concurring in part and dissenting in part.
I would affirm the judgment of the district court. Regrettably, I cannot join Section II.A’s discussion of the jury instruction on verbal opposition to police action, which, in my view, threatens “[tjhis court[’s] ... reputation as the strictest enforcer of Rule 51,” Hammer v. Gross, 932 F.2d 842, 847 (9th Cir.1991), and creates a direct intra-circuit conflict with Grosvenor Properties Ltd. v. Southmark Carp., 896 F.2d 1149 (9th Cir.1990). Therefore, I respectfully dissent and would not reach the question of qualified immunity, which the majority discusses in Part III.
I
Federal Rule of Civil Procedure 51 states: No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.
Fed.R.Civ.P. 51 (emphasis added). Our court has “interpreted this rule strictly and ha[s] stated that, ‘[i]n a civil case, we may not review a jury instruction in the absence of a proper objection.’” McGonigle v. Combs, 968 F.2d 810, 823 (9th Cir.1992) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 638 (9th Cir.1991)); see also 9 C. Wright & *1352A. Miller, Federal Practice and Procedure § 2558, at 674 (1971) (“[T]he Ninth Circuit stands alone in reading Civil Rule 51 literally and denying that there is any power to reverse .for plain error in an unobjected-to instruction in a civil case.”) The party objecting to the instruction must bring “into focus the precise nature of the alleged error in the district court’s instruction.” McGonigle, 968 F.2d at 824 (emphasis added).
Gulliford now argues that he was arrested for obstructing a police officer without probable cause in violation of the Fourth Amendment. He does not claim on appeal that his First Amendment right verbally to hinder, delay, or obstruct the police was also violated.
Gulliford correctly argues before this court that jury instruction 151 was flawed because it failed to inform the jury that the police lacked probable cause to arrest him for speech that “knowingly hinder[ed], delay[ed], or obstruct[ed]” the police but did not include “fighting words [ ]or ... obscene or opprobrious language.” Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 2509, 96 L.Ed.2d 398 (1987). Gulliford’s objection to jury instruction 15 at trial rested on an entirely different ground. Gulliford’s argument was as follows:
[The instruction] does not include a claim for a specific First Amendment violation, and as we indicated in our trial brief and in discussions previously with the court, we believe that both the First Amendment and the Fourth Amendment are implicated and that a violation of either would give rise to a cause of action.
In other words, Gulliford argued at trial that instruction 15 did not separately address his (now abandoned) claim that his First Amendment rights had been violated as well. Gulliford’s (perhaps incorrect) argument was that the instruction was exclusively concerned with his Fourth Amendment claim — not that the instruction misstated the elements of that claim.
Of course, the contours of Gulliford’s Fourth Amendment claim are shaped both by Wash. Rev.Code § 9A76.020 — -the Washingon statute that prohibits obstruction of law enforcement officers — and by the First Amendment. Section 9A.76.020 provides: “Every person who ... (3) shall knowingly hinder, delay, or obstruct any public servant in the discharge of his official powers or duties; shall be guilty of a misdemeanor.” Meanwhile, the First Amendment gives individuals the right to verbally obstruct public servants as long as they do not use “fighting words [ ]or ..! obscene or opprobrious language.” Houston v. Hill, 482 U.S. 451, 462, 107 S.Ct. 2502, 2509, 96 L.Ed.2d 398 (1987). Viewed in conjunction with Wash. Rev.Code § 9A.76.020, the First Amendment helps to define Gulliford’s right under the Fourth Amendment not to be arrested for obstructing the police without probable cause.
However, Gulliford’s objection at trial to jury instruction 15 had nothing to do with his rights under the Fourth Amendment. Rather, Gulliford wanted the district court to instruct the jury separately regarding an alleged violation of his First Amendment right to verbally obstruct police officers. Because Gulliford failed to “stat[e] distinctly the matter objected to' and the grounds of [his] objection [at trial],” Fed.R.Civ.P. 51 (emphasis added), he is precluded from raising his Fourth Amendment argument on appeal.
II
The majority invokes the “pointless formality” exception to Rule 51. As we explained in United States v. Payne, 944 F.2d 1458 (9th Cir.1991), “an objection may be a ‘pointless formality’ when (1) throughout the trial the party argued the disputed matter with the court, (2) it is clear from the record that the court knew the party’s grounds for disagreement with the instruction, and (3) the party offered an alternative instruction.” Id. at 1464.
It is undisputed by the parties that Gulli-ford offered an alternative instruction. Gulli-*1353ford has failed to demonstrate, however, either that “throughout the trial [he] argued the disputed matter -with the court,” or that “it is clear from the record that the court knew [Gulliford’s] grounds for disagreement with the instruction.” Id. (emphasis added). Apart from noting that Gulliford submitted-an alternative instruction (thereby satisfying only the third element of the pointless formality test), the majority does not point to anything in the trial record to support its conclusion that the pointless formality exception to Rule 51 applies here.
In Grosvenor Properties Ltd. v. Southmark Corp., 896 F.2d 1149 (9th Cir.1990), the defendants submitted an alternative jury instruction that was rejected by the district court. See id. at 1152. At a sidebar conference called to consider the instructions, the defendants stated that their proposed instruction had not been given. See id. The district court responded that it had rejected the instruction and that it was unnecessary for counsel to repeat previously submitted instructions or objections. See id. We held that such a “sequence of events is not sufficient to constitute a sufficient objection to the instructions that were given, as Rule 51 is applied in this circuit.” Id. If the defendants in Grosvenor did not succeed in preserving their objection despite complaining' that their proposed instruction had not been given, then certainly Gulliford, who did nothing to call attention to the district court’s rejection of his instruction, failed to preserve his objection.
In an attempt to distinguish Grosvenor, the majority relies upon a sentence from that opinion. See Majority Opinion at 1621 n. 6 (“However, in contrast to the instant ease, the alternative jury instruction in Grosvenor failed ‘to state distinctly the matter objected to and the ground of the objection as required by Rule 51.’”) (quoting Grosvenor, 896 F.2d at 1153). The relevant passage in Grosvenor, however, states, in full:
Southmark argues that it máde the required specific objection to the instruction that failed to state that termination of the joint venture would end fiduciary duty, and that it submitted alternative theories ■ of liability to the jury by way of special verdict questions. It contends that it did so by its submission of proposed jury instruction 22. In addition, at a sidebar conference called to consider corrections and additions to the instructions, Southmark’s counsel stated that instruction 22 had not been given and the court responded that it had. rejected that instruction. At that same conference the court noted that it was not necessary for counsel to repeat previously submitted instructions or objections.
However, this sequence of events is not sufficient to constitute a sufficient objection to the instructions that were given, as Rule 51 is applied in this circuit. This court has held that remarks made by counsel in chambers, discussion of law in pretrial memoranda and mere submission of proposed instructions did not clearly show that the issue was focused before the court.
In addition, an examination of proposed instruction 22 suggests that it was not sufficient to state distinctly the matter objected to and the ground of the objection as required by Rule 51.
Id. at 1152-53 (internal citations omitted). As the above passage demonstrates, our holding in Grosvenor, that a “sequence of events” which includes the submission of an alternative jury instruction does not “constitute a sufficient objection to the instructions that were given,” did not turn on whether that alternative instruction “state[d] distinctly the matter objected to and the ground of the objection.” Id. Although we observed (“additionally]”) in Grosvenor that the alternative instruction was unclear, id. at 1153 (citing Brown v. AVEMCO Inv. Corp., 603 F.2d 1367, 1371 (9th Cir.1979)), the clarity of the alternative instruction was irrelevant to Grosvenor’s analysis of the “sufficiency]” of the relevant “sequence of events.” Id. at 1152. Far from distinguishing Grosvenor, the majority’s discussion of that case demonstrates why the majority opinion is in direct conflict with it.
I respectfully dissent.
. Jury instruction 15 stated:
The First Amendment protects the right of citizens to verbally oppose and/or challenge police action without risking arrest so long as that challenge does not knowingly hinder, delay, or obstruct any public servant in the discharge of the public servant’s official powers or duties.