Petitioners' counsel expressly objected to the authorization of damages based on the value of constitutional rights, on the ground that such damages were impermissible under Carey v. Piphus, supra, and on the ground that they required the jury to "speculate as to what the value of the Constitutional right is." App. 97-98. The District Court responded by stating that it relied on Herrera v. Valentine, supra, at 1227, and on Corriz v. Naranjo, 667 F.2d 892 (CA10), cert. dism'd, 458 U.S. 1123 (1982). App. 98. Both of those cases held that jury Page 305 instructions similar to those used here were permissible under Carey.
At that late hour a petition that could have been presented long before was thrust upon a judge who had no previous contact with the case. See Brooks v. Estelle, 459 U.S. 1061 (1982), and Mitchell v. Lawrence, 458 U.S. 1123 (1982). This Court is fully familiar with the records in the state and federal courts on Evans' case; the claim now presented is wholly without merit and the Court appropriately vacates the stay of execution granted yesterday.
Those objections were manifestly insufficient to alert the trial court to the need for differentiation between full damages and accessory damages. See Corriz v. Naranjo, 667 F.2d 892, 896 (10th Cir. 1981) (objection to sufficiency of § 1983 damages claim held inadequate to preserve for review issue of whether damage award was duplicative), cert. dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982); Fed.R.Civ.P. 51; see also CVD, Inc. v. Raytheon Co., 769 F.2d 842, 858-59 (1st Cir. 1985) (to preserve objection to jury instructions for appeal, aggrieved party must distinctly state the ground of objection before the jury retires), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 89 L.Ed.2d 312 (1986); Jordan v. U.S. Lines, Inc., 738 F.2d 48, 51 (1st Cir. 1984) (similar). 3.
United States v. Young, 470, U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985). See also Corriz v. Naranjo, 667 F.2d 892, 901 (10th Cir.) (Doyle, J., specially concurring) (instructions not properly objected to at trial to be reviewed where error may well have been a generating factor which culminated in unwarranted verdict or where a "miscarriage of justice may occur"), cert. dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982); 1 S. Childress M. Davis, Standards of Review § 4.3 at 241-42 (1986) (federal appeals courts have fashioned a plain error exception in both criminal and civil cases by which to review unpreserved error for a miscarriage of justice). Because no reasonable jury could find that Melton's testimony was the cause of his discharge on the evidence before it, the district court erred in failing to grant judgment to defendants on that point as a matter of law.
Furthermore, the concept of substantial equality has been given consideration in reapportionment cases which cast some light on the issue we must decide, despite the differing context. In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), for example, the Supreme Court, in requiring "substantial equality of population among the various [legislative] districts," id. at 579, 84 S.Ct. at 1390, ruled that "[m]athematical exactness or precision" was not required, provided that the districts were "as nearly of equal population as is practicable," id. at 577, 84 S.Ct. at 1390; see Gaffney v. Cummings, 412 U.S. 735, 745-46, 93 S.Ct. 2321, 2327-28, 37 L.Ed.2d 298 (1973) ("substantial equality" consistent with "minor deviations from mathematical equality"); Flateau v. Anderson, 537 F.Supp. 257, 263 (S.D.N.Y.) (same), appeal dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982). We conclude (1) that the "substantially equal prominence" provision of paragraph 3 of the consent decree precludes use of the word "Canterbury" by Limited and its privies without appending the words "of New Zealand" in characters that are not significantly different in size or any other feature affecting the prominence of the display; and (2) that the design logo reproduced hereinabove, which purports to comply with paragraph 3 of the consent decree, does not satisfy this requirement.
This specific objection requirement provides the trial court with an opportunity to make proper changes to the jury instructions. Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 924 (10th Cir.), cert. denied, 469 U.S. 853, 105 S.Ct. 176, 83 L.Ed.2d 110 (1984); Corriz v. Naranjo, 667 F.2d 892, 896 (10th Cir. 1981), cert. dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982); Rogers v. Northern Rio Arriba Elec. Coop., Inc., 580 F.2d 1039, 1042 (10th Cir. 1978). Accordingly, we have held that "the grounds stated in [an] objection must be obvious, plain, or unmistakable."
We joined two other circuits in finding such an unreasonable seizure to be closely analogous to the common law tort of assault and battery, for which general damages were presumed from the violation of the victim's right to bodily integrity. See Corriz v. Naranjo, 667 F.2d 892, 897-98 (10th Cir. 1981), cert. dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982); Herrera v. Valentine, 653 F.2d 1220, 1227-31 (8th Cir. 1981). In the present case, we are confronted with a violation of the First Amendment guarantee of free speech and association.
Here we need only distinguish the actions of the District which caused a deprivation of substantive rights from those actions initiated by third parties. This Circuit held without elaboration in Corriz v. Naranjo, 667 F.2d 892, 897 (10th Cir. 1981), cert. dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982), that presumed damages are available for violations of substantive constitutional rights. Corriz involved the deprivation of liberty interests in bodily integrity and arrest based on probable cause.
Here there was a violation of plaintiff's right to be free from unreasonable searches and seizures, and, as a result, he may recover damages for that violation. See Corriz v. Naranjo, 667 F.2d 892, 897 (10th Cir. 1981), cert. dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982); Smith v. Heath, 691 F.2d 220, 226 (6th Cir. 1982); cf. Hostrop v. Board of Junior College, District No. 515, 523 F.2d 569, 579 (7th Cir. 1975) (citing cases awarding damages in civil rights cases where no pecuniary loss shown), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976). Defendants Otis and Coppock claim that the trial court erred in not granting their motions for a directed verdict or for judgment n. o.v. A court determining whether to grant such motions must determine whether there is evidence upon which the jury properly could find for the nonmoving party.
The purpose of this rule is to "prevent a litigant from taking advantage of an error which could be rectified by the court if called to its attention by timely and specific objection." Corriz v. Naranjo, 667 F.2d 892, 896 (10th Cir. 1981), cert. granted, 456 U.S. 971, 102 S.Ct. 2233, 72 L.Ed.2d 844, cert. dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1983) (by stipulation); see also Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 924 (10th Cir. 1984); Taylor v. Denver and Rio Grande Western Railroad Co., 438 F.2d 351, 353 (10th Cir. 1971); 9 C. Wright A. Miller, Federal Practice and Procedure § 2551 (1971). Accordingly, Rule 51 requires counsel "to make abundantly clear to the trial court the objecting party's position."