Case Information
*1 In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2430
Steven J. Chestnut, Kimberly M. Cunningham and Bary L. Brown,
Plaintiffs-Appellants,
v.
Officer Terry Hall, Individually as a Sergeant for the Indianapolis Police Department; Officer Ron Burgess,
Individually as an Officer for the
Indianapolis Police Department; and Officer David Neal, Individually
as an Officer for the Indianapolis Police Dеpartment; and the City of Indianapolis, Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP00-0525--John D. Tinder, Judge.
Argued January 17, 2002--Decided April 1, 2002 Before Flaum, Chief Judge, Bauer and Easterbroоk, Circuit Judges.
Bauer, Circuit Judge. The plaintiffs- appellants filed suit against the
defendants-appellees, claiming
constitutional rights violations. The case went to trial and a jury returned a verdict in favor of the appellees and against the appellants on all claims. On appeal, the appellants argue that the district court abused its discretion in excluding evidence of a witness’s past misconduct and in submitting flawed instructions to the jury. For the
following reasons, we AFFIRM the judgment of the district court.
Background
The appellants are suppоrters of the International Brotherhood of Teamsters, a union that orchestrated a strike and established a picket line outside of the Overnite Transportation Company’s
("Overnite") Indianapolis facility
toprotest claimed unfair labor practices *2 in late 1999. Wackenhut Corporation ("Wackenhut"), a private sеcurity firm, was hired by Overnite to provide security during the strike, which was by all accounts riddled with clashes between the union supporters and Overnite employees.
One such incident occurred on the night of December 17, 1999. At approximately 10:00 p.m., Paul Tutsie, а former police officer employed as a supervisor by Wackenhut, contacted Sergeant Terry Hall of the Indianapolis Police Department.
Tutsie informed Hall that one of his subordinates then working the Overnite location reported that strikers were vandalizing Overnite property. In
particular, Tutsie told Hall that one of his subordinates reported that some strikers were throwing down nails in front of the main gate in an effort to block non-striking truckers from entering and exiting. In response tо Tutsie’s call, Hall called for backup and
proceeded to the Overnite facility.
Upon arriving at Overnite, Hall,
followed by Officers David Neal and Ron Burgess, approached the picket line.
Standing near Overnite’s front entrance were all three appellants, Steven J.
Chestnut, Kimberly M. Cunningham and Bary L. Brown, and a fоurth individual, Bruce Hamilton. What happened next is not altogether clear. The appellants complain that they were "seized, searched and intimidated" by the appellees "without probable cause, a warrant, the consent of the individuals, or exigent
circumstances." Though the appellees concede that they did not have a search warrant when investigating the report of vandalism at Overnite, they argue that no unlawful search or seizure occurred because (i) their actions were nothing more than a protective pat-down for weapons as a result of a lawful
investigatory stop; (ii) even if their conduct amounted to a search, each of the appellants voluntarily consented;/1 and (iii) there existed probable cause that a crime was being or had been committed, and there existed exigent circumstances.
After a three day jury trial and
verdict, the district court entered final judgment in favor of the appellees on May 11, 2001. The appellаnts now seek
reversal, arguing that the district court abused its discretion in excluding
evidence of a defense witness’s past misconduct and in submitting flawed instructions to the jury. We find these arguments unavailing.
Discussion
A. Excluded Evidence
Prior to trial, the appellants and the appellees filed several motions in
limine. At issue here is the appellees’ first motion in limine, which sought an order excluding any evidence that witness Paul Tutsie was involved in an incident known as the "Meridian Street Police Brawl" when he was employed by the
Indiana Police Dеpartment. In support of their motion, the appellees argued that any such evidence was irrelevant to the appellants’ claims and its introduction would be unduly prejudicial. The district court granted the appellees’ motion, finding Tutsie’s involvement in the Meridian Street Police Brawl "clearly irrelevant to any issue in this case." We agree.
The Federal Rules of Evidence define "relevant evidence" as "evidence having any tendency to make the existence of a fact that is of consequence to the
determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401 (emphasis added). Evidence of Tutsie’s involvement in the Meridian Street Police Brawl is of no consequence to the determination of this action, nor can such evidence
reasonably be said to have any tendency making the existence of a fact that is of consequence more or less probable.
Tutsie’s rolе on the night of December 17, 1999, was limited to relaying
information received from a subordinate at Wackenhut that strikers were
vandalizing Overnite property. As the district court noted, Tutsie was not even present at the scene when the events giving rise to this lawsuit occurred.
Evidence of past misconduct by a witness whose narrow testimony has no bearing at all on the ultimate determination of the action is properly excluded under Rule 401. The district court in no way abused its discretion in excluding evidencе of Tutsie’s past misconduct in this case.
B. Jury Instructions
The appellants also argue that the district court committed reversible error in submitting flawed instructions on warrantless searches. Specifically, the appellants claim that Final Instructions 20 and 23 set forth inсorrect statements of the law. With respect to Final
Instruction 20, the appellants concede that they did not object to this
instruction on the record at trial as
required by Rule 51 of the Federal Rules
of Civil Procedure. Fed. R. Civ. P. 51 ("At
the close of the evidence or at such
earlier time during the trial as the
court directs . . . [n]o party may assign
as error the giving or the failure to
give an instruction unless that party ob
jects thereto before the jury retires to
consider its verdict, stating distinctly
the matter objеcted to and the grounds of
the objection."). Failure to challenge a
jury instruction in a civil case results
in a waiver and precludes appellate
review. Haley v. Gross,
Notwithstanding, the appellants assert that Final Instruction 20 is properly subject to appellate review because they objected to a similar instruction in the appellees’ proposed jury instructions. We are unpersuaded.
Rule 51 requires not only that
objections to jury instructions be made
in a timely fashion and on the record,
but also with sufficient specificity to
apprise the district court of the legal
and factual bases for any perceived
defect. See, e.g., Knox v. State of
Indiana,
1996) (denying appellate review to party whose instruction objection was not specific enough to alert trial court to argument set forth on appeal); Maltby v.
Winston,
See Haley,
requirements of Rule 51, any argument regаrding Final Instruction 20 is waived.
See Susan Wakeen Doll Co. v. Ashton-Drake
Galleries,
2001).
The appellants’ objection to Final Instruction 23 is likewise waived. In arguing that Final Instruction 23
isproperly subject to appellate review under Rule 51, the appellants again rely on an objection to a propоsed instruction containing language similar to that in Final Instruction 23. As discussed, however, objections to similar
instructions are insufficient to satisfy Rule 51’s requirements.
Additionally, the appellants assert that because they did object to Final
Instruction 23 during the jury
instruction conferenсe, albeit on a different basis than that for which they now seek review, they should nonetheless be able to argue a new error on appeal.
Not so. A party’s failure to object to even that portion of a jury instruction questioned on appeal results in a waiver under Rule 51. See Gagan v. Am.
Cablevision, Inc.,
Civ. P. 51."). The appellants have waived their Rule 51 objection and Final
Instruction 23 is beyond the scope of review.
The appellants also assert that they twice argued the substantive рroblems they had with the law ultimately set forth in Final Instruction 23 during the *6 presentation of evidence. The assertion that these evidentiary arguments serve as or excuse a formal Rule 51 objection does not bar waiver in this case. A party may be exсused from complying with the
formalities of Rule 51 where: (1) the party’s position has been previously made clear to the court; and (2) further objection would be unavailing and futile.
Carter v. Chicago Police Officers M.L.,
Lastly, the appellants filed a Statement of Proceedings pursuant to Rule 10(c) of the Federal Rules of Appellate Procedure in order to incorporate an objection they made to proposed Instruction No. 23 at a pre-trial conference intо the record on appeal. After the appellees filed a Verified Response, the district court entered an order settling the record that acknowledges the appellants’ objection to proposed Instruction Nо. 23 but questions the applicability of Rule 10(c) to pre- trial conferences. See Fed. R. App. P.
10(c) ("If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or prоceedings . . . .") (emphasis added).
We need not address the applicability of Rule 10(c) to such a proceeding, however, because the appellants’ earlier comments do not cure their failure to later record a formаl objection to Instruction No. 23 during the instruction conference. Rule 51 requires that specific objections be made on the record "[a]t the close of the evidence or at such earlier time during the trial as the court reasonably
dirеcts." Fed. R. Civ. P. 51 (emphasis added). In accordance with Rule 51, the judge here afforded the appellants the full opportunity to alert the court to their objections so that any errors could be corrected prior to deliberations. Thе appellants chose not to voice their objections to Instruction 23’s statement of the law on warrantless searches when *7 reasonably directed to do so by the court. The appellants ignored the
mandates of Rule 51 and in so doing, waived any objection to Final Instruction 23.
Conclusion
The judgment of the district court is hereby AFFIRMED.
FOOTNOTE
/1 In addition to consent, the appellees answered the appellants’ allegations with several affirma- tive defenses: (1) good faith; (2) the appel- lants’ own negligence; (3) no action for damages under the Indiana Constitution; (4) qualified immunity; and (5) immunity from tort liability under Indiana statute for the enforcement of a law.