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September 26, 1991


Appeals from the Superior Court of the District of Columbia; Hon. Steffen W. Graae, Trial Judge

Rogers, Chief Judge, Farrell, Associate Judge, and Reilly, Senior Judge. Opinion for the court by Associate Judge Farrell. Dissenting opinion by Senior Judge Reilly.

The opinion of the court was delivered by: Farrell

Woodward & Lothrop, which operates a downtown department store (among others), and Dwayne Wigfall and Earl Sellers, two security guards employed by the store, appeal from a jury verdict in favor of Carnell Hillary on Hillary's tort claims for false arrest, false imprisonment, assault and battery, and conversion, and his claim under 42 U.S.C. § 1983 (1989) for violation of his civil rights. Contesting the judgment on the constitutional tort claim, appellants assert that the trial Judge erred in concluding as a matter of law that Wigfall and Sellers, who were special police officers commissioned under D.C. Code § 4-114 (1988), *fn1 acted under color of state law in subduing, arresting and detaining Hillary when he entered the store after closing time in May of 1986. Appellants also contend that the Judge erred in allowing the jury to enter a separate finding as to damages on the § 1983 claim, arguing that the components of damages recoverable under the common law tort claims are identical to those comprising § 1983 damages, and thus Hillary received an excessive award for his compensable injuries. Appellants further assert that the Judge erred in allowing Dwayne Wigfall to testify that Woodward & Lothrop had terminated his employment for misappropriation of funds. Finally, both sides challenge aspects of the trial Judge's award of attorney's fees to Hillary under 42 U.S.C. § 1988.

For the reasons discussed below, we find no error in the judgment on the jury verdict, and affirm it. We must, however, vacate the award of attorney's fees and remand for a statement of findings and Conclusions sufficient to permit meaningful review of that award.

I. Facts and Proceedings Below

On the evening of May 9, 1986, Hillary entered the Woodward & Lothrop store at 11th and F Streets, N.W., to buy clothing. A cashier told him the store was closing. According to Hillary, as he turned to leave, Sellers, a security guard employed by the store, grabbed him, turned him around, and told him to accompany him. As they were walking, Sellers struck him in the right eye without provocation. In the ensuing scuffle Sellers called out for assistance and was joined in the attempt to subdue Hillary by his supervisor, Wigfall. They wrestled Hillary to the floor employing a headlock and landing several punches in the process, and handcuffed him. At some point Hillary was searched and, he asserted, two hundred dollars was taken from his pocket. He was taken in handcuffs across the street to the Woodward & Lothrop security office located in a separate building, where he was detained. Metropolitan Police Department Officers were called to transport him, but after two unidentified officers arrived he was released, and no criminal charges were brought against him. Hillary testified that the two hundred dollars taken from him during the search was never returned. According to medical experts who testified at trial, he suffered a fracture of the zygoma (the cheek bone), permanent drooping of his right eyelid, and permanent restriction in his field of vision as a result of the injuries.

On February 6, 1987, Hillary filed suit against Woodward & Lothrop in Superior Court alleging false arrest, false imprisonment, assault and battery, invasion of privacy, intentional infliction of emotional distress and conversion. On December 11, 1987, he filed an amended complaint joining Sellers and Wigfall as defendants and adding a count under 42 U.S.C. § 1983 for violation of his constitutional rights to bodily integrity and against unlawful search and seizure. The case proceeded to trial before Judge Graae and a jury, and at the close of the evidence the Judge directed a verdict against Hillary on the invasion of privacy and intentional infliction of emotional distress counts. The Judge also ruled as a matter of law that Sellers' and Wigfall's actions were taken under color of state law, and instructed the jury accordingly as part of the charge on the § 1983 claim. *fn2

The Judge prepared and submitted to the jury a verdict form containing places for the jury to indicate whether it found for or against the plaintiff on each of the remaining counts. For the common law torts, the form included a space for an award of compensatory damages against all defendants jointly and severally, and a space for punitive damages against the individual defendants only. It also contained a space for a separate award of damages on the constitutional tort claim. The jury returned a verdict in favor of Hillary on all counts, awarding him $845 in compensatory damages against all defendants, $10,000 in punitive damages against Sellers and Wigfall on the common law tort claims, *fn3 and $40,000 against all defendants on the constitutional tort claim. The Judge denied the defendants' motion for a new trial or for a remittitur, and an appeal was noted.

On May 16, 1989, Hillary applied for attorney's fees under 42 U.S.C. § 1988, requesting an award based on hours expended on the case and an upward adjustment owing to the uncertain prospect of success and delay in receipt of payment of fees. The Judge entered an order granting the application in part by awarding the base amount, but denying the requested multipliers. The defendants noted a second appeal from the order awarding attorney's fees, and Hillary noted a cross-appeal from the Judge's denial of his request for upward adjustment of the base amount.

II. Section 1983 Issues

A. Color of State Law

Appellants contend that the trial Judge erred in concluding, as a matter of law, that Sellers and Wigfall acted under color of state law in subduing, arresting and detaining Hillary. We find no error in the Judge's resolution of this issue, as Sellers and Wigfall were exercising authority conferred on them by their commission as special police officers. *fn4

The trial Judge relied on decisions of this court holding that special police officers act as agents or instrumentalities of the state in conducting searches and seizures incident to their power to arrest, and thus are subject to the restrictions of the Fourth Amendment. See, e.g., United States v. Lima, 424 A.2d 113, 119-20 (D.C. 1980) (en banc); Alston v. United States, supra note 4, 518 A.2d at 441-43; Lucas v. United States, 411 A.2d 360, 362 (D.C. 1980). We agree that this principle controls the question presented here.

To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). A person acts "under color of state law" when he exercises a "power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Id. at 49 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). *fn5 In Lima, supra, we acknowledged that involvement by the state is necessary to trigger the protections of the Fourth Amendment: "a private individual no constitutional violation . . . absent governmental involvement in the intrusion." 424 A.2d at 117. The "state action" we deemed necessary to invoke the Fourth Amendment in Lima, Alston, and Lucas, and action "under color of state law" for § 1983 purposes, are "obviously related" if not coextensive concepts. Lugar v. Edmondson Oil Co., 457 U.S. 922, 928 (1982). The Supreme Court recently iterated that if the defendant's conduct satisfies the "state action" requirement for purposes of the Fourteenth Amendment, "that conduct is also action under color of state law and will support a suit under § 1983." West v. Atkins, 487 U.S. at 49 (quoting Lugar v. Edmondson Oil, 457 U.S. at 935). Thus, we have little difficulty concluding that action by a special police officer fairly attributable to the state for purposes of the Fourth Amendment under Lima, Alston and Lucas also satisfies the "color of law" prerequisite for a § 1983 suit.

United States v. McDougald, 350 A.2d 375 (D.C. 1976), on which appellants rely, is not to the contrary. There we held that the mere fact a commissioned special police officer does the allegedly unconstitutional act does not itself denote official action. Id. at 378. In particular, we refused to attribute to the state an alleged due process violation -- viz., a special police officer's instruction to a witness not to discuss a criminal case with defense counsel outside the presence of the prosecutor -- because the officer, in conveying the policy to the witness, "was not performing a public function authorized by his commission as a special policeman." Id. In the present case, the required nexus with the state is furnished not by the fact of the commission alone -- as in McDougald -- but by the convergence of the authority bestowed by the commission and the officers' actions. *fn6 In Alston, citing McDougald, we recognized that special police officers are not "in all their actions" equated with regular police officers, 518 A.2d at 443 (emphasis added), but we held that a special police officer does act as a state agent or instrument when the challenge involves the arrest of a suspect and actions related thereto -- the broad [special police officer] power that distinguishes the from a private citizen." Id. *fn7

Appellants may be correct that the immediate impetus for an arrest and accompanying actions by a special police officer is to secure the interests of the private employer. But in exercising authority conferred by the state and not enjoyed by private citizens, the officer exercises a "power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. at 49. Sellers and Wigfall acted under color of this authority in forcibly arresting Hillary, searching him incident to the arrest, and seizing the allegedly converted two hundred dollars. In "acting as public officers" they "assumed all the powers and liabilities attaching thereto." NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 429 (1947). *fn8

B. Separate Award of Damages for § 1983 Claim

Appellants further assert that the jury should have been asked to return a single verdict on compensatory damages, and that the court erred in submitting damages on the common law torts and the § 1983 claim to the jury separately. They argue that the elements of compensatory damages recoverable for the torts of false arrest, false imprisonment, assault and battery, and conversion are identical to those recoverable for the violations of constitutional rights that Hillary alleged, and that absent some element of injury not compensated by the common law tort damages, the return of two awards for essentially the same injury constitutes an excessive recovery.

Congress intended the § 1983 cause of action to supplement pre-existing state remedies available to redress injuries when the acts causing those injuries also constitute a deprivation of constitutional or federal rights. Monroe v. Pape, 365 U.S. 167, 183 (1961), overruled in part by Monell v. Department of Social Servs., 436 U.S. 658 (1978). But while a plaintiff may seek damages for his injuries on a variety of legal theories, "a cardinal principle of law is that . . . a plaintiff can recover no more than the loss actually suffered." Kassman v. American Univ., 178 U.S. App. D.C. 263, 267, 546 F.2d 1029, 1033 (1976) (per curiam); see Reid v. District of Columbia, 391 A.2d 776, 777 (D.C. 1978). The purpose of money damages recoverable for violation of constitutional or federal rights under § 1983, like that of common law tort damages, is to provide compensation for the injury caused by the defendant's breach of duty (or intentional tort). Memphis Community School Dist. v. Stachura, 477 U.S. 299, 306-07 (1986); Carey v. Piphus, 435 U.S. 247, 266 (1978) (jury may award nominal damages for deprivation of a constitutional right absent proof of injury, but "substantial damages should be awarded only to compensate actual injury"). In determining the elements of damages recoverable under § 1983, the Supreme Court has instructed courts to look first to common law tort rules of recovery for pecuniary and non-pecuniary loss, specifically whether these provide fair compensation for injuries caused by the particular deprivation of constitutional rights alleged. Id. at 257-58. While application of tort law analogs may not, in all cases, fairly compensate for violation of constitutional rights, id. at 258, "actual injury" remains the touchstone, and "damages based on the abstract 'value' or 'importance' of constitutional rights are not a permissible element of [§ 1983] damages. . . ." Stachura, 477 U.S. at 310.

Hillary alleged that he was accosted in the store, illegally arrested, beaten, dragged across a public street in handcuffs, detained and wrongfully deprived of two hundred dollars ill an unlawful search and seizure. These acts caused him monetary loss, physical injury, mental anguish, humiliation, and embarrassment. He sought compensation for the injuries by alleging violation of his constitutional rights to be free from unlawful arrest, search and seizure, and physical abuse, and by his common law tort claims for false arrest, false imprisonment, assault and battery and conversion. Thus, as appellants assert, Hillary alleged no injury in his § 1983 claim that could not fully be compensated by recovery on his common law claims. Stachura, 477 U.S. at 307 (§ 1983 damages can include compensation for monetary loss, personal humiliation, mental anguish and suffering). Because his § 1983 claim essentially was an alternative basis for the same recovery sought by way of the tort claims, submission of two verdict forms on damages created a substantial risk that the jury would allow him to recover twice for a single injury. See Clappier v. Flynn, 605 F.2d 519, 528-30 (10th Cir. 1979). Separate damage verdicts also could have suggested to the jury that there was a compensable component of a "constitutional" deprivation independent of the injury actually suffered, contrary to Stachura. *fn9

Accordingly, we must determine whether either of these risks materialized -- whether the jury's verdict reflects double recovery or likely was based on any other factor than the actual amount of injury suffered. If so, then it must be set aside.

In overruling the defendants' objection to bifurcation of damages on the ground that the jury might award a double recovery, the trial Judge told the parties:

[The jury] is going to be instructed very clearly on the question of damages that they are only to award damages that they believe will compensate on what he is fairly entitled to in whatever category that they are asked to do it.

Although the Judge then instructed the jury to return separate verdicts on damages, in his charge on the elements of damages he did not distinguish among Hillary's various claims but instead explained -- as to all claims -- that the jury must "determine what amount will fairly and reasonably compensate the Plaintiff for his injuries and damages." They were to consider

the extent and duration of any bodily injuries sustained; the effect such injuries . . . on the overall physical and mental health and well-being of the Plaintiff; any physical pain and mental anguish the Plaintiff has suffered; any disfigurement or deformity and any humiliation or embarrassment associated with it; any inconvenience or discomfort that has been suffered by the Plaintiff. . . or [that he] will probably suffer in the future; any ...

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