Steven J. Chestnut, Kimberly M. Cunningham and Bary L. Brown v. Officer Terry Hall, Individually as a Sergeant for the Indianapolis Police Department

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
Department; 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
Easterbrook, 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 supporters 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

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in late 1999. Wackenhut Corporation
("Wackenhut"), a private security 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, a 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 to 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 fourth 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 appellants now seek
reversal, arguing that the district court
abused its discretion in excluding

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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 Department. 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 role 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 evidence of
Tutsie’s past misconduct in this case.
B. Jury Instructions

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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 incorrect 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 objected 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, 86 F.3d 630, 644
(7th Cir. 1996); Nat’l Org. for Women,
Inc. v. Scheidler, 267 F.3d 687, 704 (7th
Cir. 2001) ("[In] a civil trial, not a
criminal trial, there is no equivalent of
’plain error’ review for a challenge that
is forfeited rather than waived.").
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, 93 F.3d 1327, 1332 (7th Cir.
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, 36 F.3d 548, 560 (7th Cir. 1994)
(Rule 51 requires a specific objection on
the record). The specificity requirement
facilitates one of the basic purposes of
Rule 51; to give district courts the
opportunity to amend erroneous jury
instructions, thereby avoiding the need
for further review and potential retrial.
See Haley, 86 F.3d at 644. Objecting to a
"similar" proposed instruction hardly

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satisfies this requirement. To so hold
would be no different than allowing the
appellant to rely on a general objection,
which is insufficient under Rule 51. See
Knox, 93 F.3d at 1332; Maltby, 36 F.3d at
560; Haley, 86 F.3d at 644. Because the
appellants failed to satisfy the
requirements of Rule 51, any argument
regarding Final Instruction 20 is waived.
See Susan Wakeen Doll Co. v. Ashton-Drake
Galleries, 272 F.3d 441, 453 (7th Cir.
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 proposed 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 conference, 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., 77 F.3d 951, 966 (7th
Cir. 1996) (finding Rule 51 objection
waived where party conceded that he did
not object to that portion of the jury
instruction questioned on appeal); Susan
Wakeen Doll Co., 272 F.3d at 453 (party
waived any appellate argument regarding
clause to which no objection was made at
instruction conference); cf. Knox, 93
F.3d at 1334 ("We agree . . . that the
State’s trial objection was not specific
enough to alert the district court to the
more refined argument it is now making
[on appeal], and thus that the objection
did not meet the requirements of Fed. R.
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 problems
they had with the law ultimately set
forth in Final Instruction 23 during the

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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 excused 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.,
165 F.3d 1071, 1078 (7th Cir. 1998)
(citations omitted). Even if we were to
assume that the appellants’ arguments
regarding Final Instruction 23 were made
sufficiently clear to the district court
(which is questionable), the appellants
have made absolutely no showing that a
timely, specific and formal Rule 51
objection would have been unavailing and
futile. This is especially true where, as
here, the appellants were afforded and
failed to seize the opportunity to make a
specific, formal objection during the
instruction conference at trial.
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 into 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 No. 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
proceedings . . . .") (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 formal 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
directs." 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. The
appellants chose not to voice their
objections to Instruction 23’s statement
of the law on warrantless searches when

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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.

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