The evidence in this case on discrimination because of Benigni's Italian ancestry is admittedly thin.
The City, however, although submitting a requested instruction on equal protection, did not object to the court's instruction submitting that issue. However, we need not rule directly on the equal protection claim since the general verdict in this case is sustainable under the standards enunciated in
Traver v. Meshriy, 627 F.2d 934, 938–39 (9th Cir.1980). In
Traver, we held that given a general jury verdict in a case presenting several theories of recovery, one of which is challenged on appeal as lacking substantial evidence or being erroneous as a matter of law, a reviewing court has the discretion to attribute the verdict to another theory if it was properly submitted to the jury. In the instant case, Benigni's due process theory was clearly supported by evidence and is legally correct. Furthermore, the due process and equal protection theories in this case are practically identical, both being grounded on the allegation of arbitrary law enforcement activity for the purpose of harassment and interference.