940 F2d 667 Bluestein v. Groover F

940 F.2d 667

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Rose BLUESTEIN, individually and as heir, mother, next
friend, and as administratrix of the Estate of Frank
Bluestein deceased, and Louis Steve Bluestein, individually
and as father and heir of Frank Bluestein, deceased,
v.
Richard David GROOVER, individually and as a Police Officer
of the Las Vegas Metropolitan Police Department, Eugene F.
Smith, individually, and as Sheriff of Clark County, Nevada
and as chairman of the Las Vegas Metropolitan Police
Commission, and as Chief Administrative Officer and as Chief
Law Enforcement Officer of the Las Vegas Metropolitan Police
Department, et al., Defendants-Appellees.

No. 88-15048.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 12, 1991.
Decided July 25, 1991.
As Amended on Denial of Rehearing and Rehearing En Banc
Oct. 4, 1991.

Before SCHROEDER, CANBY and NOONAN, Circuit Judges.

1

MEMORANDUM*

2

Rose M. Lewis and Steven Bluestein appeal from a judgment for the defendants in their civil rights action against the Las Vegas Metropolitan Police Department (LVMPD) and individual Officers Smith, Groover, McCarthy and Clifford. Trial was to a jury. The Bluesteins argue that the trial court committed error in entering directed verdicts in favor of the defendants on the plaintiffs' individual capacity claims and on the punitive damages claims. The plaintiffs also challenge various jury instructions, the conduct of the court, comments by the defense counsel, the sufficiency of the evidence supporting the jury verdict, and the denial of their motion for a new trial. We affirm.

ANALYSIS

A. Directed verdicts1

3

1. Directed Verdict on Fourth Amendment Claims

4

The district court granted the defendants' motions for directed verdicts on the plaintiffs' individual capacity claims and fourth amendment claims. The Bluesteins challenge both directed verdicts.

5

After the trial, the Supreme Court decided Graham v. Connor, 490 U.S. 386 (1989). Under Graham, it is clear that all of the Bluesteins' excessive force claims against the officers were fourth amendment claims. Thus, the directed verdict on the individual capacity claims is duplicated by the directed verdict on the fourth amendment claims, and we do not discuss it separately.

6

The Bluesteins sued the defendants in their individual and official capacities for excessive use of force. The defendants' argument that the action was an official capacity suit is disproved by examining the pleadings, pretrial orders, and course of proceedings. Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985). Many documents, including the complaint and pretrial order, specify that the officers are being sued in both official and personal capacities. We therefore address the propriety of the district court's directed verdict on the fourth amendment claims as it applied to the plaintiffs' official and individual capacity claims.

7

a. Fourth Amendment Claims Against the Officers in their Official Capacities

8

After de novo review, we conclude that any error committed by the district court in directing a verdict against the defendants in their official capacity was harmless. To find that the defendants, in their official capacity, violated Frank Bluestein's fourth amendment rights, the jury would have to find that the officers acted pursuant to a plan, policy, or custom. Kentucky v. Graham, 437 U.S. 159, 166 (1985). The plaintiffs presented their official capacity claims to the jury as claims arising under the fourteenth amendment. The jury rejected the claims, specifically finding that the officers had not adopted and were not acting pursuant to a plan, policy or custom. See Interrogatory 1, question 1. Because fourth amendment instructions would not affect the jury's consideration of this issue, the plaintiffs' official capacity claims based on the fourth amendment would similarly fail.

9

b. Fourth Amendment Claims Against the Officers in their Individual Capacities

10

We also agree with the plaintiffs that the district court erred in directing a verdict in favor of the officers in their individual capacities. The Bluesteins presented substantial evidence that Officers Smith and Groover failed to identify themselves as police officers, thereby creating a dangerous situation which caused the death of Frank Bluestein. See Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir.1985), cert. denied, 475 U.S. 1122 (1986). The Bluesteins provided uncontroverted evidence that the officers wore plain clothes and drove an unmarked car with no outward indicia of authority. Although the officers claimed that they activated a red light to pull Frank over, announced they were police officers, and ordered Frank to drop his gun, the Bluesteins produced witnesses from the apartment complex who testified that they did not hear the officers shout and did not see the officers' red flashing light until after the shooting had occurred. From this evidence, the jury could conclude that Smith and Groover, in their individual capacities, violated Frank Bluestein's fourth amendment rights. See e.g., Samples v. City of Atlanta, 846 F.2d 1328 (11th Cir.1988); Price v. United States, 728 F.2d 385 (6th Cir.1984). The only evidence contradicting the Bluesteins' claim was the testimony of Smith and Groover. Because resolution of the conflicting testimony would require the jury to judge the credibility of the officers and the witnesses, it was improper for the district court to direct a verdict in favor of Smith and Groover on this claim. See Samarzia v. Clark County, 859 F.2d 88, 90 (9th Cir.1988).

11

The district court erred in directing a verdict in favor of Clifford and McCarthy in their individual capacities because the Bluesteins presented substantial evidence from which the jury could have found that the supervisors knew that the undercover officers were making unconstitutional stops and failed to take corrective action. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (supervisor may be liable for the constitutional violations of his subordinates if the supervisor knew of the violations and failed to act to prevent them). The Bluesteins introduced witnesses who testified that undercover officers had pulled them over, either without probable cause or for minor traffic violations, to ascertain their identity or the identity of the occupants of the vehicle. In several instances, the officers had arrested the drivers for minor traffic violations and booked them into jail after subjecting them to strip searches. Finally, the Bluesteins showed that Clifford and McCarthy were aware of this illegal activity, but failed to act to prevent the stops. In defense, the defendants produced the testimony of the officers responsible for the stops as well as Sheriff McCarthy and Commander Clifford. Again, the resolution of the conflicting testimony would require the jury to judge the witnesses' credibility. Consequently, the district court erred in directing a verdict in favor of McCarthy and Clifford on this issue. Samarzia, 859 F.2d at 90.

12

Nonetheless, after reviewing the record, the jury's verdict, and the circumstances of this particular case, we conclude that the erroneously directed verdicts on the individual capacity claims were harmless. See Fed.R.Civ.P. 61 (no erroneous ruling is ground for granting a new trial unless refusal to take such action appears to the court inconsistent with substantial justice); Pherson v. Goodyear Tire and Rubber Co., 590 F.2d 756, 761 (9th Cir.1978). This case was not crisply tried by either party. On appeal, the plaintiffs rely on the confusion in the record to support their claims for reversal. Although this confusion gives some life to some of the plaintiffs' arguments, we conclude that the jury considered and rejected the plaintiffs' individual capacity claims.

13

Despite the directed verdict, it appears from the record that the plaintiffs' individual capacity claims were submitted to the jury. On March 2, the day set for closing argument, the Bluesteins pressed the court to submit the issue of individual liability to the jury. Without referring to the directed verdict on the individual capacity claims, the plaintiffs objected to the court's interrogatories and jury instructions because they did not permit the jury to find Officers Smith and Groover liable in their individual capacities. The Bluesteins' objection states:

14

[P]laintiffs object to the court's instruction[s] ... on the ground that they totally eliminate[d] the possibility of the jury returning a verdict in favor of the Plaintiffs based upon Smith and Groover violating Frank Bluestein's constitutional right not to be deprived of his right to life without due process of life [sic], separate and apart from a policy practice, and procedure, a valid claim that has not been abandoned by Plaintiffs or stricken by the Court.

15

According to the defendants, on March 3 the court addressed the plaintiffs' concerns in court, outside the presence of the jury. The court indicated that it would allow the jury to consider the plaintiffs' individual capacity claims. The court added instruction 25, which instructed the jury that they could find Officers Smith and Groover liable even if the officers were acting independent of a plan or policy.2 The court also drafted Interrogatory III. The three questions contained in this interrogatory address the officers' liability in their individual capacities. In addition, the court instructed the jury, without objection from either party, on the defense of qualified immunity. The plaintiffs' objections and the court's response lead us to conclude that the plaintiffs succeeded in presenting their individual capacity claims to the jury.

16

The jury was instructed to determine whether the defendants, in their individual capacities, violated Frank Bluestein's rights under substantive due process standards. It appears that the plaintiffs were content to have their individual capacity claims submitted to the jury as claims arising under the fourteenth amendment.3 Although they did not object to the instructions, the plaintiffs contend that the substantive due process instructions constitute plain error requiring reversal.

17

Rule 51 provides that, "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." Fed.R.Civ.P. 51. A long line of Ninth Circuit cases hold that we do not review jury instructions for plain error in civil cases where the party failed to object to the instruction at the trial court level. See the cases cited in Hammer v. Gross, 932 F.2d 842, 847 (9th Cir.1991) (en banc). Because the plaintiffs failed to object to the substantive due process instruction, we do not review these instructions on appeal.

18

The Bluesteins assert that Reed v. Hoy, 891 F.2d 1421 (9th Cir.1989), compels us to reverse and remand this case for retrial because there the court stated that it was plain error to instruct the jury to apply substantive due process standards to excessive force claims. We disagree that Reed establishes a plain error exception to Rule 51. As explained in Hammer, the Reed court did not employ plain error as a ground of reversal, nor was the doctrine essential to the decision. Hammer, 932 F.2d at 847-48.

19

After instructions and deliberations, the jury found that Officers Smith and Groover, in their individual capacities, did not violate Frank Bluestein's constitutional rights. See Interrogatory III, question 9. This finding supports our conclusion that the directed verdict in favor of Smith and Groover in their individual capacities was harmless. In addition, the jury's finding that Officers Groover and Smith were entitled to the defense of qualified immunity renders the directed verdict in favor of these two officers harmless.

20

The Bluesteins correctly assert that the issue of qualified immunity should not have been submitted to the jury after the district court directed verdicts in favor of the defendants on all individual capacity claims. Nonetheless, as stated above, we believe that the individual capacity claims were presented to the jury. In any event, the Bluesteins failed to object to the court's instructing the jury on this issue. For this reason, we will not review the alleged error. The sole exception to this rule, set forth in Brown v. Avemco Inv. Corp., 603 F.2d 1367 (9th Cir.1979), is not applicable in the present case because the Bluesteins did not make known any concern with the court's submission of the qualified immunity instructions.

21

On the basis of the foregoing discussion, we also conclude that the directed verdict in favor of Clifford and McCarthy in their individual capacities was harmless. To prove that the supervisors were liable in their individual capacities, the Bluesteins had to show, among other things, that the supervisors' indifference proximately caused the constitutional violation. See Slakan v. Porter, 737 F.2d 368, 373 (4th Cir.1984), cert. denied, 470 U.S. 1035 (1985). The jury's finding that Officers Smith and Groover did not commit a constitutional violation precludes a finding that the supervisors' conduct proximately caused the violation.

2. Directed Verdict on Punitive Damages

22

The Bluesteins argue that the district court erred in granting a directed verdict in favor of the defendants. As discussed above, the jury concluded that no constitutional violation occurred. Therefore, the directed verdict was harmless.

B. Jury Instructions

1. Qualified Immunity Instruction

23

In addition to challenging to the court's instructing the jury on the issue of qualified immunity, discussed supra, the Bluesteins find fault with the substance of the court's qualified immunity instruction.4 The Bluesteins argue that the qualified immunity instruction tendered by the defendants, the court's instruction numbered 68, misstated the law. In addition, the Bluesteins assert that the instruction takes language from Malley v. Briggs, 475 U.S. 335 (1986), out of context.

24

The Bluesteins contend that instruction 68 misstates the law because it contained references to the officers' subjective beliefs. The Bluesteins object to that portion of the instruction which provides that an officer is entitled to immunity if "he has acted with a good faith belief "that his actions were lawful." The full paragraph states:

25

An official ... is entitled to a [sic] qualified immunity where he has acted with a good faith belief that his actions were within his lawful authority and that reasonable grounds existed for this belief based upon objective circumstances at the time he acted.

26

Although an officer's subjective beliefs are not relevant in determining whether the officer is entitled to the good faith defense, Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982), we conclude that the erroneous language does not constitute reversible error in the present case. First, we note that the Bluesteins submitted the identical language in their proposed instruction numbered 130, which was given as the court's instruction number 69. See 999 v. C.I.T. Corp., 776 F.2d 866, 870 (9th Cir.1985) (a party requesting an instruction cannot complain of any error in it). Second, we conclude that the charge as a whole stated the law fairly to the Bluesteins. The other two qualified immunity instructions, which were submitted by the Bluesteins, required the jury to determine whether the officers' belief that their conduct was lawful was reasonable in light of clearly established law. Instruction 67 provided in part:

27

If you find by a preponderance of the evidence that defendants' conduct violated clearly established constitutional rights, and that defendants reasonably knew, or should have known, that their conduct would violate clearly established constitutional rights, you must find that defendants were not acting in good faith and are, therefore, not immune.

Instruction 69 further provided in part:

28

The defendants have the burden of proving that the officers reasonably believed that the use of force was (1) justified and (2) not excessive. Reasonableness must be viewed in light of all the circumstances existing at the time of the incident. It is not based on hindsight. If police officers (1) believe that a certain amount of force is necessary to make an arrest, (2) believe that use of that amount of force is lawful under the circumstances, and (3) had reasonable grounds for each of the foregoing beliefs, then they are entitled to the defense of good faith even if the use of force turns out, after the fact, to have been illegal or excessive.

29

See Thorsted v. Kelly, 858 F.2d 571, 576 (9th Cir.1988).

30

We do not address the plaintiffs' argument that language from Malley v. Briggs should not have been included in instruction 68. The plaintiffs did not raise this specific objection below. See Benigni v. City of Hemet, 879 F.2d 473, 475-76 (9th Cir.1988).

3. Self-Defense Instruction

31

The Bluesteins argue that the court did not adequately instruct the jury that Frank Bluestein was entitled to use self-defense if he reasonably believed that he was being subjected to a hostile attack rather than being arrested. Specifically, the plaintiffs object to the court's modification of instruction 103 and the court's failure to give plaintiffs' proposed instructions numbered 104, 105 and 107.5 The Bluesteins assert that the court's self-defense instruction impermissibly shifted the burden to the plaintiffs and may have led the jury to believe that the court favored the defendants.

32

As long as the jury is not misled, prejudiced, or confused, a party is not entitled to have the jury instructed in the particular language of its choice. Peraza v. Delameter, 722 F.2d 1455, 1457 (9th Cir.1984). Reviewing the charge as a whole, we conclude that the district court did not abuse its discretion in formulating the self-defense charge.6 Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 213 (9th Cir.1988). The jury was adequately informed that Frank Bluestein was entitled to use self-defense in response to the officers' stop if Bluestein was unaware that he was being stopped by police officers. The court gave two instructions regarding this issue. Instruction 51 stated:

33

Where an officer fails to identify himself or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directed either at the person or his property.

Instruction 52 further provided:

34

A person who has no actual knowledge, or reason to believe, that he is being stopped by police officers, may be justified in resisting what the circumstances indicate to be a hostile attack upon his person.

35

We do not review the court's decision to give plaintiffs' instruction 106, rather than 107. It is not clear from the record whether the court first informed the parties of this change during closing argument or whether the plaintiffs' simply failed to notice that the court had included instruction 106 in its proposed jury instructions. In either event, the Bluesteins failed to object to the court's instruction. In fact, the plaintiffs consented when the court informed them that they could read instruction 106, but not 107, to the jury.

36

The Bluesteins argue that an objection would have been futile, and futile objections are not required. We do not agree that objection to the court's withdrawal of instruction 107 would have been futile. First, the fact that the district court overruled other unrelated objections does not excuse the Bluesteins from their duty to alert the court to possible errors. Second, as noted earlier, it is not clear that the court withdrew instruction 107 during the plaintiffs' closing argument. Although the plaintiffs objected to several of the court's proposed instructions and interrogatories, they did not object to the court's decision to give instruction 106 instead of 107.

37

The Bluesteins do not specify how the instruction impermissibly shifted the burden or how the instructions led the jury to believe the court favored the defendants. Moreover, the Bluesteins did not raise this objection below. Accordingly, we do not address this challenge.

4. Negligence Instructions

38

The Bluesteins argue that the court erred in giving instructions 38, 39, and 77 which defined negligence, because negligence was not at issue in the case. According to the plaintiffs, the court's instructions on negligence may have given the jury the impression that the judge thought the defendants' actions were negligent. The plaintiffs raised this objection before the district court.

39

The three instructions provide that negligence cannot form the basis for liability under 42 U.S.C. Sec. 1983. The Bluesteins concede that this is a proper statement of the law. See Daniels v. Williams, 474 U.S. 327, 328 (1986); Maddox v. City of Los Angeles, 792 F.2d 1408, 1413 (9th Cir.1986). Because a judge's repetition to the jury of an instruction that correctly states the law is not reversible error, Lewy v. Southern Pacific Transp. Co., 799 F.2d 1281, 1299 (9th Cir.1986), we conclude that the district court did not err in giving these instructions. See Richardson v. City of Indianapolis, 658 F.2d 494, 502-03 n. 1 (7th Cir.1981), cert. denied, 455 U.S. 945 (1982).

4. Miscellaneous challenges

40

The Bluesteins argue that the court's instruction numbered 56 was unnecessary because the proper standard was set forth in instruction number 55. Additionally, the plaintiffs argue that the second paragraph of instruction 56 conflicts with instruction 55 and Interrogatory I.

41

At trial, the Bluesteins objected to instruction 56 on the ground that it was confusing and unclear. The plaintiffs did not inform the district court that the instruction was unnecessary because of instruction 55 or that instructions 55 and 56 were in conflict. The plaintiffs' vague trial objection is not sufficient to preserve the plaintiffs' present challenges for appeal. See Pierce Packing Co. v. John Morrell & Co., 633 F.2d 1362, 1365 (9th Cir.1980).

42

The Bluesteins also argue that the district court committed error in failing to give their proposed instructions numbered 99, 100, 101, 111, 112, and 113, and in adopting the defendants' proposed instruction 30. Because the Bluesteins did not object to the court's failure to give these instructions or to the defendants' proposed instruction 30, the plaintiffs have waived review of these issues on appeal.

43

Finally, the plaintiffs summarily challenge instructions 46, 59, 63, 78, and 81. Because we have not been made aware of the bases for these objections, we do not review these alleged errors.

C. Sufficiency of the Evidence

44

The Bluesteins argue that the jury verdict in favor of the defendants on the official capacity claims was against the weight of the evidence. The plaintiffs assert that there was ample evidence that the illegal pretextual stops were a widespread practice condoned by the policy makers.

45

This argument is waived because the Bluesteins' failed properly to preserve the issue for appeal by making a motion for a directed verdict at the close of all the evidence. See Cabrales v. County of Los Angeles, 864 F.2d 1454, 1459 (9th Cir.1988).

46

In any event, we note that even if the jury had found that a custom or policy existed, the plaintiffs could not prevail. To establish a prima facie official capacity claim, the plaintiffs must show that the policy or practice caused the constitutional violation. Here, the jury found no constitutional violation.

D. Prejudice

47

The Bluesteins assert that the district court erred in refusing to grant a new trial because numerous remarks by the court and defense counsel prejudiced the jury and denied them a fair trial. The Bluesteins argue that the court's comments precluded counsel from inquiry on relevant issues and were sufficiently prejudicial to require reversal. In particular, the plaintiffs assert that many of the court's comments occurred while Mr. Gentile was attempting to elicit testimony from two hostile, adverse witnesses, Clifford and McCarthy.

48

After reviewing the alleged improprieties, we conclude that the district court's conduct was within its discretion to control the trial proceedings. The conduct at issue includes the court's questioning witnesses, excluding evidence and admonishing counsel for not following the court's instructions. We disagree that the court's comments precluded counsel from inquiring into relevant issues. The court's evidentiary rulings, which the plaintiffs do not challenge, and not the court's comments, ended the plaintiffs' inquiry. Within the ten week trial, the court did, in several instances, criticize counsel's skill, trial preparedness, and failure to follow the court's instructions. However, these comments did not relate to the merits of the case. See, e.g., Ward v. Westland Plastics, Inc., 651 F.2d 1266, 1271-72 (9th Cir.1980). Moreover, the court twice instructed the jury to ignore its remarks. Because we conclude that the court's intervention did not demonstrate actual bias or advocacy or partiality, we reject this challenge. See Shad v. Dean Witter Reynolds Inc., 799 F.2d 525, 532 (9th Cir.1986).

49

The Bluesteins' argue that they were prejudiced by the broad latitude the trial court granted to defense counsel on cross-examination and by the trial court's failure to cure prejudicial comments by defense counsel in closing. The plaintiffs first assert that defense counsel, with the court's acquiescence, tried to focus the jurors' attention on various witnesses' involvement with organized crime figures. The Bluesteins point to ten instances where defense counsel questioned witnesses on this issue.

50

First, we note that the plaintiffs only objected to four of the ten occurrences they now challenge. At least once when the Bluesteins did object, the court sustained the objection. Second, the plaintiffs' themselves raised the issue of witnesses' connections to organized crime. Part of the plaintiffs' claim was that the police, without probable cause, were stopping motorists who they believed had ties to organized crime. Under these circumstances, we do not believe that the plaintiffs were prejudiced by this line of questioning.

51

As to the Bluesteins' challenge to comments made in closing arguments, we conclude that even if a part of defense counsel's response was improper and may have been intended to arouse some sympathy in the jury, it is extremely unlikely that this one statement influenced the jury to disregard all of the evidence presented in the ten week trial and to return a verdict in favor of the defendants. Officer Jackson was not a defendant in the action and his testimony was not necessary to establish either the plaintiffs' case or the defendants' defense. The judge instructed the attorneys to drop the subject and proceed.

52

To warrant reversal on the ground of attorney misconduct, the "flavor of misconduct must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict." Kehr v. Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1286 (9th Cir.1984). The four references to organized crime and the one comment by defense counsel in closing do not rise to this level. We do not believe that these few instances prejudiced the outcome of the ten-week trial.

53

E. Evidentiary Rulings and Motion for New Trial

54

The plaintiffs summarily object to numerous evidentiary rulings by the district court including its: (1) refusing to allow the plaintiffs to make offers of proof; (2) denying the plaintiffs an opportunity to introduce the defendants' Internal Affairs file into evidence; (3) allowing the defendants to show the film entitled "Shooting Decisions"; (4) refusing to allow the plaintiffs' expert witness diGrazia to testify as to an ultimate issue of fact; (5) precluding rebuttal testimony by the plaintiffs on certain damage issues; and (6) denying the plaintiffs' motion for a new trial. We reject all of these challenges.

55

The Bluesteins cite no authority for the proposition that a court errs by denying a plaintiff the opportunity to make an offer of proof and we have found no case law in support.

56

The Bluesteins have not identified where in the record the court denied the plaintiffs the opportunity to introduce the defendants' Internal Affairs files. Nor have they explained how the court's decision was in error. Accordingly, we do not review this issue. See Palmerin v. City of Riverside, 794 F.2d 1409, 1414 (9th Cir.1986).

57

Similarly, the plaintiffs do not explain how the film was prejudicial or make any arguments regarding its admissibility. We therefore decline to review this issue. Id.

58

The trial court ruled that diGrazia could not testify that: (1) the defendants' conduct proximately caused Frank Bluestein's death; (2) the conduct of Smith and Groover reflected a conscious and reckless disregard of Frank Bluestein's rights; and (3) the policies and practices created and condoned by McCarthy and Clifford proximately caused Frank Bluestein's death. Although we have held that an expert may testify that an officer was reckless and that there was a causal link between the recklessness and the plaintiff's injuries, Davis v. Mason County, 927 F.2d 1473, 1484-85 (9th Cir.1991), in the present case we conclude that any error in the court's ruling was harmless because diGrazia gave the jury the facts needed to draw its own conclusions regarding these three issues. See Little Oil Co., Inc. v. Atlantic Richfield Co., 852 F.2d 441, 446-47 (9th Cir.1988).7 DiGrazia was permitted to testify at length regarding ultimate factual issues presented by the case. DiGrazia testified as to the nationally established police practices and procedures, the practices and procedures of the metropolitan police department, that Nevada Police Department practices deviated from nationally accepted police practices, and that Officers Clifford and McCarthy were aware of and condoned the Nevada practices. He further testified that the conduct of Officers' Smith and Groover in chasing and stopping Frank Bluestein violated national standards and created a dangerous situation because the motorist would believe that his pursuers were not police officers.

59

The plaintiffs argue that the court improperly precluded rebuttal testimony and instead struck the testimony of Stanley Smith. Because the plaintiffs have failed to identify where in the record this occurred or to explain how the court's ruling was in error, we do not address this argument.

60

Finally, we conclude that the district court did not abuse its discretion in denying the plaintiffs' motion for a new trial. Although this trial was far from perfect, the plaintiffs have failed to preserve most of their challenges to the court's rulings. As to those claims which were preserved, we agree with the district court that any errors were not sufficiently prejudicial as to warrant a new trial. See Chalmers v. City of Los Angeles, 762 F.2d 753 (9th Cir.1985).

The decision of the district court is

AFFIRMED.8

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

1

We initially reject defendants' argument that the Bluesteins waived their objection to the directed verdicts because they did not comply with the local district court rules. Nevada District Court Rule 140-5, which requires a party opposing a motion to file a memorandum of points and authorities, is not applicable when the motion is made during trial. Nev.Dist.Ct.R. 140-1

2

Instruction 25 provides in part:

Plaintiffs further claim that defendants Smith and Groover, acting officially as police officers, were carrying out the alleged unconstitutional plan of June 9, 1980, and that in carrying out said plan they caused the death of Frank Bluestein when they followed, pursued and stopped the motor vehicle of Frank Bluestein and shot Frank Bluestein.

In a addition, plaintiffs' [sic] claim that entirely apart from the claimed unconstitutional plan, that is if there were no plan, that Smith and Groover acting officially as police officers shot Frank Bluestein to death knowingly and deliberately thereby depriving him of his life and without due process of law.

3

We do note, however, that there is no indication that the Bluesteins objected to the court's holding that the claims arose solely under the fourteenth amendment. After the directed verdict was entered, the plaintiffs did not object to the court's jury instructions that included substantive due process language, nor did plaintiffs submit jury instructions setting forth the fourth amendment standard. In contrast, although the court had directed a verdict on the Bluesteins' individual capacity claims, the Bluesteins continued to challenge the correctness of the court's rulings; the Bluesteins objected to the court's proposed jury instructions and interrogatories and persuaded the court to instruct the jury on the individual capacity claims

4

The district court gave three instructions on qualified immunity--two of the plaintiffs' proposed instructions, one of the defendants'

5

The plaintiffs offered five instructions on Frank Bluestein's use of self defense--numbers 103, 104, 105, 106, and 107. The court removed one sentence contained in instruction 103, and gave instructions 107 and modified 103

6

The Bluesteins erroneously assert that we should review the court's failure to submit their requested instructions de novo. The plaintiffs cite Benigni v. City of Hemet, 879 F.2d 473 (9th Cir.1988). Benigni states only that the court's failure to submit a proper jury instruction is reviewable de novo. 879 F.2d at 478-79; see also 999 v. C.I.T., 776 F.2d at 871. Here, the court instructed the jury on the issue of self-defense. Because the plaintiffs' challenges go to the court's formulation of that instruction, our review is under the abuse of discretion standard. Benigni, 879 F.2d at 478-79

7

We do not imply that the court abused its discretion in limiting diGrazia's testimony on these three issues. A district court enjoys broad discretion in admitting or rejecting evidence, including the testimony of experts, Ward v. Westland Plastics, Inc., 651 F.2d 1266, 1270 (9th Cir.1980), and that decision must be reviewed in the context of the case as a whole

8

The request of defendants for attorneys' fees as prevailing parties in a civil rights action, see 42 U.S.C. Sec. 1988, is denied. The Bluesteins' action was not frivolous, vexatious, or brought to harass or embarrass the defendants. See Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir.1989)