Unpublished Disposition, 848 F.2d 199 (9th Cir. 1988)

MEMORANDUM^* 

Appellant Whiting brought suit against the defendants, police officers Kallas and Jacobs and the city of Adelanto, under 42 U.S.C. §§ 1981, 1983, 1985(3) and 1988, for depriving her of her civil rights. Whiting was arrested for violating California Pen. Code Sec. 148, resisting or obstructing a police officer in performance of his duties. Cal. Penal Code Sec. 148. As part of Adelanto's vehicle abatement program, defendant Kallas was inspecting some vehicles parked next to Whiting's home. When he was unable to find the vehicle identification number of one of the vehicles, a red convertible, he called the California Highway Patrol for assistance. State traffic sergeant Mosley responded. He, too, was unable to find the vehicle identification number. At some point during this inspection, Whiting emerged from her home. When asked by Kallas if she knew who owned the cars, she told him to leave. She told Sgt. Mosley that the cars belonged to her son and husband, and were on her property.

When the tow truck arrived to move the convertible, Whiting apparently positioned herself between the tow truck and convertible and began yelling and cursing that the police could not take the truck. After attempting to talk to Whiting, Kallas called a supervisor, defendant Jacobs. When Jacobs arrived, he advised Whiting that she could be arrested for resisting an officer, but Whiting did not respond, except to tell the officers to leave the property. Kallas and Jacobs succeeded in removing Whiting from the tow bar area, but she ran back and grabbed the tow bar or chains. In the process of arresting Whiting for violating Cal. Penal Code Sec. 148, Jacobs and Kallas twisted her arms in order to handcuff her, allegedly causing some bruising. Whiting also contends that the officers placed a "chokehold" on her. The defendants denied using a chokehold.

The jury found unanimously for the defendants. The plaintiff appeals, alleging that the trial judge gave several erroneous jury instructions. We affirm.

DISCUSSION

We review jury instructions to determine "whether, viewing the instructions as a whole, the court gave adequate instructions on each element of the case to ensure that the jury fully understood the issues. We must consider whether the instruction is misleading or states the law incorrectly to the prejudice of the objecting party." Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir. 1986) (citations omitted). In order to preserve claimed error in instructions for review on appeal, Fed. R. Civ. P. 51 requires that the appellant have properly objected to the offensive jury instruction at trial. Rule 51 provides 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.

For each claim of error in the giving or withholding of jury instructions, the defendants contend that Whiting failed to comply with Rule 51. With one exception, we agree that Whiting did not make the objections to the instructions that Rule 51 requires.

Whiting alleges first that defendants' Instruction No. 131 contained three factual assertions which improperly removed those issues from the jury. In her written objections to proposed jury instructions during trial, Whiting objected to Instruction No. 131 only on the grounds that it conflicted with Martinez v. State of California, 444 U.S. 277, 284-85 n. 8 (1980).¹  We recognize that a party may comply with Rule 51 even if she does not make a formal objection in writing, if the party makes clear to the court the basis for the objection and "it is plain that a further objection would be unavailing." Brown v. Avemco Inv. Corp., 603 F.2d 1367, 1370 (9th Cir. 1979). Whiting has not done so here. At no point before the jury began deliberations did Whiting allege that No. 131 contained improper factual assertions. In fact, plaintiff's counsel began his closing argument by conceding that one of those factual issues was not an issue in the case.

Moreover, we do not find Whiting's stated objection to No. 131, that it conflicted with Martinez, to have merit. In Martinez, the Court noted in a footnote that persons acting under color of state law who engage in conduct that is wrongful under Sec. 1983 cannot be immunized by state law. 444 U.S. at 284-85 n. 8. The instruction in this case stated that the defendants had lawful authority under various California vehicle code sections to inspect vehicles, carry out the City's vehicle abatement program, seize vehicles without vehicle identification numbers, and arrest persons who obstruct officers in the discharge of their duties. The instructions did not assert that these provisions immunized the defendants from liability under Sec. 1983.

Whiting also argues that defendants' Instruction No. 130, "Liberty-Due Process Defined," was inadequate. Once again, though, Whiting failed to comply with Rule 51. Her written objection to this instruction stated no grounds for the objection, nor does the record indicate any reason for objecting to No. 130. We decline to review this alleged error since Whiting has failed to comply with Rule 51.

Whiting raises several objections to various instructions regarding the good faith defense. First Whiting contends that the giving of defendant's Instruction No. 134 misstated the law pertaining to the good faith defense. Specifically, Whiting stated in her written objections to proposed jury instructions that No. 134 conflicted with the Supreme Court's holdings in Harlow v. Fitzgerald, 457 U.S. 800 (1982) and Malley v. Briggs, 475 U.S. 335 (1986).

In Harlow, the Court held that government officials had qualified immunity from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. Thus, the Court settled that qualified immunity would be determined by reference to an objective "reasonable person" test. Id. Malley affirmed the use of an objective test for determining qualified immunity of police officers sued under Sec. 1983 for false arrest. Malley, 475 U.S. at 341.

Whiting attempts to characterize the instructions given by the district court judge as setting forth a subjective standard for determining good faith immunity on the part of the officers. The plain language of the instructions is to the contrary. The court instructed the jury that "If the defendants Kallas and Jacobs reasonably believed that plaintiff had perpetrated a misdemeanor in their presence ... and acted in good faith belief on that basis, then their reasonable belief and good faith action would constitute a defense to the plaintiff's claim of unlawful arrest."²  (Emphasis added.) The court's reference to the reasonableness of the defendants' behavior properly instructed the jury that they were to apply an objective standard when determining if the defendants acted in good faith. The judge's instructions need not exactly mimic the language used in Harlow. Peraza v. Delameter, 722 F.2d 1455, 1457 (9th Cir. 1984). Moreover, here, as in Peraza, the plaintiff never actually requested an instruction based on Harlow. We find the instructions given regarding the good faith defense were adequate to apprise the jury of the law.

Whiting further argues that the court erred in failing to give her requested instruction No. 53 concerning the City's liability. No. 53 would have instructed the jury that the City could not rely on the good faith of the officers as a defense to its liability. However, the court did give Defendant's Instruction No. 57, which advised the jury that " [I]f you find that the actions of the defendant City violated the plaintiff's rights, then you must return a verdict against the City, even if the actions of its employees were taken in good faith.... The good faith of the individual defendants and of the City itself should not be considered by you in determining the liability of the City." This instruction correctly and adequately states the law.

Whiting also objects to the court's failure to give Instruction No. 37 "Plaintiff's Claims," in its entirety. Specifically, Whiting contends that the court did not adequately instruct on the defendant's alleged use of excessive force. The court instructed the jury at several points on the unlawfulness of the use of excessive force. Viewing the instructions as a whole, as we must, we find that the district court did not err in omitting portions of plaintiff's Instruction No. 37.

Whiting's last objection to the jury instructions concerns the judge's failure to give Plaintiff's Instructions Nos. 41 and 45. Both of these instructions were based on Pembaur v. Cincinnati, 475 U.S. 469 (1986). They would have advised the jury that a municipality could be held liable under Sec. 1983 based on a single decision by a municipal policy maker which violated the plaintiff's constitutional rights. Once again, though, Whiting has failed to comply with Rule 51. She failed to object to Defendant's Instruction No. 132 on the requisites for finding municipal liability. Nor did she make any objection to the instructions concerning municipal liability after they were given. Mere submission of alternative instructions does not satisfy Rule 51 when the plaintiff has not shown that the judge was made aware of the omission and given an opportunity to correct it. Investment Service Co. v. Allied Equities Corp., 519 F.2d 508 (9th Cir. 1975); see also Martinelli v. City of Beaumont, 820 F.2d 1491, 1493 (9th Cir. 1987) (review granted where court clearly knew plaintiff objected to court's instructions, based on submission of alternative instructions and argument at trial) and Brown, 603 F.2d at 1371-73 (review granted where record indicated extensive argument on issue covered by challenged jury instruction at trial). Nothing in the record indicates either that the court was cognizant of the omission or that further objection would have been futile. See Roberts Waikiki U-Drive v. Budget Rent-A-Car, 732 F.2d 1403, 1409-10 (9th Cir. 1984). We thus find that Whiting did not properly raise her objection to the omission of Instructions 41 and 45 below, and we decline to reach the merits on that issue.³ 

Finally, Whiting argues that the judge committed misconduct by warning plaintiff's counsel that if Whiting did not "contain herself" he would ask her to leave the courtroom. The record is silent as to what actually transpired to prompt this comment from the district court judge; plaintiff's brief sheds no light on the matter. Whiting did not object to the judge's comment at trial. The judge's remarks, without more, did not constitute an abuse of discretion nor deny Whiting a fair trial. United States v. Greene, 698 F.2d 1364, 1375 (9th Cir. 1983).

The decision below is AFFIRMED.