Filed: May 28, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-28-2008 Victory Outreach Ctr v. Melso Precedential or Non-Precedential: Non-Precedential Docket No. 07-1927 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Victory Outreach Ctr v. Melso" (2008). 2008 Decisions. Paper 1125. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1125 This decision is brought to you for free and open access by
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-28-2008 Victory Outreach Ctr v. Melso Precedential or Non-Precedential: Non-Precedential Docket No. 07-1927 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Victory Outreach Ctr v. Melso" (2008). 2008 Decisions. Paper 1125. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1125 This decision is brought to you for free and open access by ..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-28-2008
Victory Outreach Ctr v. Melso
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1927
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Victory Outreach Ctr v. Melso" (2008). 2008 Decisions. Paper 1125.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1125
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 07-1927
__________
VICTORY OUTREACH CENTER
and C. STEPHEN WHITE,
Appellants,
vs.
SERGEANT JOSEPH MELSO, OFFICER JASON PARKER,
OFFICER JAMES CULLEN, OFFICER ERIC FREDRICKSDORF,
and ST. JOSEPH’S UNIVERSITY,
Appellees.
__________
On Appeal from the United States District Court
For the Easter District of Pennsylvania
(No. 00-CV-5185)
District Judge: Honorable Petrese B. Tucker
___________
Submitted on May 16, 2008
___________
Before: MCKEE, GARTH, Circuit Judges, and IRENAS,* District Judge.
(Opinion Filed: May 28, 2008)
___________
OPINION
___________
*
Hon. Joseph E. Irenas, Judge, United States District Court for the District of
New Jersey, sitting by designation.
GARTH, Circuit Judge:
Victory Outreach Center and C. Stephen White (“Plaintiffs” or “Appellants”)
appeal from the District Court’s final order of February 28, 2007, dismissing Plaintiffs’
motion for a new trial and motion to extend time based on a failure to order a trial
transcript as required under Local Rule 7.1(e) of the District Court for the Eastern District
of Pennsylvania. Appellants challenge the sufficiency of evidence, twenty-three of the
District Court’s jury instructions, exclusion of evidence, and use of leading questions.
For the following reasons, we affirm.
I.
On October 12, 2000, plaintiffs Victory Outreach Center and C. Stephen White
(“Plaintiffs”) filed a complaint against several Philadelphia police officers – Sergeant
Joseph Melso, Officer Jason Parker, Officer James Cullen, Officer Eric Fredricksdorf
(Police Defendants”) – the City of Philadelphia (“City”), and St. Joseph’s University
(“SJU”). The complaint alleged that White was arrested for preaching religious
messages on three occasions in violation of his rights under the First and Fourth
Amendments.
The first incident occurred on July 24, 1999 at a “Greek Picnic,” during which
thousands of members of fraternities and sororities assemble in Philadelphia every July.
At night, the college students gathered on South Street, such that they were “lumped
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together like cattle” over a fourteen-block span. A-R at 117. To maintain security and
public order, there was a significant police presence assigned to this area. Late that
evening, White stood on the sidewalk on South Street and carried a five-foot banner,
which proclaimed: “Fornicators and Drunkards will Join Tupac in Hell. Obey Jesus. 1st
Corinthians 6:9.” Because White was blocking the sidewalk and causing a crowd to
gather around him due to his slogans and shouting, Officer Parker told him to keep
moving like the rest of the crowd. After White ignored the police officer’s request, he
was arrested and issued a citation for disorderly conduct. White received a hearing that
night, was found guilty, and released. White appealed the conviction and the charges
were eventually dismissed.
The second incident occurred the following year on the night of July 9, 2000, also
during a Greek Picnic, at around 12:30am. In a part of Philadelphia where fifteen to
twenty thousand students had gathered, White again stood on a sidewalk and began to
preach and yell various slogans. About 70 people had assembled in front of White,
which impeded pedestrian traffic. Sergeant Melso asked White to leave approximately
five times but without success. Perceiving a risk to public safety due to an escalating
animosity between White and the crowd, Melso arrested White, who was subsequently
convicted of a summary offense and released. On appeal, the charges against White were
dismissed due to Melso’s failure to appear at White’s trial, apparently because he did not
receive notice of the hearing.
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The third incident took place on March 15, 2001 in the afternoon at St. Joseph’s
University. White’s preaching, which included loud screaming and yelling, assembled a
crowd of twenty to twenty-five people around him. The gathered crowd blocked the
sidewalk and students began walking into traffic. Officer Fredericksdorf, who arrived at
the scene, suggested to White that he move to an adjacent parking lot where there was no
problem with heavy traffic. Since White refused to move after several requests,
Fredericksdorf arrested him on charges of blocking or obstructing a highway or public
passageway and issued him a summary citation. At White’s subsequent hearing, the
charges against him were dismissed due to Fredericksdorf’s failure to appear at the
hearing, apparently because he did not receive notice of it.
On October 10, 2001, Plaintiffs filed an amended complaint, which the Police
Defendants and the City answered. On July 16, 2003, Plaintiffs sought leave to file a
second amended complaint, which the District Court denied. On September 8, 2003,
Plaintiffs moved for summary judgment; the Police Defendants and the City responded
and cross-moved for summary judgment on October 6, 2003. The District Court granted
summary judgment to the City on March 22, 2004 and dismissed the City from the case
for failure of the Plaintiffs to establish independent municipal liability, but denied
summary judgment to Plaintiffs and the Police Defendants.
A jury trial commenced on November 7, 2006 and finished on November 16,
2006. On the fourth day of trial, the District Court granted SJU’s motion for directed
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verdict pursuant to Federal Rule of Civil Procedure 50 and dismissed SJU from the case.
The District Court also dismissed Plaintiffs’ claim of malicious prosecution against the
Police Defendants, but denied the remainder of their Rule 50 motion in favor of sending
the case to the jury. After three hours of deliberation, the jury returned a verdict in favor
of all Police Defendants.
On December 7, 2006, Plaintiffs filed a motion for new trial and SJU moved to
strike the motion based on Plaintiffs’ failure to order a trial transcript. Pursuant to Local
Rule 7.1(e) of the District Court for the Eastern District of Pennsylvania , the District
Court granted SJU’s motion on February 28, 2007. Plaintiffs filed a timely notice of
appeal on March 27, 2007.
II.
We have jurisdiction under 28 U.S.C. § 1291, which provides appellate
jurisdiction from all final decisions of U.S. district courts. The district court had subject
matter jurisdiction pursuant to 28 U.S.C. § 1331, which confers jurisdiction over federal
questions.
We review a motion for a new trial for “‘abuse of discretion unless the court’s
denial of the motion is based on application of a legal precept, in which case our review is
plenary.’” Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007) (quoting Honeywell, Inc. v.
American Standards Testing Bureau, Inc.,
851 F.2d 652, 655 (3d Cir.1988)). We review
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jury instructions for abuse of discretion to determine whether they are misleading or
inadequate, though we exercise plenary review over whether jury instructions, read as a
whole, misstate the law. Woodson v. Scott Paper Co., 109 F.3d 913, 929 (3d Cir. 1996).
A district court’s refusal to use a proposed jury instruction is reviewed for abuse of
discretion. United States v. Khorozian,
333 F.3d 498, 507-08 (3d Cir. 2003). Similarly,
decisions to admit or exclude evidence are reviewed for abuse of discretion. Stecyk v.
Bell Helicopter Textron, Inc.,
295 F.3d 408, 412 (3d Cir. 2002). We also review for
abuse of discretion a trial court’s decision regarding the use of leading questions.
Government of Virgin Islands v. Brathwaite,
782 F.2d 399, 406 (3d Cir. 1986). “To
demonstrate an abuse of discretion, in connection with an evidentiary ruling, a party must
show that the District Court’s decision was arbitrary, fanciful or clearly unreasonable.”
Moyer v. United Dominion Industries, Inc.,
473 F.3d 532, 542 (3d Cir. 2007) (internal
quotation marks omitted).
If a party fails to adequately object to a jury instruction, we review for plain error
instructions affecting substantial rights. Franklin Prescriptions, Inc. v. New York Times
Co., 424 F.3d 336, 339 (3d Cir. 2005). Thus, we will reverse a trial court’s rulings only
where a plain error was “fundamental and highly prejudicial, such that the instructions
failed to provide the jury with adequate guidance and our refusal to consider the issue
would result in a miscarriage of justice.”
Id. at 341.
We have plenary review over a district court’s grant of judgment as a matter of
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law pursuant to Federal Rule of Civil Procedure 50. “[A] directed verdict is mandated
where the facts and law will reasonably support only one conclusion.” McDermott Int’l.,
Inc. V. Wilander, 498 U.S. 337, 356 (1991).
III.
Appellants raise numerous issues with respect to the sufficiency of evidence,
twenty-three of the District Court’s jury instructions, exclusion of evidence, and use of
leading questions.
Since the District Court properly dismissed White’s motion for a new trial for lack
of prosecution pursuant to Local Rule 7.1(e),1 Appellants’ arguments regarding
sufficiency of evidence were waived by procedural default. Hewlett v. Davis, 844 F.2d
109, 115, n.3 (3d Cir. 1988). With respect to Appellants’ challenges to the jury
instructions, all except three of these issues were waived by the Plaintiffs because they
were not “properly raised and preserved at the trial level.”
Id. Under Federal Rule of
Civil Procedure 51(c)(1), a “party who objects to an instruction or the failure to give an
instruction must do so on the record, stating distinctly the matter objected to and the
grounds for the objection.” (emphasis added). Though White raised a general objection
1
Local Rule 7.1(e) provides: “Within fourteen (14) days after filing any post-trial
motion, the movant shall either (a) order a transcript of the trial by a writing delivered to
the Court Reporter Supervisor, or (b) file a verified motion showing good cause to be
excused from this requirement. Unless a transcript is thus ordered, or the movant excused
from ordering a transcript, the post-trial motion may be dismissed for lack of
prosecution.”
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to the court’s jury instructions and proposed alternative instructions, such acts were
insufficient to preserve on appeal all potential challenges to the instructions. See, e.g.,
Collins v. Alco Parking Corp., 448 F.3d 652, 656 (3d Cir. 2006) (“[M]erely proposing a
jury instruction that differs from the charge given is insufficient to preserve an
objection.”); Alexander v. Riga,
208 F.3d 419, 426 (3d Cir. 2000).
The remaining issues preserved on appeal relate to the District Court’s
instructions regarding First Amendment law, in particular the issue of the so-called
“heckler’s veto,” status of the sidewalk as a public forum, and charge on punitive
damages. Based on a comprehensive review of the record, we find no reversible error in
the District Court’s rulings on these matters. Similarly, we find no error in the District
Court’s Rule 50 directed verdict in favor of SJU. Turning to Appellants’ challenges to
the District Court’s exclusion of certain evidence and its handling of allegedly leading
questions, we find that the District Court did not abuse its discretion in ruling against the
Plaintiffs.
IV.
For the foregoing reasons, we affirm the District Court’s order of February 28, 2007.
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