Craig Chestnut v. City of Lowell

PER CURIAM.

EN BANC OPINION

Defendant the City of Lowell (“City”), claiming immunity to punitive damages under City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), appeals from a judgment of punitive damages in a suit filed under 42 U.S.C. § 1983 (2000). A divided panel of this court affirmed on March 29, 2002, agreeing with the district court that the City’s objection had been waived. We vacated the panel opinion pending rehearing en banc, and now reverse. The facts taken in the light most hospitable to the verdict winner, Nat’l Ass’n of Soc. Workers v. Hanvood, 69 F.3d 622, 625 (1st Cir.1995), are as follows.

On February 7, 1997, Craig Chestnut and his wife went to a bar in Lowell, Massachusetts. City police officers Steven Coyle and Stephen Ciavola were also present when Chestnut became embroiled in a fracas. Coyle arrested and handcuffed Chestnut and removed him from the bar, whereupon Ciavola struck Chestnut in the face, knocked him to the ground and kicked him in the face. As a result of Ciavola’s violent conduct, Chestnut required fourteen stitches around his right eye, which is permanently damaged. This injury impairs Chestnut’s long-range depth perception and precludes him from earning a living as a crane operator, as he did previously.

Chestnut filed suit under 42 U.S.C. § 1983 together with supplemental state law negligence claims against the City, Coyle and Ciavola, alleging inter alia that (1) Ciavola used excessive force against him; (2) Coyle, after having taken Chestnut into police custody, failed to protect him; and (3) the City improperly hired and retained Ciavola, who had an extensive criminal record (including convictions for assault and battery) and was, at the time of hire, the subject of an active arrest warrant for failure to appear in court for violating his probation.

As the trial drew to a close, the district court held a conference with the attorneys on May 22, 2000 to discuss jury instructions and the verdict form, which included a question on punitive damages. The court raised with counsel the appropriateness of a punitive damages award under section 1983. Chestnut’s attorney replied that such an award was appropriate, and the City’s counsel did not respond to the judge’s inquiry or take issue with opposing counsel’s response. In due course, the trial judge instructed the jury, without objection, that it could award punitive damages against each defendant, including the City, as to the section 1983 claim.

On May 23, the jury returned a verdict for Chestnut on both the negligence and section 1983 counts against Ciavola and the City. The jury did not find Coyle liable on either count; it awarded Chestnut $750,000 in damages: $500,000 in punitive damages against the City, $40,000 in punitive damages against Ciavola, and $210,000 in compensatory damages against both of these defendants jointly and severally. The district court entered judgment, again without objection from the City.

Finally awakening to its oversight of City of Newport on May 25, the City filed a motion for a new trial, or, in the alternative, to strike the $500,000 of punitive damages. At a motion hearing on July 12, 2000, the district court, ruling from the bench, denied the City’s motion. Although recognizing that an award of punitive damages against a municipality was indeed error in light of City of Newport, the district court found that the City's failure to interpose a timely objection under Fed. R.Civ.P. 51 waived its immunity. These appeals followed.¹

In relying upon "waiver," the district court assuredly did not mean that the City knowingly relinquished its immunity under City of Newport to punitive damages; there is no evidence whatsoever that the City's counsel knew of City of Newport. Rather, the district judge clearly meant, in the term used in United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), that the City had "forfeited" its objection through ignorance or neglect. Although most judges, and many Supreme Court decisions, continue to use the term "waiver" to cover both situations, the distinction is important in this case and we will follow Olano ``s convention in this instance.

Failures to object, unless a true waiver is involved, are almost always subject to review for plain error. This is so even in the case of jury instructions where Rule 51's current language suggests otherwise.² However, even in criminal cases, the requirements for plain error, set out in Ola-no itself, 507 U.S. at 732-36, 113 S.Ct. 1770, are extremely demanding; and in this circuit, it is rare indeed for a panel to find plain error in a civil case. Still, this case at first blush meets the Olano requirements: error, plainness, prejudice, and miscarriage of justice or something akin to it.

The district court itself acknowledged the error, its plainness is amply demonstrated by a contrary Supreme Court precedent on point (namely, City of Newport) that has been on the books for over twenty years. Prejudice in the sense of affecting the final outcome is also obvious: had the jury been instructed as to the City's immunity, there almost certainly would not be a $500,000 judgment against it today, although conceivably the jury might have somewhat increased the compensatory damages.

This also appears to be the rare civil case where the miscarriage of justice requirement is met. Importantly, the error was caused by the plaintiff as well as the defendant. Plaintiff's counsel, quite erroneously, represented to the district court at the charge conference that punitive damages were permissible against a municipality. This does not excuse the negligence of the City's counsel but it does mean that responsibility for the mistake is shared--a somewhat unusual circumstance.

Further, even without punitive damages, the plaintiff is still entitled to full actual damages, which in this case are substantial. Nor need such damages be reduced by attorneys' fees because under section 1983 such fees are separately awarded. 42 U.S.C. § 1988 (2000). Punitive damages are, in this sense, a windfall — and one that here would come at the expense of innocent taxpayers of the City, the very ones for whose benefit City of Newport adopted the rule giving municipalities such an immunity. 458 U.S. at 267, 101 S.Ct. 2748.

The main hitch with the plain error doctrine is that City of Newport described the protection against punitive damages as an “immunity,” rather than as a “rule” forbidding punitive damages. Accordingly, as an immunity need not be asserted, one could argue that the instruction was not “error” at all, let alone “plain error.” A state, after all, can waive sovereign immunity. Certainly if counsel for the City had stood up and said that the City preferred to face punitive damages, it could hardly complain if the judge took the City at its word.

Still, this is surely a matter of form over substance. For all practical purposes, the district com! made an error, and the district court itself acknowledged as much. If the district judge had discovered Newport on her own the night before the instructions, it is hardly likely that she would have authorized punitive damages. And although a state might sometimes choose to waive sovereign immunity for policy reasons, hoping to win on the merits, one can hardly imagine a competent lawyer choosing to waive protection against punitive damages.

This realistic view is not without precedent. In O’Connor v. Huard, 117 F.3d 12 (1st Cir.1997), cert. denied, 522 U.S. 1047, 118 S.Ct. 691, 139 L.Ed.2d 636 (1998), we reviewed for plain error the defendant’s defense of qualified immunity, raised for the first time after the entry of judgment. In applying the plain error analysis, we did not find that the defendant forfeited her immunity by her procedural default, but rather denied relief on the lack of evidence. Id. at 17. We treated a late-filed interposition of qualified immunity in the same fashion in Lewis v. Kendrick, 944 F.2d 949, 953 (1st Cir.1991). See also id. at 956 (Breyer, C.J., concurring).³

Of course, even if the doctrine of plain error were not strictly applicable, it is settled in this circuit that “an appellate court has discretion, in an exceptional case, to reach virgin issues,” that is, to relieve a party of a prior forfeiture. United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir.1990). Recently we described pertinent factors in Harwood, 69 F.3d at 627-29 (relieving forfeiture of legislative immunity); most of those factors are present here and, although this case, unlike Har-wood, does not involve a constitutional issue, neither did Harwood disregard a governing and plainly applicable Supreme Court precedent. See also United States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982). The City asserts that we should simply strike the punitive damages award, holding the actual damages award intact. Probably, the jury’s actual damages award was uninfluenced by the large punitives; but given that the City bears much of the blame for any uncertainty, we think on remand it should be the plaintiffs option whether to have a new trial on actual damages against the City (but not against Ciavola) — a trial in which plaintiffs attorneys’ fees will be borne by the City. See 42 U.S.C. § 1988. The district court shall set a time within which the plaintiff may make such an election.

The judgment insofar as it awards punitive damages against the City is vacated and the matter is remanded for further proceedings not inconsistent with this opinion. Each side will bear its own costs on this appeal.

It is so ordered.

1 . The City originally appealed from the denial of its May 25 motion. On June 5, 2000, the City filed an additional motion for a new trial on the ground of inconsistent verdicts. That motion was denied, and the City renewed its notice of appeal. The denial of the June 5 motion is no longer at issue in this appeal, and we consolidated these two appeals on August 24, 2000.

2 . This is so by judicial construction in this circuit. Davis v. Rennie, 264 F.3d 86, 100-01 (1st Cir.2001), cert. denied, - U.S. -, 122 S.Ct. 1909, 152 L.Ed.2d 820 (2002); see also 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure, § 2558, at 462 & n. 11 (2d ed.1995). That rule is currently being amended to make this reservation clear, see Advisory Committee on the Federal Rules of Civil Procedure, Report of the Civil Rules Advisory Committee 62-68 (March 14, 2001, revised Jul. 31, 2001), bringing Rule 51 in line with the normal practice in the case of other errors, e.g., Fed.R.Evid. 103(d).

3 . The approach that we have followed in qualified immunity cases seems to accord with the approach in our sister circuits. See, e.g., Kelly v. City of Oakland, 198 F.3d 779, 784-85 (9th Cir. 1999) (examining a late-filed qualified immunity defense on the merits under the plain error standard).