Craig Chestnut v. City of Lowell

United States Court of Appeals
For the First Circuit
Nos. 00-1840
00-1996
CRAIG CHESTNUT,
Plaintiff, Appellee,
v.
CITY OF LOWELL,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT OCURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges,
Cyr, Senior Circuit Judge,
Lynch, Lipez and Howard, Circuit Judges.
Thomas E. Sweeney, City Solicitor, with whom Christine P.
O'Connor, Assistant City Solicitor, was on brief for appellant.
Daniel S. Sharp with whom Elaine Whitfield Sharp, Whitfield
Sharp and Sharp and Randy M. Hitchcock were on brief for appellee.
EN BANC OPINION
September 20, 2002

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Per Curiam. Defendant the City of Lowell ("City"),
claiming immunity to punitive damages under City of Newport v. Fact
Concerts, Inc., 453 U.S. 247 (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. Harwood, 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

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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

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1The 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.
2This is so by judicial construction in this circuit. Davis
v. Rennie, 264 F.3d 86, 100-01 (1st Cir. 2001), cert. denied, 122
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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 (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

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S. Ct. 1909 (2002); see also 9A Wright & 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).
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requirements for plain error, set out in Olano itself, 507 U.S. at
732-36, 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.

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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.
453 U.S. at 267.
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 court 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

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3The 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).
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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 (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 Harwood,
does not involve a constitutional issue, neither did Harwood
disregard a governing and plainly applicable Supreme Court

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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
plaintiff’s option whether to have a new trial on actual damages
against the City (but not against Ciavola)--a trial in which
plaintiff’s attorneys’ fees will be borne by the City. See 42
U.S.C. § 1988 (2000). 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.
- Concurrence follows -

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TORRUELLA, Circuit Judge (Concurring). Though I arrive
at the same destination as the majority, I choose an alternative
route to get there -- a route which, in my view, is both less
conceptually troubling and better supported by existing precedent.
Contrary to the majority opinion, I do not think that
this case can be resolved by relying on the plain error doctrine.
Taken together, the first two prongs of the plain error standard
require the appellant to demonstrate that an obvious error of law
occurred. See Olano, 507 U.S. at 732-36. The majority, the
parties, and the district court are of the view that it is a
foregone conclusion that such an error occurred here. Their
steadfast belief rests on the assumption that the district court's
jury instruction, which made punitive damages available against the
City, directly contradicted the Supreme Court's holding in City of
Newport. According to them, City of Newport essentially stands for
the proposition that punitive damages are unavailable against a
municipality under § 1983.
Notwithstanding their belief, however, City of Newport
never held that punitive damages are unavailable in a § 1983 action
against a municipality. Rather, the Supreme Court ruled that "a
municipality is immune from punitive damages under § 1983." City
of Newport, 453 U.S. at 271 (emphasis added); accord Saldaña-
Sánchez v. López-Gerena, 256 F.3d 1, 11 (1st Cir. 2001)
(characterizing City of Newport as holding that "as a general rule,
municipalities are immune from punitive damages judgments when sued
under § 1983"). Although this distinction may appear

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inconsequential, it is rather significant in light of the
circumstances of this case. If the Supreme Court had held that
punitive damages were unavailable against a municipality in a
§ 1983 suit, then a plaintiff would be filing a frivolous complaint
were he to sue for such damages. See Fed. R. Civ. P. 11(b)(2)
(requiring that the claims in a party's complaint be "warranted by
existing law"). However, the Supreme Court's holding that
municipalities are "immune" from punitive damages under § 1983 has
slightly different implications. Immunity, whether qualified or
absolute, is an affirmative defense that can be forfeited, if not
asserted in a timely manner, or waived. See Cozzo v. Tangipahoa
Parish Council--President Gov't, 279 F.3d 273, 283 (5th Cir. 2002)
(ruling that absolute immunity is an affirmative defense that is
forfeited if not pleaded); Guzmán-Rivera v. Rivera-Cruz, 98 F.3d
664, 667 (1st Cir. 1996) ("Since immunity must be affirmatively
pleaded, it follows that failure to do so can work as a waiver of
the defense."); O'Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir.
1988) (holding that a municipality's indemnification agreement with
defendant constituted a waiver of its municipal immunity defense);
Bell v. City of Milwaukee, 746 F.2d 1205, 1271-72 (7th Cir. 1984)
(holding that state indemnification statute waived municipal
immunity defense with respect to indemnified judgments). Thus,
whereas unavailability implies a limitation on damages altogether,
immunity, in the doctrinal sense, is a defense that can be
forfeited or waived.

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In fact, in Saldaña-Sánchez, we allowed a plaintiff to
seek discovery against a municipality on the claim that the city
had waived its municipal immunity defense under § 1983. 256 F.3d
at 11-12. Our holding rested on the explicit assumption that the
municipal immunity set forth in City of Newport is an affirmative
defense that can be waived. See id. at 12 (noting that precedent
supports the view that waiver of the municipal immunity defense is
possible). Moreover, we questioned whether the city had forfeited
its municipal immunity defense by failing to assert it at or before
trial. See id. Saldaña-Sánchez thus demonstrates how permeable
municipal immunity from punitive damages under § 1983 can be, both
in terms of forfeiture and waiver.
In the instant case, the City never pled an affirmative
defense of immunity in its answer and did not raise this defense at
summary judgment or trial. The City's failure to do so can
reasonably be viewed as a forfeiture of that defense. See, e.g.,
Guzmán-Rivera, 98 F.3d at 667 (holding that the failure of a
government official to timely assert an affirmative defense of
qualified immunity under § 1983 at trial would forfeit the defense
for trial purposes). I therefore cannot conclude that the district
court committed plain error in charging the jury that punitive
damages were available against the City. To hold otherwise would
require me to adopt two seemingly implausible propositions: (1)
that the Supreme Court's holding in City of Newport was perfectly
clear that no punitive damages are ever available under § 1983; and
(2) that Saldaña-Sánchez, which supports the proposition that

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municipal immunity can be forfeited, was so obviously incorrect as
a matter of law that the district court should not have relied on
it. See generally United States v. Turman, 122 F.3d 1167, 1171
(9th Cir. 1997) ("If the district judge would have to be
clairvoyant to detect the error . . . the error is not plain and
defendant must object as a condition for having it considered on
appeal.").
Rather than delving into an abyss of implausibility, I
hold firm to the view that the district court did not commit plain
error in its jury instructions because the City failed to assert,
and thus likely forfeited, its affirmative defense of municipal
immunity from punitive damages.
The majority contends that "this [argument] is surely a
matter of form over substance." The majority elaborates on this
point by offering a hypothetical: if the night before the jury
instructions were given the district court judge had discovered the
City of Newport opinion, "it is hardly likely that [the judge]
would have authorized punitive damages." I respectfully disagree
and offer a derivation of the majority's hypothetical to
demonstrate my point: if the night before the jury instructions
were given, the district court judge obtained a complete
description of the state of the law -- that is, discovered the
municipal "immunity" to punitive damages set forth in City of
Newport and learned about our opinion in Saldaña-Sánchez, which
explicitly discusses how the City of Newport immunity defense can
be waived or forfeited -- I am convinced that the judge would have

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instructed the jury that punitive damages were available, since the
City failed to assert its immunity defense at any stage of the
litigation.
Notwithstanding my unwillingness to find plain error, I
believe that there is an alternative, and more principled, ground
for striking the punitive damages award against the City.
Ordinarily, a party who fails to raise a claim or a defense in the
district court is prohibited from unveiling it in the court of
appeals. See United States v. Slade, 980 F.2d 27, 30 (1st Cir.
1992). "This rule is deeply embedded in our jurisprudence, and we
have invoked it with a near-religious fervor." Harwood, 69 F.3d at
627 (internal citations omitted). However, every rule speaks of an
exception, and this one is no different. In exceptional
circumstances and to prevent a miscarriage of justice, this Court
may relieve a party from his failure to timely assert an
affirmative defense. See, e.g., Correa v. Hosp. San Francisco, 69
F.3d 1184, 1196 (1st Cir. 1995); see generally La Guardia, 902 F.2d
at 1013 (holding that "an appellate court has discretion, in an
exceptional case, to reach virgin issues").
In Harwood, we reached the merits of a legislative
immunity defense even though the defendants failed to raise the
issue in the district court. 69 F.3d at 627-29. We found it
appropriate to reach the untimely immunity issue because: (1) the
omitted issue was purely legal in nature; (2) the belated proffer
raised an issue of constitutional magnitude; (3) the omitted
argument was highly persuasive; (4) there was no inequity or

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special prejudice to the plaintiffs in allowing the defense to be
raised for the first time on appeal; (5) the omission seemed
entirely inadvertent; and (6) the omitted issue implicated a matter
of great public concern. See id.; see also Krynicki, 689 F.2d at
291-92 (allowing a party to raise a virgin issue on appeal because
(1) the issue was purely legal; (2) the omitted argument was highly
persuasive; (3) the omitted issue was likely to arise again in
other cases; and (4) the failure to address the issue would result
in a miscarriage of justice).
Because I believe that these factors are more than
adequately represented in this case, I would excuse the City's
failure to raise its municipal immunity defense below. First,
whether the City should be immune from the $500,000 punitive
damages award is a purely legal issue, cf. Harwood, 69 F.3d at 627
(discussing the issue of legislative immunity as "purely legal in
nature"), and the record necessary to resolve it can be developed
no further. See La Guardia, 902 F.2d at 1013 ("[Whether] the point
can be resolved with certitude on the existing record . . . [is] a
factor that often inclines a court to entertain a pivotal argument
for the first time on appeal."). Second, the omitted issue is
highly persuasive -- that is, if the City is allowed to raise its
municipal immunity defense, it would undoubtedly prove victorious
on the issue given the Supreme Court's holding in City of Newport.

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4Though plaintiff would be stripped of his punitive damages
award if the City is allowed to assert its municipal immunity
defense on appeal, that prejudice is not the type contemplated by
this factor. Rather, we examine whether the plaintiff would suffer
any procedural unfairness if we address the omitted issue. See
Harwood, 69 F.3d at 629 (stating that plaintiffs would not suffer
any "special prejudice or inequity" by addressing the omitted
issue, despite the fact that reaching the issue on appeal meant
that the injunction that plaintiffs obtained in the lower court
would be vacated).
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Third, Chestnut would not suffer any procedural inequity
or special prejudice were we to address this issue.4 Plaintiff
addressed the omitted issue in his brief and set forth his claims
at oral argument. Cf. Singleton v. Wulff, 428 U.S. 106, 120 (1976)
(discussing importance, in determining whether to reach an omitted
issue, of ensuring that the opposing party "ha[s] the opportunity
to present whatever legal arguments he may have" to the court of
appeals). Thus, the absence of unfairness weighs in favor of
addressing the omitted issue.
Fourth, the City's failure to raise its municipal
immunity defense seems entirely inadvertent. Although the omission
had the regrettable effect of prolonging the trial, it did not
produce any tactical advantage to the defendant.
Fifth, and perhaps most importantly, the failure to
address the City's municipal immunity defense would result in a
miscarriage of justice. "[P]unitive damages imposed on a
municipality . . . are likely accompanied by an increase in taxes
or a reduction of public services for the citizens footing the
bill." City of Newport, 453 U.S. at 267. It is convoluted and
unfair to impose the burdens of a punitive damages award on the

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same taxpayers and citizens for whose benefit the wrongdoer was
being chastised. See id. Punishing blameless taxpayers for the
ineptitude of the City's attorney is simply unjust, especially
considering that the taxpayers are in no position to deter similar
negligence in the future.
Because all of these factors converge in the City's
favor, I would excuse the City's failure to assert its immunity
defense below and proceed to address the merits of the defense. In
City of Newport, the Supreme Court unequivocally held that
municipalities are immune from punitive damages in § 1983 actions.
453 U.S. at 271. Chestnut can advance no argument, and I cannot
conceive of any, to attack this proposition. On this basis, I
would find that the City's defense precludes the punitive damages
award in this case, and I would strike those damages.
I therefore concur in the outcome of the majority
opinion.
- Dissent Follows -

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LIPEZ, Circuit Judge, with whom CYR, Senior Circuit
Judge, joins, dissenting. I can understand the impulse to grant
relief to the City here. Together, plaintiff's counsel and counsel
for the City failed to recognize the well-established principle
that local governmental entities are immune from punitive damages
under 42 U.S.C. § 1983. City of Newport v. Fact Concerts, Inc.,
453 U.S. 247 (1981). A very able trial judge also missed the
mistake. Hence, the jury awarded $500,000 in punitive damages
against the City.
No one disputes that, under City of Newport, the City
could have avoided such an award. But that easy avoidance does not
justify relieving the City of the consequences of its mistake.
Whether we treat the City's oversight as a failure to raise the
affirmative defense of City of Newport immunity, or as a failure to
object to a jury instruction under Rule 51, we must affirm the
jury's verdict unless we conclude that allowing the punitive
damages award to stand would constitute a "miscarriage of justice."
Until today, we have reserved that label for "extraordinary" cases.
Teamsters, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21
(1st Cir. 1992). Indeed, it appears that we have never before
found a miscarriage of justice in a civil case involving faulty
jury instructions. See Davis v. Rennie, 264 F.3d 86, 100-01 (1st
Cir. 2001). The circumstances of this case give us no reason to
depart from that settled practice. Therefore, I respectfully
dissent.

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I.
The majority and concurring opinions cite several factors
to support their conclusion that allowing the punitive damages
award to stand would result in a miscarriage of justice. In my
view, those factors -- either individually or in combination --
fall far short of a miscarriage of justice.
A. Innocent Taxpayers
Both the majority and the concurring opinions emphasize
that affirming the punitive damages award would be unjust because
it would punish innocent taxpayers. See City of Newport, 453 U.S.
at 267. Those references to innocent taxpayers seem to have
multiple meanings. The taxpayers are innocent in the sense that
they did not engage in the conduct that the punitive damages are
intended to punish and deter. Instead, the taxpayers -- who do not
need to be deterred from future misconduct -- must pay for the
misdeeds of governmental actors. The taxpayers also are innocent
in the sense that they did not make the mistake in litigation that
resulted in the punitive damages award. Instead, that mistake was
made by the City's counsel.
Both versions of the innocence argument prove too much.
The first version, focusing on the absence of deterrence, is simply
a restatement of a policy reason invoked by the Supreme Court for
the rule that municipalities are immune from punitive damages under
§ 1983. If that policy reason translates into a miscarriage of
justice in every case where punitive damages are wrongly awarded
against a municipality, there should be no pretense of a multi-

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5 Consistent with that view, federal courts in other contexts
have refused to allow public entities to belatedly raise an
affirmative defense to damages, notwithstanding the impact on
innocent taxpayers. See, e.g., Bentley v. Cleveland County Bd. of
County Comm'rs., 41 F.3d 600, 604-05 (10th Cir. 1994) (concluding
that county, having failed to raise affirmative defense of $100,000
statutory damages cap in discrimination suit until after $157,000
verdict was rendered, forfeited its right to that defense);
Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987)
(barring government from belatedly raising statutory cap on medical
malpractice damages).
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factor analysis in such cases. Certainly, this version of
innocence does not distinguish one such case from another.
On an even more basic level, the innocent taxpayer will
always be the victim when some error at trial results in a large
(or larger) damages award against a municipality or other
governmental entity. Thus -- unless we are prepared to recognize
a local-government exception to our rules governing procedural
default -- the mere fact that innocent taxpayers will bear the
brunt of the City's error cannot suffice to establish a miscarriage
of justice here.5
The second version of the innocence argument suffers from
a similar defect in failing to distinguish this case from any other
case subject to plain error review. There are few tenets so well
established in American jurisprudence as the proposition that a
client is bound by the mistakes of its chosen counsel. See, e.g.,
Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 92 (1990)
(explaining that in "our system of representative
litigation . . . each party is deemed bound by the acts of his
lawyer-agent"); Hoult v. Hoult, 57 F.3d 1, 5 (1st Cir. 1995) ("We
have repeatedly held that the acts and omissions of counsel are

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customarily visited upon the client in a civil case." (internal
quotation marks omitted)). Plain error review offers an exception
to that general rule for extraordinary cases. Obviously, the plain
error standard -- and particularly the requirement that relief will
not be available absent a "miscarriage of justice" -- cannot be
satisfied simply because the complaining party (or those who
ultimately bear its costs) will be harmed by its attorney's
mistake. To hold otherwise would deprive the miscarriage of
justice requirement of any meaning, except in the very rare case
where the error was caused by the party itself.
Put simply, the harm to innocent taxpayers here is no
different from the harm that will occur whenever punitive damages
are erroneously awarded against a municipality under § 1983, or
when government counsel makes a costly blunder. While unfortunate,
such harm does not constitute a "peculiar circumstance[]" that
necessitates relief in order to "prevent a clear miscarriage of
justice." Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir. 1966).
B. Windfall to Chestnut
The majority opinion states that the court is justified
in affording relief because this punitive damages award was a
"windfall" for Chestnut, meaning, I gather, that those damages were
unnecessary to compensate him fully. That assertion is grounded in
speculation. We cannot know how the jury would have treated the
compensatory damages question had it had been aware that punitive
damages were unavailable.

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One thing is very clear, however. This was not a runaway
jury. To the contrary, Chestnut presented detailed evidence of the
pay differential between his income as a crane operator and as a
crane mechanic, including expert testimony from an economist who
placed his past and future economic damages at $880,000. That
expert prepared a report that was admitted into evidence regarding
present value calculations of Chestnut's economic damages under
various assumptions.
Thus, considered in combination with the compensatory
damages award, the punitive damages were well within the range of
the compensable injury Chestnut sought to establish at trial. Only
by ignoring reality can it be suggested, as the majority does, that
the compensatory damages award to Chestnut probably was
"uninfluenced by the large punitives." Rather, absent the
availability of punitive damages, the jury may well have awarded
Chestnut substantially more in compensatory damages. We should be
most reluctant to grant relief on the basis of an alleged windfall
when we are unable to determine whether -- and to what extent -- it
actually occurred.
C. Shared Responsibility for the Error
The majority emphasizes that Chestnut's counsel played a
role in causing the error -- a circumstance that it describes as
"somewhat unusual." I see nothing unusual in such shared
responsibility. In the process of assisting the judge with jury
instructions, the parties routinely submit their proposed
instructions. Not uncommonly, one party fails to see an error in

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6 There is no suggestion in the record that Chestnut's counsel
knowingly misrepresented the availability of punitive damages to
the court. If there was such a knowing misrepresentation, this
would be an entirely different case.
-22-
the other party's proposed instructions until after an unfavorable
verdict. The objection is then raised, subject to plain error
review. In that circumstance, both parties share responsibility
for the error. However, until today, that fact has not entered the
miscarriage of justice analysis.
The reason is fairly simple. In any case involving plain
error review, the appellant will argue that the court below made an
error that was so plain or obvious that it should be corrected
notwithstanding the litigants' failure to point it out. Therefore,
as a matter of simple logic, it cannot possibly be enough that
opposing counsel failed to call the court's attention to a clear
legal error or even said affirmatively that there was no error.6
That will be true in any case that makes it past the first prong of
the plain error test; something more is needed in order to
establish a miscarriage of justice.
In addition to being inconsistent with the well-
established plain error standard, the majority's reasoning is also
unfair. In our adversary system, counsel for the City had the
obligation to understand the law and advocate effectively for its
client. It seems odd to equate Chestnut's mistake with the
negligence of the City. To do so unjustly penalizes Chestnut for
failing to protect the interests of the City, his adversary in
litigation.

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D. Precedent
In a final attempt to justify the grant of relief here,
the majority cites Nat'l Ass'n of Social Workers v. Harwood, 69
F.3d 622 (1st Cir. 1995). There, as here, we gave the appellants
the benefit of a governmental immunity notwithstanding their
failure to raise that defense at trial. But that is where the
parallel ends. The appellants in Harwood were state legislators,
and the affirmative defense they tardily invoked was state
legislative immunity. That kind of immunity is notably different
from the immunity to punitive damages at issue here.
First, recognizing that legislative immunity is grounded
in constitutional doctrine, we noted in Harwood that "[w]hen the
Justices initially recognized state legislative immunity as a
component of federal common law, they turned to the Speech or
Debate Clause [U.S. Const. art. I., § 6, cl. 1] for guidance anent
the contours of the doctrine." Harwood, 69 F.3d at 629. The fact
that the defense raised "an issue of constitutional magnitude" was
among the factors we took into consideration in deciding to
consider the legislative immunity defense, notwithstanding the
procedural default. Id. at 627. In contrast, the City of Newport
municipal immunity to punitive damages is a purely common law
defense, grounded in history and policy considerations. See City
of Newport, 453 U.S. at 261 ("In sum, we find that considerations
of history and policy do not support exposing a municipality to
punitive damages for the bad-faith actions of its officials.").

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Second, we explained in Harwood that our decision to
relieve defendants from their procedural default was "fortified by
our recognition that a primary purpose of the immunity is to
prevent courts from intruding into precincts that are
constitutionally reserved to the legislative branch." 69 F.3d at
628 n.6. Thus, we emphasized that the omitted issue of legislative
immunity "implicates matters of great public moment, and touches
upon policies as basic as federalism, comity, and respect for the
independence of democratic institutions." Id. at 628. Relief was
necessary, we explained, to prevent the intrusion of the judicial
branch into "the internal operations of a state legislature." Id.
at 629.
No such separation-of-powers concerns are implicated
here. Rather, we are faced only with the sort of "individualized
harm that occurs whenever the failure seasonably to raise a claim
or defense alters the outcome of a case." Id. at 628 n.5. That is
not enough to warrant relief under the "miscarriage of justice"
standard. Id.
II.
In sum, the majority's invocation of Harwood -- like its
emphasis on innocent taxpayers, Chestnut's so-called "windfall,"
and his shared responsibility for the error -- is insufficient to
qualify this case as extraordinary, or its result as a miscarriage
of justice. That, in itself, is enough to foreclose relief here.
But there is more. Several other factors counsel strongly against
granting relief in this case.

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First, it bears emphasis that the procedural misstep by
the City was particularly egregious. The rules set out in City of
Newport, governing immunity from punitive damages, are hardly a
trap for the unwary. To the contrary, the City had -- and ignored
-- repeated opportunities to invoke that immunity. Chestnut made
his intention to seek punitive damages explicit in his complaint
and then in two subsequent amended complaints. The City never pled
an affirmative defense in its answer to punitive damages under
§ 1983 and did not raise its defense to punitive damages at the
pretrial conference.
During the charge conference conducted prior to closing
arguments, the district court specifically asked counsel whether
punitive damages were available against the City. Yet again the
City failed to assert its immunity defense. Cf. Danco, Inc. v.
Wal-Mart Stores, Inc., 178 F.3d 8, 15 (1st Cir. 1999) (deeming it
material to "plain error" inquiry that legal issue was
"specifically discussed" before trial court). Following the charge
conference, the court recessed for a lunch break prior to
entertaining closing arguments, thereby providing counsel with
another opportunity to review the proposed jury charge and conduct
any legal research suggested thereby.
During closing argument, Chestnut urged the jury to award
punitive damages against the City. The City did not object. Then,
the district court furnished counsel with the verdict form, which
explicitly provided for punitive damages against the City. Still
the City neither objected to the verdict form nor asserted its

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-26-
defense against any award of punitive damages, even though the
proposed charge included an explicit instruction authorizing the
jury to consider a punitive damages award against the City.
Finally, although jury deliberations did not commence until the
next day, which assured that the City had yet more time to examine
the proposed charge and verdict form and undertake whatever legal
research might be required, the City nevertheless failed to object
to the proposed punitive-damages instruction.
A "miscarriage of justice" claim merits little credence
on appeal where the desired relief was so obviously and readily
available in the trial court. In my view, a "miscarriage of
justice" entails a measure of fundamental unfairness. There is no
such unfairness here, however, given that counsel for the City was
accorded every conceivable opportunity to oppose the punitive
damages claim and the related jury instruction.
Second, "[i]t counts heavily against finding plain error
that the party on the other side would be unfairly prejudiced."
Id. Were we simply to vacate the punitive damages award, it is
likely that Chestnut would be prejudiced. As explained above, the
availability of punitive damages may well have affected the
compensatory damages award made by the jury. Consequently, had
punitive damages not been an option, the jury might very well have
determined upon a larger compensatory damages award.
In order to forfend against the prejudice problem, the
majority refuses to strike the punitive damages award, opting
instead for a new trial on the issue of damages should Chestnut

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choose to pursue that option. Although its approach is surely more
just, it is not without its own difficulties. The City sought
alternative relief from the trial court: either (i) that the
punitive damages award be stricken, leaving in place only the
compensatory damages, or (ii) a new trial. On appeal, however, the
City has abandoned its request for alternative relief, opting
instead for its all-or-nothing strategy by requesting that we
strike the punitive damages award on the ground that the
availability of such damages affected neither the presentation of
Chestnut's case nor the amount of compensatory damages awarded by
the jury.
Although we frequently permit appellees to preserve their
trial court judgments by affirming on any basis apparent from the
record (thereby furthering the interests of finality), see, e.g.,
McGurn v. Bell Microproducts, Inc., 284 F.3d 86, 91 (1st Cir.
2002), we consistently have held appellants to the arguments raised
and the relief sought, see, e.g., In re Grand Jury Proceedings, 183
F.3d 71, 73 n.1 (1st Cir. 1999) (declining to consider argument
abandoned on appeal). Here, on the other hand, the majority, sua
sponte, undoes a jury verdict by ordering a new trial. Moreover,
in so doing, it once again reaches out to relieve the City of its
fundamental mistake -- its selection of an ineffective appellate
strategy -- by according relief not sought by the City at the
outset of this appeal.
Finally, established precedents, in our own and other
circuits, plainly prescribe that municipalities may forfeit their

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7 But see Williams v. Butler, 746 F.2d 431, 443-44 (8th Cir.
1984) (affirming district court decision to set aside § 1983
punitive damages award despite failure to object to punitive
damages instruction at trial), on reh'g, 762 F.2d 73 (8th Cir.
1985) (en banc), vacated on other grounds sub nom. City of Little
Rock v. Williams, 475 U.S. 1105 (1986), on remand, Williams v.
Butler, 802 F.2d 296 (8th Cir. 1986) (en banc), vacated on other
grounds sub nom. City of Little Rock v. Williams, 485 U.S. 931
(1988), on remand Williams v. Butler, 863 F.2d 1398 (8th Cir. 1988)
(en banc), cert. denied, City of Little Rock v. Williams, 492 U.S.
906 (1989).
-28-
immunity defense to punitive damages claims under § 1983 due to
their litigation conduct. For instance, in Saldaña-Sánchez v.
Lopez-Gerena, 256 F.3d 1, 11-12 (1st Cir. 2001), we recognized that
the defendants' right to raise City of Newport may have been barred
on procedural grounds. Similarly, in Black v. Stephens, 662 F.2d
181, 184 n.1 (3rd Cir. 1981), the Third Circuit affirmed a § 1983
punitive damages award against the City of Allentown, after having
declined to allow the city to assert its City of Newport defense
due to its failure to do so in the district court. See also
Barnett v. Housing Auth. of Atlanta, 707 F.2d 1571, 1579-81 (11th
Cir. 1983) (declining to relieve appellant of failure to object to
the submission of the § 1983 punitive damages issue to the jury,
and affirming punitive damages award against Atlanta Housing
Authority on account of that "procedural default"), overruled on
other grounds, McKinney v. Pate, 20 F.3d 1550, 1558-59 (11th Cir.
1994).7 I can discern no sound reason for following a different
course in the instant case.

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III.
This is an awkward case, to be sure. The punitive
damages issue should not have been presented to the jury, and the
punitive damages award against the City was plainly contrary to
law. Yet the question with which we are presented is neither
whether the award amounts to plain error, nor whether the interests
of the City were adversely affected. Instead, the issue is whether
there was a miscarriage of justice such that the punitive damages
award must be set aside. For the reasons stated above, I conclude
that no such miscarriage of justice occurred. As I see no reason
to relieve the City of the consequences of its litigation conduct,
the punitive damages award should stand.

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