          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
             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


                                      -2-
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


                                 -3-
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

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

                                           -4-
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.


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).

                                      -5-
          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




                                   -6-
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

      3
      The 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).

                                          -7-
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 -




                                     -8-
              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

                                        -9-
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.




                                       -10-
             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


                                    -11-
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


                                          -12-
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


                                           -13-
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.




                                -14-
            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


     4
      Though 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).

                                      -15-
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 -




                                       -16-
           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.



                                 -17-
                                 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-

                                -18-
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

      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).

                                       -19-
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.



                                    -20-
            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

                                        -21-
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.


      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-
            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.").



                                          -23-
            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.

                                 -24-
           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


                                       -25-
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


                                     -26-
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


                                    -27-
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.




      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-
                                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.




                                -29-
