Lusby v. T.G. & Y. Stores, Inc.

• Decision Date: 23 November 1984
• Docket Number: Nos. 82-1721,82-1779,s. 82-1721
• Parties: Solomon LUSBY, Vaughn Lusby and Alvin Jerard Lusby, Plaintiffs-Appellees, v. T.G. & Y. STORES, INC., an Oklahoma corporation; City of Lawton, Oklahoma, a municipal corporation; Charles Gent; Steve Wertz; and Kent Dunegan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1423

749 F.2d 1423

Solomon LUSBY, Vaughn Lusby and Alvin Jerard Lusby, Plaintiffs-Appellees, v. T.G. & Y. STORES, INC., an Oklahoma corporation; City of

Lawton, Oklahoma, a municipal corporation;

Charles Gent; Steve Wertz; and Kent

Dunegan, Defendants-Appellants.

Nos. 82-1721, 82-1779.

United States Court of Appeals,

Tenth Circuit.

Nov. 23, 1984.

Russell D. Bennett, City Atty., Lawton, Okl. (Gerald S. Rakes, Asst. City Atty., Lawton, Okl., with him on the briefs), for defendants-appellants City of Lawton, Steve Wertz, and Kent Dunegan.

Michael W. Hinkle, Oklahoma City, Okl. (Page Dobson and Ronald R. Hudson, Oklahoma City, Okl., with him on the briefs), Holloway, Dobson, Hudson & Bachman, Oklahoma City, Okl., for defendants-appellants T.G. & Y. Stores, Inc. and Charles Gent.

Gretchen A. Harris, Oklahoma City, Okl. (Jack L. Kinzie, also of Andrews, Davis Legg, Bixler, Milsten & Murrah, Oklahoma City, Okl., and Linda G. Scoggins of Spradling, Alpern, Friot & Gum, Oklahoma City, Okl., with her on the briefs), for plaintiffs-appellees.

Before LOGAN and McWILLIAMS, Circuit Judges, and CAMPOS, District Judge. ^*

LOGAN, Circuit Judge.

These appeals arise out of judgments in favor of plaintiffs Solomon Lusby, Vaughn Lusby, and Alvin Lusby--three brothers--who asserted civil rights and pendent state tort claims against the City of Lawton, Oklahoma, two of its police officers, Kent Dunegan and Steve Wertz, T.G. & Y. Stores, Inc., and Charles Gent, another Lawton police officer who was serving while off-duty as a security guard at a T.G. & Y. store in Lawton at the time of the disputed incidents. The jury returned a verdict for all plaintiffs on their 42 U.S.C. Sec. 1983 claims against each of the defendants. On the pendent claims there were differences in the verdicts: on false arrest Solomon and Alvin won against all defendants although Vaughn won only against Gent and T.G. & Y.; on malicious prosecution Solomon and Alvin received a verdict only against Wertz, Dunegan, and the city, and Vaughn succeeded only against Gent and T.G. & Y.; on assault and battery only Alvin prevailed and only against Wertz. The verdict form did not require the jury to separate damages on the particular claims, except among the categories actual, nominal, and punitive. The judgments against each defendant were as follows (all actual damages except as indicated):

                                Solomon  Vaughn           Alvin
                                -------  ---------------  ------
                Gent             $1,000  $3,000           $2,000
                T.G.&Y            4,000  16,000 &          4,000
                                         50,000 punitive
                Wertz             2,000   1,000            2,000
                Dunegan           2,000   1,000            1,000
                City of Lawton    6,000   4,000           10,000
                

The jury found for the plaintiffs on defendant Gent's counterclaim for assault and battery. The trial court entered judgment on the verdicts and awarded attorney's fees to plaintiffs pursuant to 42 U.S.C. Sec. 1988.

The city and police officers Wertz and Dunegan appeal, contending that the trial court erred (1) in failing to grant a directed verdict in favor of the city and the officers on the Sec. 1983 claims; and (2) in refusing to dismiss the pendent claims because plaintiffs did not comply with the Oklahoma Political Subdivision Tort Claims Act, Okla.Stat.Ann. tit. 51, Secs. 151-170. Gent and T.G. & Y. appeal separately, arguing that the trial court erred (1) in refusing to instruct the jury on the qualified immunity Gent asserted as a defense to the Sec. 1983 claims; (2) in permitting the jury to find that T.G. & Y. and Gent acted under color of state law for purposes of Sec. 1983; (3) in permitting the jury to assess punitive damages against T.G. & Y.; (4) in allowing plaintiffs to introduce evidence of Gent's character from his police personnel file; and (5) in instructing the jury regarding damages for future medical expenses and loss of earning capacity. Additionally, all defendants contend that the trial court erred in awarding attorney's fees in excess of the amount provided under plaintiffs' contingent fee agreement with their attorneys.

I

This dispute arose when plaintiffs stopped at a T.G. & Y. store in Lawton, Oklahoma, on July 6, 1979. Vaughn Lusby and Alvin Lusby entered the store and Vaughn selected a pair of sunglasses. Substantial evidence supports the jury's implicit finding that Vaughn went through the checkout line and paid for the sunglasses, and then decided to return to buy some hairspray. Carrying the sunglasses, Vaughn entered the checkout line again and paid for the hairspray. David Jamison, an assistant manager at the store, saw Vaughn pass through the checkout line the second time, carrying the sunglasses, but not paying for them. Jamison summoned Charles Gent, an off-duty Lawton police officer employed by T.G. & Y. as a plain clothes security guard, to investigate.

Gent stopped Vaughn outside the store and asked him for the receipt for the sunglasses. Vaughn explained that he had paid for the glasses but had lost the receipt. Gent showed Vaughn his badge and told him that he was a Lawton police officer acting as a security guard and that Vaughn was under arrest for shoplifting. Gent and Vaughn went back inside the store to pursue the matter.

Two altercations then occurred, the precise details of which the parties dispute. Upon reentering the store Gent immediately sought to escort Vaughn to a back room. On the way to the rear of the store Vaughn stopped and raised his voice, apparently in an attempt to get the cashier's attention. Gent grabbed Vaughn around the throat using a chokehold. Vaughn struggled to loosen Gent's grip; then Gent and other T.G. & Y. employees pinned Vaughn. Solomon and Alvin, having entered the store to see what was wrong, saw the T.G. & Y. employees wrestling with their brother and came to his aid. Another struggle ensued. During this struggle Solomon struck Gent and knocked his glasses off, and Alvin shoved Gent. At some point, Gent struck at least one of the plaintiffs with a pistol. Eventually that struggle ended, and plaintiffs and Gent went to a back office in the store.

In a few minutes Lawton police officers Wertz and Dunegan arrived at the store and took plaintiffs into custody. When they arrived at the police station, another altercation occurred. Again, the parties dispute the precise events. Plaintiffs testified that Wertz hit Alvin in the face and pushed his head into a brick wall. Once inside the jail, plaintiffs were subjected to strip searches, allegedly because Wertz and Dunegan found marijuana paraphernalia in Solomon's possession. Plaintiffs were charged with various offenses: petty larceny (Vaughn), assault and battery (Alvin, Solomon, and Vaughn), assault on a police officer (Alvin), damaging private property (Alvin), resisting arrest (Vaughn and Solomon), disobeying a lawful order (Alvin), and possession of marijuana (Solomon). Seven months later the city dropped all charges and plaintiffs filed this suit.

Meanwhile the T.G. & Y. managers checked with the cashier from whom Vaughn bought the hairspray. Although there is a conflict, the evidence overwhelmingly suggests that the cashier believed Vaughn had paid her for the sunglasses and reported this to the T.G. & Y. managers shortly after the incident.

II

The jury found all defendants liable for a violation of the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983. The provisions of Sec. 1983 only apply to persons who both deprive others of a right secured by the Constitution or laws of the United States and act under color of a state statute, ordinance, regulation, custom, or usage. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). Defendants contend on appeal that one or both of these elements is missing with respect to the Lusbys' claims. The Sec. 1983 liability of the various defendants rests on separate theories, so we consider each separately.

A

Charles Gent contends that he was not acting under color of state law while employed at the T.G. & Y. store. Alternatively, he contends that if he was so acting he is not liable because he is entitled to a qualified immunity generally accorded to law enforcement officials.

At the time Gent allegedly committed the civil rights violations, he was an off-duty Lawton police officer employed as a part-time security guard at T.G. & Y.'s store in Lawton. Gent was not wearing a police uniform, although he apparently had his police badge with him as well as a Derringer pistol--not a police issue weapon--borrowed from a fellow officer.

We must consider the circumstances under which an off-duty police officer working as a security guard acts under color of state law for purposes of a civil rights claim. ¹ In Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964), the Supreme Court found state action when an amusement park security guard who had been deputized as a sheriff of the county, wore a badge, and identified himself as a deputy sheriff, arrested black park patrons who refused to leave the park in response to his order. The Supreme Court there declared, "If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity or that the particular action which he took was not authorized by state law." Id. at 135, 84 S.Ct. at 1773.

The Supreme Court may now apply a somewhat more restrictive test. In discussing the interrelationship of the "state action" requirement of the Fourteenth Amendment and the "color of state law" requirement of 42 U.S.C. Sec. 1983 in another context, the Court described a two-part test for determining whether conduct allegedly depriving a plaintiff of a federal right is fairly attributable to the state: (1) "the deprivation must be caused by the exercise of some right or privilege...