alone was improper. 471 U.S. at ----, ----, 105 S. Ct. at 2436, 2441. In the present case, as part of a lengthy instruction to the jury on the possible liability of the city, the trial court stated:

" [A] single, unusually brutal or egregious beating administered by a group of municipal employees may be sufficiently out of the ordinary to warrant an inference that it was attributable to inadequate training or supervision amount [sic] to deliberate indifference or gross negligence on the part of officials in charge."

R. XXV, 1679.¹  This instruction was almost identical to the instruction struck down in Tuttle, 471 U.S. at ---- - ----, 105 S. Ct. at 2430-31, and therefore also was improper.

This does not mandate reversal, however. We first note there was substantial evidence demonstrating that Lawton had a policy that violated plaintiffs' constitutional rights. See Lusby, 749 F.2d at 1430-32. Harmless error analysis normally applies in civil cases, see 28 U.S.C. § 2111; Fed. R. Civ. P. 61, and it specifically applies to faulty jury instructions, see 7 J. Moore & J. Lucas, Moore's Federal Practice p 61.09 (2d ed. 1985); 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2886 (1973). The error is harmless when the erroneous instruction could not have changed the result of the case.

Some of the Supreme Court's language in Tuttle, however, appears to suggest that an improper jury instruction of this type cannot be held harmless. The plurality opinion states that plaintiffs' independent evidence of inadequate training makes no difference because under the instruction the jury "could" have imposed liability based upon a single incident. See Tuttle, 471 U.S. at ----, 105 S. Ct. at 2435; cf. Connecticut v. Johnson, 460 U.S. 73, 85, 103 S. Ct. 969, 976, 74 L. Ed. 2d 823 (1983) (no reason to believe jury undertakes more difficult task of weighing evidence on one element of crime when alternative element can be presumed). Justice Brennan's concurring opinion also states that "the judgment must be reversed because the instructions permitted the jury to find the city liable even if the jury did not believe" the other evidence of inadequate training of officers. Tuttle, 471 U.S. at ----, 105 S. Ct. at 2441 n. 7. Yet we are reluctant to read Tuttle as foreclosing harmless error analysis because of the Supreme Court's routine application of such analysis--even in criminal cases involving important constitutional rights. See, e.g., Rose v. Clark, --- U.S. ----, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

We need not decide whether harmless error analysis applies, however, because the city did not object to the "single incident" instruction at trial. Ordinarily, unless objection to a faulty instruction is made before the jury retires, error may not be found later. Fed. R. Civ. P. 51. In Tuttle the plaintiff did not raise the city's failure to object to the instruction until the case reached the Supreme Court. The Court ruled that the procedural defense came too late. The Court's plurality opinion noted that the argument "might have prevailed had it been made to the Court of Appeals" but, because the faultiness of the instruction had been argued by the parties and decided squarely in the Court of Appeals, the contemporaneous objection argument would be regarded as waived by the plaintiff. Tuttle, 471 U.S. at ----, 105 S. Ct. at 2432.

The case before us now is in a different posture. Here there also was no objection to the faulty instruction at trial. But unlike Tuttle, on their appeal to this court the defendants' briefs made no objection to the instruction.²  Our opinion did not mention the instruction. Rather, the defendant city argued on appeal only that there had not been enough evidence of city employees' misbehavior to establish a policy. See Brief of Appellants City of Lawton, Steve Wertz and Kent Dunegan at 27-30. This was an insufficiency of the evidence argument, and we treated it as such. See Lusby, 749 F.2d at 1432.

The city's petition for certiorari in the Supreme Court, filed before the Court decided Tuttle, also made the "single incident" argument as one of sufficiency of the evidence. The jury instruction was mentioned only obliquely in another section of the petition.³  Plaintiffs' response, filed after Tuttle was issued, did argue that the instruction was not properly before the Court, because of the city's failure to object at trial or to raise any error in the instruction before the circuit court. Respondents' Consolidated Brief in Opposition to the Petitions for Writs of Certiorari at 11-12. We do not read the Supreme Court's cryptic order remanding for our reconsideration in light of Tuttle as a holding that the Rule 51 defect is either waived or inapplicable in this case. There is no point at which we can say that the Lusby brothers' Rule 51 contemporaneous objection argument should have been raised earlier and thus can be regarded as waived. There was no plenary consideration of the instruction's merits, as there was in the circuit court opinion in Tuttle, to preclude raising the procedural defect now. The Lusbys again have raised the Rule 51 issue in their briefs on remand. We hold that it is a timely and valid defense to the city's argument that the instruction error warrants a new trial.

The city is not aided by the plain error exception to the contemporaneous objection requirement for appellate review. The exception permits an appellate court to correct only "particularly egregious errors" affecting the fairness, integrity or public reputation of judicial proceedings. United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 1046-47, 84 L. Ed. 2d 1 (1985) (criminal case) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S. Ct. 1584, 1592, 71 L. Ed. 2d 816 (1982); United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555 (1936)); United States v. Hooks, 780 F.2d 1526, 1532 (10th Cir. 1986) (criminal case). It is to be used sparingly, only when a "miscarriage of justice" would otherwise result. Young, 470 U.S. ----, 105 S. Ct. at 1047 (quoting Frady, 456 U.S. at 163 n. 14, 102 S. Ct. at 1592 n. 14). The exception is no less rarely applied in civil cases. See Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1516 (10th Cir. 1984) (use limited to "exceptional cases"; late objection to faulty jury instruction disallowed), aff'd, --- U.S. ----, 105 S. Ct. 2847, 86 L. Ed. 2d 467 (1985).

In determining whether plain error applies in this case, we must view the instruction error in the context of the entire record. Young, 105 S. Ct. at 1047. "It is simply not possible for an appellate court to assess the seriousness of the claimed error by any other means." Id. We do not read Tuttle to command a finding of plain error in the instant case, especially in light of the plurality's statement that, if the failure to object to the instruction had been raised earlier, that argument might have prevailed. Tuttle, 471 U.S. at ----, 105 S. Ct. at 2432.⁴ 

We are satisfied that, viewing the record as a whole, there was sufficient evidence of more than a single incident to support the establishment of a city policy and hence liability.⁵  First, the city's brief on the initial appeal recited that plaintiffs had introduced evidence of seven instances of police action to meet its burden to establish a city policy or custom that violated their constitutional rights. It asserted that the instances were either unsubstantiated or otherwise defective. Second, there was in the record a "smoking gun," so to speak. The police chief admitted a policy of arresting shoplifting suspects without any independent investigation of merchants' allegations and providing special forms to merchants detaining suspects that allowed officers to issue summons to suspects when they arrived at the store. Lusby, 749 F.2d at 1430, 1432. The unconstitutional policy was thus in effect admitted, and the instances introduced by the Lusbys were not even needed for an inference of a city policy, as our original opinion noted. Id. In light of this we see no miscarriage of justice requiring that the city be given a new trial.⁶ 

What has been said about the city's case applies a fortiori to the other defendants. None of them objected to the instruction. In fact, the instruction given with respect to their liability did not contain the reference to a single incident.⁷  The brief for T.G. & Y. and Gent on the initial appeal made no argument against the instruction; it mentioned single incident cases only in making a sufficiency of the evidence argument. Further, the Supreme Court denied those defendants' petition for certiorari on the same day it granted the petition of the city and its officers.

We reaffirm our decision.