Before Wagner, Chief Judge, Steadman, Associate Judge, and
Gallagher, Senior Judge.
The opinion of the court was delivered by: Steadman, Associate Judge
Appeal from the Superior Court of the District of Columbia Civil Division (Hon. Nan R. Shuker, Trial Judge)
This is a civil action for damages brought against the District of Columbia, Officer John Kelsey, and other "unknown metropolitan police officers" stemming from a detention and a public partial strip-search of Alton Minor. Prior to jury deliberations, the trial court granted a directed verdict for the District of Columbia on the issue of municipal liability under 42 U.S.C. § 1983 (Supp. II 1996). A jury found Officer Kelsey liable under common-law claims of false arrest and intentional infliction of emotional distress and under 42 U.S.C. § 1983 for unlawful arrest in violation of Minor's Fourth Amendment rights. *fn1 The jury also found an unknown police officer liable for assault and battery based on the strip-search of Minor. The jury awarded Minor undifferentiated lump-sum compensatory damages of $20,000 and punitive damages of $10,000. *fn2
Judgment was entered that Minor recover of the District and Kelsey, "jointly and severally," compensatory damages in the amount found by the jury and the punitive damages against Kelsey alone. On appeal, the District and Officer Kelsey ("District") argue only that the evidence was insufficient for the jury to find in Minor's favor on any of the claims. *fn3 In what appears to have been a protective cross-appeal, Minor challenges the directed verdict for the District on the issue of municipal liability under 42 U.S.C. § 1983. We affirm.
The facts of this case were hotly contested at trial. Minor's version of what happened, corroborated in part by three other witnesses, was as follows. Around 8:00 p.m. on May 19, 1992, Minor was sitting on a fence rail in front of his apartment house at the corner of 7th and O Streets, N.W., in Washington, D.C. He wore black jeans and a black shirt. An acquaintance, Steve Carney, came out of a building and walked past Minor on his way to the O Street Market. At that point, a police car came by but neither Carney nor Minor reacted in any way. Officers Kelsey and Fontz jumped out of the car, and Officer Fontz grabbed Carney and wrestled him to the ground. Kelsey told Minor "You, bring your black motherfucking ass over here." Minor said he did not throw anything or place his hands in his pocket, and that before he could come down off the fence Kelsey grabbed him from behind and pulled him down to the ground, causing his back and head to strike the ground and suffer injury. Minor was handcuffed and frisked.
Additional squad cars arrived and Minor was placed inside one of them. After about ten minutes, Minor was taken out of the car, his pockets were searched, and officers found a small penknife. Ten minutes later, he was again removed from the car and an unidentified police officer pulled Minor's trousers down to his knees and searched the rim of his underwear. At the time of the search, a crowd including a number of females had gathered and saw Minor with his pants down and underwear exposed. No contraband was found in either search. About ten minutes later, Minor was released. Minor suffered from a swollen lower and upper back and a knot on the head from being pulled down to the ground off the fence; he received emergency care, additional medical care for six months, and therapy. Minor further testified that he was embarrassed and humiliated by the way that he was publicly searched.
Plaintiff's eyewitnesses Denise Kimlaw and Leroy Mills corroborated Minor's testimony that Steve Carney did not try to run when the officers arrived at the scene and that Minor made no attempt to leave the rail before Officer Kelsey grabbed him from behind and pulled him to the ground. Kimlaw, who witnessed the incident at a distance of 15 to 20 feet, testified that she did not see Minor put his hands in his pockets as the officer approached, nor did she see Minor flip anything in the air after Kelsey grabbed him. Mills stated that he had a clear view of Minor's hands, that Minor did not put his hands in his pockets, and that Minor did not throw any object out of his hands once he was grabbed by the officer. Both stated that there was no grass growing in the area at the time of the incident.
The District's primary witness was Officer Kelsey, who testified to the following version of events: Kelsey and his partner Officer Fontz received a radio report at approximately 7:45 p.m. stating that two individuals located at the corner of 7th and O Streets, N.W. were selling or holding narcotics. Kelsey testified that the report described the individuals in question as black males, about five feet eleven, in their twenties, wearing black shirts and black pants. They drove the squad car to 7th and O Streets, arriving within two or three minutes, and observed two individuals fitting the report description at the corner in question. Kelsey saw no exchange between Minor and Carney. As soon as the officers exited the vehicle, Carney started running. Kelsey walked toward Minor and told him "in a very boisterous way" not to move. *fn4 Kelsey testified that as he approached Minor, Minor made a sudden movement toward his pocket and, concerned about destruction of evidence or a weapon, Kelsey grabbed Minor in a bear hug and pulled him off the fence. Once he had grabbed Minor, a small object came out of Minor's hand and went up in the air, although Kelsey could not see where it landed because of the grass in the area. Kelsey said he never got a chance to look where the object had fallen because an aggressive crowd had formed and he feared for personal safety.
Kelsey gave Minor a light pat-down search, found no weapons or contraband, and put him in a scout car. Kelsey testified that he did not search Minor after that. Kelsey's deposition testimony was read in court to contradict this statement. At his deposition, Kelsey testified that he had conducted a public search of Minor in which he unbuckled and dropped Minor's pants and looked in the waistband of Minor's underwear to see if he was hiding narcotics. No drugs, no weapons, and no large sums of money were found on Minor. At trial Kelsey said that he remembered that it was Carney, not Minor, that he had searched in this manner.
Kelsey stated that, based on the radio tip regarding the two individuals selling drugs, he only had cause to do an investigatory stop of Minor. He subsequently "was arresting Mr. Minor because of what I believed were narcotics that he flipped out of his hand." Although he testified that he had arrested Minor, in the report he filed on the incident Kelsey classified the detention as a "stop and frisk," rather than an arrest, because Minor had been released and had never been ...