Full opinion text
MEMORANDUM AND ORDER GERTNER, District Judge: TABLE OF CONTENTS MEMORANDUM AND ORDER September 26,1997 I. INTRODUCTION..........................................................29 II. FACTS ADDUCED AT TRIAL ..............................................30 A. Britton’s Version........................................................30 B. The Officers............................................................31 1. Dooley’s Version....................................................32 2. Maloney’s Version..................................................32 C. Stampley’s Version......................................................33 D. Loughin’s Presence at Trial ..............................................33 E. The Jury Verdict........................................................33 III. DISCUSSION..............................................................33 A. Failure to State a Claim..................................................34 1. The Aibright Plurality...............................................35 2. Claims Left Open by Albright........................................35 a. Justice Ginsburg................................................36 b. Justice Souter..................................................36 e. Justice Stevens.................................................36 3. Decisions After Albright.............................................36 4. Britton’s § 1983 Claim ..............................................37 a. “Continuing Seizure”............................................37 b. An “Exceptional” Case...........................................38 e. Retaliation.....................................................38 B. Sufficiency of the Evidence...............................................40 1. § 1983 Claim and Malicious Prosecution...............................41 a. Retaliatory Motive..............................................41 b. Termination in the Plaintiffs Favor................................43 2. Abuse of Process ...................................................44 3. State Civil Rights Claims............................................44 C. Errors in the Jury Instructions...........................................44 1. Procedures Followed................................................45 a. Charge Conference..............................................45 i) The Court’s Usual Procedure ..................................45 ii) The Britton Procedure........................................46 b. Submission of Written Instructions................................47 e. Submission of an Amended Verdict Slip............................48 2. Substantive Challenges to the Instructions.............................48 a. Malice.........................................................48 b. The Legality of Britton’s Rifle, and his Carrying a Rifle..............50 3. Britton’s Federal Civil Rights........................................50 a. General Description of 1983 Cause of Action........................50 b. Probable Cause.................................................51 c. Inquiry into the Subjective Minds of the Officers....................52 d. Causation......................................................53 e. Definition of Improper Motive....................................54 4. Other State law Claims: .............................................54 a. State Civil Rights Law...........................................54 b. Abuse of Process................................................54 D. Remittitur..............................................................55 E. Damages Under the § 1983 Claim.........................................56 I. INTRODUCTION Before me are defendant Patrick J. Maloney’s motion for a judgment as a matter of law (docket entry # 183), motion for a new trial (docket entry # 184), and motion for remittitur (docket entry # 184). Plaintiff Randy Britton (“Britton”) was then and is now pro se. Britton is an African-American man, who is a graduate of both West Point and the Harvard University Graduate School of Business. His goal was to work as a stockbroker in New York City, He alleged that several Boston police officers illegally seized a rifle he owned and then pressed false felony charges against him when he threatened to sue for its return. The felony charges, he claimed, had a substantial effect on his life, his well-being and his prospects. The officers denied these allegations. This case was tried before a jury from February 3, 1997, through February 12, 1997. The jury returned a verdict for the plaintiff on four of five counts against defendant Patrick J. Maloney (“Maloney”) and awarded damages of $200,000. Since the plaintiff was pro sé and the issues complex, I invited the parties to use their post-verdict motions to raise any concerns about the outcome which they believed were significant. Maloney urges this Court to reverse the jury’s verdict and enter judgment as a matter of law in his favor, or, in the alternative, order a new trial. After review of the papers and the record, defendant’s motions are DENIED. II. FACTS ADDUCED AT TRIAL On June 30, 1990, around 5:20-5:30 p.m., plaintiff Randy Britton entered the Boston Police Department (“BPD”) headquarters at 154 Berkeley Street in Boston, carrying the unattached barrel and action portions of an AR-7 rifle. Essentially, Britton claims that the police took his rifle, illegally retained it and then brought false charges against him in retaliation for his threat to sue for its return. A. Britton’s Version Prior to arriving at the police station, Brit-ton and his daughter had been on their way to the Regional Census Headquarters for the United States Census Bureau, where he was employed. Britton testified that while en route, he was chased by two individuals in a red car; the passengers — he claimed — pointed a gun at him. Fearing for his own safety and that of his daughter, Britton drove to the BPD Headquarters. He got out of his car and carried his daughter and the barrel and action portions of his rifle into the building. An unarmed patrol officer, Sandra Springer Glenn (“Springer”), was seated at a desk in the BPD lobby when Britton entered. Britton testified that he told Springer that he was being chased and needed help. About five minutes passed, and Britton became afraid that the people who had been chasing him would come into the police station. He left the lobby and stood in the building entrance. He saw a red car traveling around the block — the the same car that had chased him earlier. At this point, someone — defendant Detective Thomas Dooley (“Dooley”) — came up and grabbed Britton from behind; Dooley was not in uniform. Dooley grabbed the barrel of Britton’s rifle and began to pull. As Britton let go of the rifle, he saw the red car circle around the block again; he told Dooley, “There they are. Those are the people who are trying to kill me.” Britton said Dooley took the rifle and walked outside, towards the red car. A woman got out of the ear, and Britton observed Dooley speak with her. Sergeant Maloney then appeared. Britton was escorted by Maloney and other unidentified officers to the second floor of BPD headquarters. At this point, Britton no longer had the rifle; it was in the hands of either Maloney or Dooley. Britton, his daughter, and the officers went upstairs, where they remained for about thirty to forty-five minutes. Britton said that most of the ensuing discussion centered around his rifle, not the chase. He showed the officers his FID card, and requested that Maloney and Dooley return the weapon. A background check on the FID card revealed that it was valid. Nonetheless, Maloney and Dooley refused to return the rifle, and told Britton that the police would hold it “for safekeeping.” Britton left police headquarters at 6:15 p.m. or 6:20 p.m. When Britton left police headquarters that evening, he had a copy of an incident report filled out by Dooley. (Trial Exh. 1). Britton had asked for the report so that he could have proof that the officers had taken his rifle. The report narrated the events of the evening, as Britton had related them: Randy Britton observed standing in hallway of BPD HQ holding a 22 Caliber rifle A207588 AR-7 EXPLORER in his right hand; rifle taken from Randy Britton who states 2 occupants of red car MA 650 AAP did make threats against his person. Tyrone Stampley DOB 10-24-62 B/M §§ 014525860 Add 25 Weld St. Fram-MA also a W/F Tammy Carpenter W/F MIV rented from Nat Car Rental to a William Murphy. Rifle held for safekeeping. Randy Britton advised to seek asst, at Dist.04 Det’s unit. Firearm ID Card # H-(R)-694455 The “time completed” section on the incident report read 6:15 p.m., just shortly before Britton left. It listed the “type of incident” as “investigation persons” and the victim as “Comm of Mass.” By the time he arrived home, Britton was frustrated and angry. He decided to complain about the way he had been treated at police headquarters. At 8:00 p.m., he called BPD headquarters and spoke with a Sergeant Norman Connor, who gave him the number for the Drug Control Unit (“DCU”). Britton then called the DCU and spoke with Maloney. Britton stated that he told Maloney that the seizure of his rifle was illegal because he had a valid FID card, and, more importantly, he said to Maloney, “I hope I’m not going to have to sue you to get my rifle back.” (Day 3, page 47, lines 16-17). Over the weekend, Britton said he “stewed over [the incident].” (Day 3, page 48, lines 1-2). On July 3, 1990, he went to the BPD Ballistics Unit to get his rifle back. Ballistics personnel informed Britton they did not have it. He then returned to BPD headquarters. He told the desk sergeant that he wanted to see a supervisor. A few minutes later, DCU Deputy Superintendent James Wood (“Wood”) appeared. Britton explained to Wood what had happened on June 30, 1990, and said the seizure of his rifle had violated the Fourth Amendment. Maloney appeared and joined the conversation; Britton reiterated his complaints. Maloney then told Britton there were criminal charges pending against him for assault, based on the statements from Stampley and Loughlin. Britton was shocked. This was the first time Britton had ever heard that he was being charged with an offense of any kind. In fact, Britton was charged with two counts of assault with a deadly weapon, one on Tyrone Stampley and one on Tammy Carpenter, based on an application for a criminal complaint, dated the same day as his encounter with Maloney — July 3,1990. On September 25, 1990, the criminal charges against Britton were dropped for want of prosecution. (Trial Exh. 2). The rifle was not returned to Britton until that date. B. The Officers There was apparently a second incident report, which recounted allegations of misconduct by Britton, against Stampley and Loughlin, and which provided the basis for the July 3, 1990, complaint. The central question at trial was when — in relation to Britton’s threat to sue to get his rifle back— the second incident report was drafted. Both Dooley and Maloney testified that they spoke to Stampley and Loughlin together. According to the officers, Stampley and Loughlin said Britton had pointed his rifle at them while he was driving and threatened to shoot them. Moreover, Loughlin told the officers she was a prostitute and Britton had solicited sex from her on prior occasions, including that evening. Notwithstanding this testimony, Dooley maintained that Britton had Dooley’s incident report in his possession — a report which did not mention any misconduct on Britton’s part — when he left headquarters. Maloney and Dooley testified that Britton left police headquarters around 6:20 or 6:25 p.m. 1. Dooley’s Version Dooley testified that he observed Britton’s car arrive outside of police headquarters, as he walked into the building. When he entered, he saw Britton standing in the lobby, holding the rifle. He struggled with Britton and took the rifle. Then Dooley removed the clip from Britton’s pocket and, taking Brit-ton’s car keys, left the police station, drove Britton’s car up onto the sidewalk, and removed the rifle stock, a box of ammunition, and the vehicle registration from the car. The rifle itself was unloaded. Dooley testified that he and Maloney spoke with Stampley and Loughlin before 6:15 p.m., i.e. before Britton left. Thus, Dooley said he knew all about the allegations of assault before he gave a copy of his rather innocuous incident report to Britton. Indeed, Dooley testified that he even considered arresting Britton at that time, but decided not to out of concern for Britton’s daughter. If he had arrested Britton, Dooley testified that Britton would have been cuffed and jailed. Allison, Britton’s daughter, might then have been sent to Boston City Hospital. (Day 4, PM session, page 47, lines 1-25, page 48, line 12). 2. Maloney’s Version Contradicting Dooley’s account, Maloney testified that he and Dooley spoke with Stampley and Loughlin between 6:20 p.m. and 6:25 p.m., after Britton left. At some point after this conversation, Maloney filled out a “supplemental” incident report. This report did not contain an entry for “time completed,” nor was it ever given to Britton. It also listed “investigation persons” as the “type of incident,” but listed the victim as “Stampley, Tyrone” and included the following entry: Additional info aforementioned Tyrone Stampley and Tammy Carpenter stated to officers that the suspect pointed his rifle out of his auto window at the victims in a threatening manner. Allegations were made to Det. Dooley and Sgt. Maloney on 6/30/90. Maloney signed this report as the reporting officer, and Sergeant Vincent K. Donohoe (“Donohoe”) signed it as duty supervisor. Although Maloney testified that he completed the applications for a criminal complaint that same night as Britton’s visit to the station — June SO, 1990 — the date listed on the applications is July S, 1990. Maloney claimed that he did not file the application directly with the Boston Municipal Court (“BMC”); instead, he testified that the application was probably placed in an “out box” at BPD Headquarters, to be sent on to the court. The official charges against Britton resulted from a criminal complaint filed with the BMC on July 5,1990. “Peter Mugford/Maloney” is listed as the complainant. Exh. 4). (Trial Maloney did recall receiving a phone call from Britton on June 80, 1990, later in the night, but said he did not remember its substance. C. Stampley’s Version Stampley and Loughlin arrived at the police station soon after Britton did. They did not enter BPD Headquarters, but remained outside. Stampley testified at trial. He admitted that he had been chasing Britton on June 30,1990; Stampley thought Britton was someone he had experienced problems with in jail. Stampley, traveling with Loughlin in his car, arrived at BPD Headquarters soon after Britton. He denied that Britton ever pointed a rifle at him. He also testified that he never told the police that Britton had threatened him. (Day 3, page 23, lines 12-13). Rather, Stampley testified that he explained to the police the chase had been a case of “mistaken identity.” (Day 3, page 18, line 16). Stampley recalled speaking with the police for about five to ten minutes; he testified that he did not begin speaking with the police until about forty-five minutes after Britton arrived. He admitted, however, that his companion, Loughlin, spoke to the officers longer than he did. Stampley also said that Loughlin was a prostitute. D. Louyhlin’s Presence at Trial Loughlin did not testify at trial. The Court issued a trial subpoena, and then an arrest warrant, but she did not appear in court. The defense attempted to introduce the transcript of an examination it had conducted of Loughlin. This examination was not a deposition; while Loughlin was sworn, neither Britton nor anyone representing him was present. As such, it failed to meet the requirements of Fed.R.Evid. 804(b)(1) and could not be admitted. The jury did hear Loughlin’s statements, however, through the testimony of the officers. The Court admitted these statements for non-hearsay purposes — on the grounds that they related to the state of mind of the various officers. E.The Jury Verdict The Court submitted five counts to the jury: (1) the federal civil rights statute; (2) malicious prosecution; (3) the Massachusetts civil rights statute; (4) abuse of process; and, (5) intentional infliction of emotional distress. The special interrogatories asked the jury to determine liability for both Maloney and Dooley on all the counts. The jury returned a verdict against Maloney on all counts, except the intentional infliction of emotional distress claim, and awarded damages of $200,000. No liability was found against Dooley. The jury found that while Britton may have demonstrated prima facie liability on Dooley’s part for abuse of process, Dooley was not the proximate cause of Britton’s damages. III. DISCUSSION The defendant mounts several challenges specifically to the plaintiffs § 1983 claim. First, the defendant argues that the 42 U.S.C § 1983 count submitted to the jury failed to state a claim for which relief can be granted. Second, the defendant argues that there is insufficient evidence to support this claim. Third, the defendant argues that there were errors in the jury instructions submitted to the jury. I address claims (1) in Section (A) infra; (2) in section (B) infra; and claim (3) in section (C)(2) infra. In addition, defendant challenges the instructions procedure in general and various instructions on the state claims addressed in section C(l) and (2) infra. A. Failure to State a Claim To assert a viable claim under 42 U.S.C. § 1983, a plaintiff must show that: (1) the conduct complained of was committed by a person acting under color or law; and, (2) the conduct deprived a person of clearly established rights, privileges or immunities secured by the Constitution or laws of the United States. Here, the defendant-officers acted under color of law; the dispute centers around the second requirement — what clearly established federal rights were implicated. The plaintiff makes two Fourth Amendment claims. First, he claims that his prosecution for assault with a deadly weapon without probable cause, and with all the adverse consequences that flowed from it — his emotional distress, loss of employment — violated his rights under the Fourth Amendment. Second, Britton claims the prosecution was retaliatory: the police officers fabricated criminal charges in retaliation for his assertion of a Fourth Amendment right to the return of his rifle. The defendant'maintains that there is no cognizable § 1983 claim deriving from the prosecution of Britton, relying on a recent Supreme Court decision that limits the scope of rights actionable under § 1983. In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), the Supreme Court affirmed a dismissal of the plaintiffs complaint on the grounds that the claim that an arrest without probable cause violated the Due Process Clause of the Fourteenth Amendment could not support a § 1983 cause of action. In Albright, Illinois authorities issued an arrest warrant for the petitioner charging him on the basis of a previously filed information with the sale of a substance which looked like an illegal drug. An informant had originally told the investigating police officer, Roger Oliver, that she had bought cocaine from one John Albright, Jr. The “cocaine” later turned out to be baking powder; the grand jury nevertheless indicted John Albright, Jr. for selling a “look-alike” substance. When the police officer went to serve the arrest warrant, he discovered that John Albright, Jr. was a retired pharmacist in his sixties and decided to investigate further. He then contacted the informant to determine whether the information really meant that the buyer was John Albright’s son, Kevin. The informant confirmed that it was Kevin. Kevin Albright surrendered to the warrant, all the while denying his guilt. He was released on bond, with the condition that he not leave the state without the permission of the Court. Shortly thereafter, the Illinois court dismissed the criminal action on the ground that the charge did not state an offense under Illinois law. Albright’s claim was a narrow one. He sued the investigating officer, Detective Roger Oliver, for depriving him of substantive due process rights under the Fourteenth Amendment — his “liberty interest” to be free from criminal prosecution not based on probable cause. Albright did not claim a violation of procedural due process guaranteed by the Fourteenth Amendment. Nor did he claim a violation of his Fourth Amendment rights, “notwithstanding the fact that his surrender to the State’s show of authority constituted a seizure for purposes of the Fourth Amendment.” 510 U.S. at 271, 114 S.Ct. at 812. The District Court dismissed the suit on the grounds that the complaint did not state a claim under § 1983. The Seventh Circuit affirmed. 1. The Albright Plurality The Court’s decision was splintered. Four Justices joined one opinion (Rehnquist, C.J., joined by O’Connor, Scalia, and Ginsburg, J. J.). Justice Scalia wrote separately; Justice Ginsburg wrote separately; Justice Kennedy wrote a concurrence, which Justice Thomas joined; Justice Souter also concurred; and Justices Stevens and Blackmun dissented. Essentially, the plurality held that there is no substantive due process right not to be charged with a crime without probable cause. The Court reiterated that the scope of substantive due process is quite limited; § 1983, it held, is “ ‘a method for vindicating federal rights elsewhere conferred.’ ” Id. at 271, 114 S.Ct. at 811. (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979)). At the base of the Court’s holding lay its fear that plaintiffs might use § 1983 to expand rights not otherwise codified in the Constitution, transforming the statute into a cause of action for general unfairness. Hence, in the Albright case, the Court suggested that the only preexisting right implicated was the Fourth Amendment’s prohibition against unreasonable seizures, including arrests without probable cause. Id. at 274-75, 114 S.Ct. at 813-14. Since Albright alleged no Fourth Amendment violation; the Court affirmed the dismissal of the case. 2. Claims Left Open by Albright Unfortunately, “[a]s many courts have observed, in many ways Albright muddied the waters rather than clarified them.” Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996). One court has referred to the melange of opinions as “the Albright minefield.” Reed v. City of Chicago, 77 F.3d 1049, 1052 n. 3 (7th Cir.1996). In addition to the assortment of opinions, the plurality’s discussion of the content of a Fourth Amendment claim was dicta, since Albright never alleged such a violation. What was clear about the opinion, at the very minimum, is this: It instructed plaintiffs to rely on a particular constitutional amendment — typically, the Fourth Amendment — as a gateway to allege a malicious prosecution claim under § 1983. Id. at 273, 114 S.Ct. at 812-13. “We have in the past noted the Fourth Amendment’s relevance to the deprivations of liberty that go hand in hand with criminal prosecutions.” Id. But precisely what the plurality meant to include by its reference to Fourth Amendment claims is not so clear. To be sure, the plurality seems to have envisaged such claims almost exclusively in the context of false arrests. Referring to the potential claims for “pretrial deprivations of liberty,” the plurality cited Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863-64, 43 L.Ed.2d 54 (1975), which held that the Fourth Amendment required a judicial determination of probable cause for any extended deprivation of liberty following an arrest. Id. at 273,114 S.Ct. at 812-13. But what of the plaintiff who is not arrested, but only charged, who, as a result, loses employment or suffers other “palpable consequences?” Albright v. Illinois, 975 F.2d 343, 346-47 (7th Cir.1992). Is he left without even a Fourth Amendment claim? Just so, the defendant contends. The defendant asserts the plurality’s decision eliminates any cause of action simply because Britton was not arrested. Id. at 274, 114 S.Ct. at 813 (“petitioner was not merely charged; he submitted himself to arrest”). If “seizure” under the Fourth Amendment means only arrest, then Britton could not have been seized because he was not arrested. This interpretation is deeply troubling. It removes the “heavy weaponry” of federal constitutional litigation, 975 F.2d. at 347, from a situation where a police officer was found by a jury to have concocted probable cause, to silence a citizen’s complaint. It permits police officers who go so far as to fabricate charges in an official court proceeding, put a citizen at risk of conviction, and the loss of liberty, jeopardize his employment, consume his time and resources, but stop short of arresting the person, to evade § 1983 accountability. Why wasn’t Britton arrested on the night of June 30, 1990? One answer lies in the jury’s verdict: Maloney and Dooley did not have probable cause to do so. Using the defendant’s approach, the real harm would remain unredressed: the activation of the criminal justice system through invented charges, the blatant abuse of official power, and the significant consequences flowing therefrom. I do not believe that the Albright decision went so far. a.Justice Ginsburg Justice Ginsburg’s opinion constitutes the only attempt in the Albñght array to flesh out the scope of a Fourth Amendment claim without an arrest. While Justice Ginsburg joined the plurality opinion, she wrote separately to argue that in considering an Al-bright-Hke Fourth Amendment claim, “seizure” should be construed broadly. In Justice Ginsburg’s view, a defendant is “ ‘seized’ for trial, so long as he is bound to appear in court and answer the state’s charges.” Id. at 279, 114 S.Ct. at 816. As a result, a plaintiffs claim for unlawful seizure — even viewed through a Fourth Amendment lens — could extend beyond the initial contact with law enforcement and in situations not involving an arrest. In support of this position, Justice Ginsburg relied on precedents in the common law, as well as the practical implications of pending charges: A person facing serious criminal charges is hardly freed from the state’s control upon his release from a police officer’s physical grip. He is required to appear in court at the state’s command. He is often subject, as in this case, to the condition that he seek formal permission from the court (at significant expense) before exercising what would otherwise be his unquestioned right to travel outside the jurisdiction. Pending prosecution, his employment prospects may be diminished severely and he may suffer reputational harm, and he will experience the financial and emotional strain of preparing a defense. Id. at 278,114 S.Ct. at 815. b. Justice Souter Justice Souter’s concurrence also discusses the claims that remain in the wake of the plurality decision. He pointed out that Al-bright had failed to show “substantial deprivation of liberty [that stemmed] from the mere initiation of prosecution,” rather than from the arrest. Id. at 291, 114 S.Ct. at 822. He did, however, suggest there could be an “exceptional eases in which “some quantum of harm occurs in the interim period after groundless criminal charges are filed but before any Fourth Amendment seizure.” Id. c. Justice Stevens In dissent, Justices Stevens and Blackmun contended that “the initiation of a criminal prosecution, regardless of whether it prompts an arrest ... is of sufficient magnitude to qualify as a deprivation of liberty meriting constitutional protection.” Id. at 295, 114 S.Ct. at 824. Consequently, they concluded that the Due Process Clause protects individuals “by guaranteeing that no criminal prosecution shall be initiated except on a finding of probable cause.” Id. at 302, 114 S.Ct. at 828. 3. Decisions After Albright Prior to Albñght, some circuits had recognized a cause of action under § 1983 for violations of substantive due process so long as the case involved some variant of “egregious misconduct.” See, e.g., Torres v. Superintendent of Police, 893 F.2d 404, 409 (1st Cir.1990) (“egregious misconduct”); Coogan v. Wixom, 820 F.2d 170, 175 (6th Cir.1987) (“egregious misuse”). Recently, however, the First Circuit recognized that Albright “would appear virtually to foreclose reliance on substantive due process as the basis for a malicious prosecution claim under section 1983— superseding even Torres ’ very limited tolerance of rebanee on substantive due process in this area.” Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994). Courts considering the impact of Albright have at once highbghted the primacy of the Fourth Amendment and at the same time suggested that the presence of an arrest is not dispositive. See, e.g., Whiting v. Traylor, 85 F.3d 581, 586 (11th Cir.1996) (holding that a plaintiff may assert a mabcious prosecution claim under § 1983 so long as she can estabbsh a “concrete violation” of the Fourth Amendment, envisioning an “actual, unlawful, forcible restraint of plaintiffs person”; “an unlawful seizure may include those associated with the prosecution [of charges]”); Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.1995) (holding Albright does not bar a plaintiff from asserting a federal claim for mabcious prosecution under the Fourth Amendment so long as there is some deprivation of hberty consistent with the concept of “seizure”). In sum, Albright did not eviscerate ah mabcious prosecution claims brought under § 1983 that did not involve arrests. Simple vote counting supports this proposition: (a) the plurahty abowed for claims under the Fourth Amendment, but did not define what they might consist of; (b) Justice Ginsburg enunciated a “continuing seizure” theory; (c) Justice Souter left room for an “exceptional case”; and, (d) Justice Stevens dissented. 4. Britton’s § 1983 Claim Britton’s § 1983 claim fabs within the territory left open by Albright in three separate ways: (a) Justice Ginsburg’s “continuing seizure” theory; (b) Justice Souter’s “exceptional case” theory; and (c) a bne of cases — not discussed in Albright — which I wbl refer to as the “retahation cases.” a. “Continuing Seizure” In this case, the criminal prosecution lasted two months. The charges against Britton were dismissed for want of prosecution. In between, and thereafter, the prosecution for a serious felony had a substantial deleterious impact on Britton’s life — including the loss of time and self-esteem, as web as the eventual loss of a job. The following court dates were scheduled in the case: August 3, 1990; August 30, 1990; and September 25, 1990. See Trial Exh. 3. Whbe Britton was not required to post bail, he did have to report for these court dates, or face the consequences. According to the logic of Justice Ginsburg’s concurrence, this two month period constituted a “seizure” of Britton. The pobee officers’ decision to bring the mechanisms of the criminal justice system to bear on Britton impheates ab of Justice Ginsberg’s concerns. As a result of Maloney’s conduct, a summons and complaint issued for Britton. The complaint effected a seizure since it involved a restraint on hberty. Id. Legal proceedings cannot begin until the state accompbshes this initial seizure; without the compulsive force of the state behind the summons and complaint, Britton would not have had to appear in court. Until Brit-ton was free of the obbgation to appear when and where the state commanded, under threat of contempt, the seizure continued. Britton has a Fourth Amendment “right to be free of unreasonable or unwarranted restraints on personal liberty.” Singer, 68 F.3d at 116. The criminal prosecution interfered with this right. b. An “Exceptional” Case Britton’s case also features sufficiently unique circumstances to place it into the category of “exceptional cases” exempted by Justice Souter. While the short length of the pending charges might initially seem less than onerous, the harm is clearer when considered in light of the officers’ retaliatory motive, discussed below; indeed, Britton endured “a harm of constitutional proportions.” Singer, 63 F.3d at 116. C. Retaliation Another right implicated in this lawsuit is the right not to suffer retaliation for exercising or threatening to exercise constitutional rights. Different courts place the source for this right in different constitutional amendments. See, e.g., Hall v. Ochs, 817 F.2d 920, 925 (1st Cir.1987) (noting that access to the courts to redress civil wrongs is often treated as a First Amendment right); Duvall v. Sharp, 905 F.2d 1188, 1189 (8th Cir.1990) (holding that actions taken to retaliate for filing a civil rights lawsuit may violate First and Fourteenth Amendment rights). Britton could have sued under § 1983 to get his rifle back. Britton was legally allowed to file a complaint to challenge a seizure; he was legally allowed to verbally complain as well. See Hall v. Ochs, 817 F.2d 920, 922 (1st Cir.1986) (holding that while Hall “clearly had a Fourth Amendment right to be free from unreasonable seizures of his person,” he also had a “First Amendment right to access to the courts to vindicate his rights secured under state and federal law.”); Smart v. Board of Trustees, 34 F.3d 432, 434 (7th Cir.1994) (holding that “[a]ny form of official retaliation for exercising one’s freedom of speech is actionable as an infringement of that freedom. Malicious prosecution has been held to be a form of harassment of which a plaintiff can complain on First Amendment grounds.” (citation omitted)). The defendant claims that the Fourth Amendment is a “protective” right which cannot be chilled. This analysis fails to appreciate the logic of the retaliation cases. Unquestionably, the rights secured by the Fourth and First Amendments are “chilled” when valid challenges to police activity are met with the institution of criminal charges. Vve-Albright, the First Circuit implied as much: [The plaintiffs] theory seems to be that defendants conspired to deprive him of his section 1988 right of action to seek redress for the unconstitutional use of force, and we may assume, without deciding that such an object, sufficiently advanced, could have amounted to an actionable deprivation of federally protected rights. Landrigan v. Warwick, 628 F.2d 736, 742 (1st Cir.1980). Nothing in Albright casts doubt on this position. Indeed, cases preAlbright and post-Albright suggest the same theme. See also Gehl Group v. Koby, 63 F.3d 1528, 1534 (10th Cir.1995) (holding charges filed in retaliation for the exercise of a constitutionally protected right are actionable under § 1983); Gonsalves v. New Bedford, 939 F.Supp. 921, 927 (D.Mass.1996) (holding that when a defendant begins a cover-up to keep a civil suit from being filed and continues the cover-up once a case has commenced, a plaintiff may be entitled to recover under § 1983 for denial of adequate access to the courts); Cantarella v. Kuzemchak, 36 F.3d 1102, 1994 WL 529530, *1 n. 2 (9th Cir.1994) (unpublished opinion) (holding that exception for malicious prosecution under § 1983 exists when the prosecution “is conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights.”) (citation omitted); Duvall v. Sharp, 905 F.2d 1188, 1189 (8th Cir.1990) (holding arrest allegedly made in retaliation for filing a civil rights lawsuit sufficient to state a cause of action for retaliatory conduct in violation of plaintiffs First and Fourteenth Amendment rights); Hampton v. Hanrahan, 600 F.2d 600, 622 (7th Cir.1979), rev’d in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (holding that plaintiffs stated a claim for a violation of § 1983 when they alleged the defendants conspired to bring false charges in order to frustrate any possible redress and to conceal the true character of their activities). The defendant argues that Brit-ton’s claims of illegal detention and illegal seizure were disposed of before this trial, depriving Britton of any suitable constitutional “peg” within Albright’s limits. I do not agree. On the evening of June 30, 1990, Maloney could not have known that Britton’s seizure claims would eventually be unsuccessful, so the “peg” on which Britton’s malicious prosecution claim hangs is still a valid one. Fundamentally, this aspect of Brit-ton’s ease — the right to enforce Fourth Amendment rights — removes it from the concerns of the plurality in Albright The right which forms the basis for Britton’s malicious prosecution claim was explicitly guaranteed by a specific textual command of the constitution, plainly “elsewhere conferred” within the meaning of Albright “The right of the people to be secure in then-persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...” U.S. Const., amend. IV. Significantly, the amendment is broadly written. The drafters prohibited more than unreasonable arrests, they prohibited unreasonable “seizures.” See, e.g., Jean v. Collins, 107 F.3d 1111, 1115 (4th Cir.1997) (holding that Albright does not preclude a lawsuit based on Brady v. Maryland violations since “the right to disclosure of exculpatory evidence is grounded in the Due Process Clause itself.”). Viewed as the jury saw this case — as a violation of the plaintiffs Fourth Amendment rights — Britton’s suit is not a diffuse substantive due process claim that the police treated him unfairly or engaged in a personal vendetta. E.g., Gunderson v. Schlueter, 904 F.2d 407 (8th Cir.1990) (refusing to find a due process violation where officer had brought criminal charges against a resort owner as á result of a personal vendetta). The plaintiff claims the defendants, police officers, brought charges against him in retaliation for his invocation of the Fourth Amendment. As such, it is a claim that strikes at the heart of both the civil rights statute and the underlying constitutional right. B. Sufficiency of the Evidence A Rule 50(b) motion for judgment as a matter of law, formerly known as a motion for judgment notwithstanding the verdict, cannot be made unless a prior motion for judgment as a matter of law, i.e. a motion for directed verdict, was properly brought before the court during trial. Javelin Investment v. Municipality of Ponce, 645 F.2d 92, 94 (1st Cir.1981). In this ease, the defendant properly raised such a motion. Judgment as a matter of law may be granted only when the evidence, viewed in a light most favorable to the non-movant, is such that reasonable persons could reach but one conclusion. Putnam Resources v. Pateman, 958 F.2d 448, 459 (1st Cir.1992); Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987). The defendant has failed to meet this standard. Maloney has also moved, pursuant to Fed.R.Civ.P. 59, for a new trial. The standard for a new trial motion is often confused with that of a motion for judgment as a matter of law, but they are not the same. A trial court may grant a new trial “if [s]he is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent direction of a verdict.” Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 352-53 (4th Cir.1941). See Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 7 (1st Cir.), cert, denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982) (citing test as whether the verdict is against “the clear weight of the evidence”); Borras v. Sea-Land Service, Inc., 586 F.2d 881, 887 (1st Cir.1978) (citing test as whether the verdict is against “the great weight of the evidence”). Here too, however, the defendant has failed to meet the standard. 1. § 1983 Claim and Malicious Prosecution The starting point for most postAlbright decisions is the common law tort of malicious prosecution, coupled with the violation of a pre-existing right, discussed above. See Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir.1995). The common law elements of malicious prosecution include the following: (1) the defendant must have instituted a criminal action against the plaintiff; (2) the prosecution must have ended in the plaintiffs favor; (3) there must have been an absence of probable cause to initiate the criminal proceeding; (4) the defendant must have acted maliciously. Id. at 3 n. 5. Tested by the standards of Rules 59 and 50, Britton established all these elements, as well as the violation of his Fourth Amendment rights. a. Retaliatory Motive A crucial fact in Britton’s favor was that Maloney and Dooley testified to different chronologies for the evening of June 30, 1990. The disparities were key because both agreed that Britton was not informed of the assault allegations against him before he left police headquarters. Maloney said Britton was not informed of the assault charges because Maloney did not learn of the threats until after Britton had left BPD Headquarters. In contrast, Dooley testified that he had all the information he needed to file charges and make an arrest before Britton left headquarters; he simply chose not to inform Britton. Dooley’s incident report, given to Britton at 6:20-6:25 p.m., did not mention any allegations of assault. But the Dooley report, obtained by Britton before he left BPD Headquarters, included personal information regarding Stampley and Loughlin, i.e. their addresses and driver’s license numbers. As such, it confirms Dooley’s chronology of the interviews that evening: Dooley had to have spoken with Stampley and Loughlin at least once before Britton left that evening because his report included this information. The report did not, however, contain any of the allegations Stampley and Loughlin supposedly made against Britton, i.e. solicitation of a prostitute or assault with a dangerous weapon. A reasonable jury could have viewed the failure to report this information on Dooley’s report as suspicious, supporting Britton’s argument that the charges were fabricated after he left and after he had demanded the return of his property. Further, Dooley’s explanation for the gaps in the report — its failure to describe the accusations against Britton — could well have been unpersuasive to a reasonable jury. He said he wanted to be unbiased in his report, and he advised Stampley and Loughlin to go to the District 4 office and swear out a complaint against Britton. (Day 1, page 33, lines 24-25). In fact, Dooley said “they [Stampley and Loughlin] were going to go down to District 4 and fill out their own police report.” (Day 1, page 34, line 13) (emphasis added). This report, the only Britton had when he left headquarters, Dooley said, reflected the statements Britton made, nothing more. But the report listed “investigation persons” as its “type of incident.” More importantly, the victim was not listed as Randy Britton, but as the “Comm of Mass” — despite the fact that the report was supposed to reflect the statements that Brit-ton had made. (Trial Exh. I). Dooley never filled out another report detailing the allegations made by Stampley and Loughlin. Moreover, when he filled out the ballistics report later on the evening of June 30, 1990, concerning Britton’s rifle, he noted that the “criminal charges pertaining to Ballistics Evid” as “ill. poss. firearm,” not assault with a deadly weapon. (Trial Exh. 11). In any event, since Britton had an FID card for the rifle, illegal possession was an impossible charge. A reasonable jury could have found the timing of the application problematic. If Maloney completed the supplemental incident report on June 30,1990 (the report alleging a crime), why was it undated? And if Maloney completed the criminal complaint applications on June 30, 1990, why does the date on the applications read July 3,1990? Deferring the question of the report, it is also unclear why the police did not even tell Britton about the accusations before he left BPD headquarters. As far as Britton knew, when he left the building that evening, the police had taken his rifle, for “safekeeping”— a weapon which they conceded was legally in Britton’s possession when he entered BPD Headquarters. On June 30th, nothing else occurred. This fact, combined with the lack of a “time completed” entry on Maloney’s supplemental incident report, could well have suggested to a reasonable jury that the defendants decided to bring the charges after Britton left. Indeed, on this record the jury was entitled to infer that Britton’s litigious phone call triggered the decision to institute the charges. Britton threatened litigation in a phone call on the day of the incident, June 30, 1990: “I hope I’m not going to have to sue you to get my rifle back.” By the July 3, 1990, visit to police headquarters, he was more explicit — that the rifle’s seizure violated the Fourth Amendment. Finally, Stampley’s testimony directly contradicted the officers’ statements. Not only did Stampley testify that he chased Britton on that night — an explanation making Brit-ton’s bizarre story entirely plausible — he also said he never told the officers that Britton had threatened him with a rifle. While the defendant introduced Stampley’s criminal record as impeachment (Trial Exh. 28), a reasonable jury could have concluded he was telling the truth. No evidence was introduced to suggest that Britton had offered Stampley any deals or inducements for his testimony. The jury could simply have decided that Stampley was a more credible witness than either Dooley or Maloney. Some of the physical circumstances also favored the plaintiff’s case. If it was Britton who had threatened Stampley and Loughlin, why would he seek refuge in BPD Headquarters? It seems an unlikely place to go if one has just committed a crime. The defendant emphasizes that Stampley and Loughlin also traveled to BPD headquarters, arguing their presence at the station makes it improbable that they had chased and threatened to kill Britton. But Stampley admitted that he had been chasing Britton, so the fact that Stampley chose to follow Britton to police headquarters only supports Britton’s story. A jury could also have considered the fact that Britton was not arrested to be significant, suggesting that the defendants had no information indicating that he had assaulted anyone that evening. Indeed, on February 11, 1997, during deliberations, the jury submitted five questions, one of which was, “Are people normally arrested for assault with a dangerous weapon?” (Trial Record, Docket entry # 189). While the defendants stressed the fact that Britton entered police headquarters with an unloaded weapon, the officers admitted that in their view, under the circumstances, this was not illegal. In any case, Britton was never charged with illegal possession of a firearm. Maloney testified that he found Britton’s story unbelievable and that he felt the events of the evening inspired “a certain urgency, a certain need to bringing this before the court.” (Day 6, page 57, lines 16-18). Nonetheless, Maloney’s urgency and skepticism did not translate into arresting Britton. A reasonable jury could have asked the question: If Britton was so dangerous, and the officers were so worried that violence would ensue if he was permitted to keep the rifle, why allow him to leave the station at all with his five-year old daughter in tow? b. Termination in the Plaintiff’s Favor The defendant argues that Britton did not prove that the prosecution terminated in his favor. Under Wynne v. Rosen, 391 Mass. 797, 464 N.E.2d 1348 (1984), a plaintiff can meet this prong when “the district attorney formally abandons the criminal proceedings by a nolle Prosequi or a motion to dismiss.” Id. at 800, 464 N.E.2d 1348. The reasons for the government’s abandonment must be consistent with the “innocence of the accused.” M The charges against Britton were dismissed for want of prosecution. See Trial Exhibit 2 (noting “Dismissed FWOP”). Stampley and Loughlin did not appear. Concededly, dismissal on a procedural or technical default does not meet the requirements for a termination in the plaintiffs favor. Id. But dismissal for want of prosecution is neither procedural or technical. See Noel v. Town of Plymouth, 895 F.Supp. 346, 355 (D.Mass.1995) (holding that “[dismissal of a case because of a named defendant’s [sic witness’] failure to appear or because of the destruction or loss of exculpatory evidence does not constitute a procedural or technical default.”). Want of prosecution is also neither á vague nor inadequate ground for dismissal. See De Sa v. Sniger, 2 Mass.App.Ct. 819, 819, 309 N.E.2d 503 (1974) (declaration which alleged only that a criminal complaint had been dismissed failed to adequately specify the nature of the dismissal and did not show termination in plaintiffs favor). There were no other possible charges. See Guay v. Kappelle, 70 F.3d 1252 (1st Cir.1995) (holding doctor could not show underlying prosecution had terminated in his favor; though original plaintiff had lost on the negligence claim, he had still prevailed on a lack of informed consent theory). Nor was the dismissal undermined in any way by evidence of a settlement with the defendant. See Simmons v. City of Brockton, 93-12201 (D.Mass., Dec. 15, 1994), 1994 WL 725181, *1 (holding plaintiff could not show termination in her favor since underlying criminal ease was dismissed when she stipulated that she would not run an illegal boarding house in the future). The charge was serious — it had been pending only two months; the final dismissal occurred on the date of the third court appearance. Yet, the prosecutor never sought leave to refile the charges or ask for a continuance to secure the witness’ attendance. Dismissal in these circumstances favors Britton and is consistent with his innocence. Though the Massachusetts courts have not explicitly dealt with a malicious prosecution dismissed for want of prosecution, a parallel New York case is instructive: While there is certainly a distinction between a voluntary or formal abandonment by a prosecutor and a dismissal brought about by his neglect or unexcused failure to proceed, the difference is more apparent than real, for in both circumstances the criminal charges have been terminated by the prosecutor’s non-pursuit of the charges against the accused. In each case, the failure to proceed to the merits compels an inference of such an unwillingness or inability to do so as to imply a lack of reasonable grounds for the prosecution. Loeb v. Teitelbaum, 77 A.D.2d 92, 432 N.Y.S.2d 487, 494 (1980), modified on other grounds, 80 A.D.2d 838, 439 N.Y.S.2d 300 (1981) (cited with approval in Wynne v. Rosen, 391 Mass. 797, 800, 464 N.E.2d 1348 (1984)). 2. Abuse of Process The “essential elements” of the state law tort of abuse of process are that: (1) process was used; (2) for an ulterior or illegitimate purpose; (3) resulting in “damage.” Beecy v. Pucciarelly 387 Mass. 589, 595-96, 441 N.E.2d 1035 (1982). Such an action can lie against police officers who “use a lawful criminal process to accomplish an unlawful purpose.” See Santiago v. Fenton, 891 F.2d 373, 388 (1st Cir.1989). Even though Britton need not prove the groundlessness of the defendants’ actions to support his claim for abuse of process, the SJC has stated, “[t]hat the person commencing the litigation knew or had reason to know his claim was groundless is relevant, however, as tending to show that the process was used for an ulterior purpose.” Fishman v. Brooks, 396 Mass. 643, 652, 487 N.E.2d 1377 (1986). The Supreme Judicial Court has also stated that an abuse of process claim fails when plaintiff does not demonstrate an “ulterior purpose.” Beecy, 387 Mass, at 589, 441 N.E.2d 1035 (defendant’s erroneous commencement of a collection action against plaintiff was insufficient to show the requisite ulterior purpose for a claim of abuse of process). Again, the evidence before this Court was sufficient for a jury to find for Britton on the abuse of process claim. Charges were instituted; probable cause was lacking; and the nexus between Britton’s threat and the filing of the charges provides the ulterior purpose. 3. State Civil Rights Claims The Massachusetts Civil Rights Act is violated when a defendant, through “threats, intimidation, or coercion” seeks to interfere with the plaintiff’s “exercise or enjoyment’of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth.” Mass. Gen. Laws, ch. 12, § 111. The close nexus between Britton’s threat to sue and the filing of charges supports the jury’s verdict that the defendant filed charges in an effort to intimidate the plaintiff into dropping any possible claims. Here too, Britton provided the jury with reasonable grounds upon which they could find that Maloney violated Britton’s state civil rights. C. Errors in the Jury Instructions Pursuant to Maloney’s motion for a new trial under Fed.R.Civ.P. 59, counsel makes a number of challenges to the instructions. The defendant first makes what can be characterized as procedural challenges: He claims that there was no charge conference within the meaning of Rule 51, Fed.R.Civ.P., that written instructions were improperly submitted to the jury after they had been deliberating for two days, and that an amended verdict slip was improperly distributed, as well. In fact, not only was there a charge conference that met the requirements of the rule, counsel was given opportunities to object to and shape the instructions far, far, beyond that required by the rule or indeed, justified by his conduct. Counsel filed instructions late, repeatedly sought to raise objections during deliberations that he had never raised at side bar after the jury had been instructed, or even on the first day of deliberations with the Court’s written instructions in hand, and now makes arguments never mentioned before at all, mischaracterizing the record, the rulings, and the issues to boot. The fact of the matter is that the Court adopted many of his objections — however ill timed or inappropriately presented. Counsel also challenges the content of certain of the instructions, apart from procedural issues. But these challenges cannot be separated from counsel’s actions or more appropriately, his inaction. It is plain that the Court cannot consider on a motion for a new trial objections never raised at all during the trial. While the Court indulged counsel for Maloney while the jury was deliberating, when corrections or amendments to the charge could be still made, that indulgence has to stop. If counsel did not preserve the issue, it is gone. If additional instructions responsive to counsel’s objections were delayed, it is because counsel failed to mention them in a timely fashion. In any event, nothing in the record suggests that whatever “corrections” were given were too late. If any party to this action is taking action too little, too late, it is counsel for the defendant. 1. Procedures Followed a. Charge Conference Defendant claims that “the Court provided its initial verbal instruction to the jury without any prior conference regarding what the substance of the instruction would be.” Motion of Defendant, Patrick J. Maloney, For a New Trial or Remittitur, p. 4. The claim is wholly without merit. Either counsel was not paying attention, or makes arguments without regard to what Rule 11, Fed.R.Civ.P. describes as a “belief formed after reasonable inquiry [that it is] it is well grounded in fact.” On Monday, February 10, 1997, at 10:10 a.m. the Court held a charge conference with the parties which met all of the requirements of Rule 51. (Day 5, pp. 8-27.) Rule 51 provides: At the close of the evidence or at such earlier time during the trial as the Court reasonably directs, any party may file written requests that the Court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon requests prior to their arguments to the jury. Typically, the requirement that counsel be “informed” about the proposed instructions is met by an oral charge conference in which the Court outlines its proposed instructions in order to give the parties an opportunity to object in a timely fashion. The Court did precisely that. In fact, the Court’s usual procedure is far more elaborate but because of counsel’s total disregard of the rules, the Court was unable to follow it in toto. Still, usual procedure or not, counsel had myriad opportunities to object — pre-instruction, post-instruction, and during jury deliberations but pre-verdict. i) The Court’s Usual Procedure The Court’s obligation to instruct so that jurors can understand, and the Court’s obligation to instruct on issues outlined by the Courts of Appeals sometimes collide. The safest procedure is to use the language of the appellate decisions; at the same time, that language oftentimes is far too complex for a lay audience. Accordingly, to accommodate both obligations, the Court submits a written draft of the instructions composed directly on the Court’s computer, to counsel. (Indeed, at the pre-trial conference, counsel are asked to submit their jury instructions on disk so that their instructions can be “cut and pasted.”) A written draft is distributed as early before closing argument as possible. Where possible, draft written instructions are faxed to the parties the night before the charge conference. The purpose of this procedure is several fold. It enables the Court to translate legal language into simpler terms, with the approval of counsel. It enables counsel to weigh in, not only on the subject matter of the instructions, but also their language, the order of their submission, etc. It leads to a more informed charge conference, with all parties dealing with the same script. ' Then, after the Court has read from the instructions, the written version is distributed for counsel’s final approval, before submission to the jury. What the jury gets is more than simply a transcript of the Court’s remarks. It gets the instructions with a table of contents, and formatted to make them easier to read. The parties have several chances to review the instructions: before the charge conference when they get the draft written instructions; at the charge conference when the document is reviewed; at side bar after the instructions; and before the submission of instructions in written form to the jury. It was especially important to follow this procedure in the Britton case. Mr. Britton was pro se. The Court relied on defendant’s counsel to produce a full set of instructions in a timely fashion, and to correct errors inadvertently made. Counsel for the City did not cooperate at all. ii) The Britton Procedure The Court’s pretrial order required a pretrial memo to be submitted to the court five days before trial, which memo was to include jury instructions. Trial started on February 3, 1997. Not surprisingly, the pro se plaintiff did not comply. What was particularly disconcerting is that counsel for the defendant did not bother to either. On Thursday, February 6,1997, both sides were asked for their instructions. Defense counsel stated: “I have jury instructions. They’re back at the office, naturally.” The plaintiff and defendant promised to file instructions the next day. Instead, counsel for the defendant finally submitted instruct