Barton Protective Services, Inc. v. Faber

• Decision Date: 21 July 1999
• Docket Number: No. 97-3949.,97-3949.
• Citation: 745 So.2d 968
• Parties: BARTON PROTECTIVE SERVICES, INC., Appellant, v. John F. FABER and Eddie C. Worlds, III, City of Pompano Beach, Alex Nunes, Jose Interian and California Retired Public Servants Association, Appellees.
• Court: Florida District Court of Appeals

745 So.2d 968

BARTON PROTECTIVE SERVICES, INC., Appellant, v. John F. FABER and Eddie C. Worlds, III, City of Pompano Beach, Alex Nunes, Jose Interian and California Retired Public Servants Association, Appellees.

No. 97-3949.

District Court of Appeal of Florida, Fourth District.

July 21, 1999.

Rosemary B. Wilder and Richard A. Sherman of Richard A. Sherman, P.A., Fort Lauderdale and J. Frank Beauchamp, III, of Carman, Beauchamp & Sang, P.A., Deerfield Beach, for appellant.

J. David Huskey, Jr. and C. Edward McGee, Jr. of McGee, Gainey & Huskey, P.A., Fort Lauderdale, for Appellees John F. Faber and Eddie C. Worlds.

Robert H. Schwartz and Jonathan M. Matzner of Adorno & Zeder, P.A., Fort Lauderdale, for Appellees City of Pompano Beach, Alex Nunes and Jose Interian.

TAYLOR, J.

In this appeal following a jury verdict for plaintiffs in a civil rights action under 42 U.S.C. § 1983, the jury found a shopping mall security company liable for false arrest. Barton Protective Services, Inc. (Barton) contends that the trial court erred in denying its motion for a directed verdict, judgment notwithstanding the verdict, and new trial, because the evidence was insufficient to show that Barton acted under "color of law" within the meaning of § 1983. Barton also appeals, along with plaintiffs on cross-appeal, the trial court's apportionment of fault among the defendants for damages, attorneys' fees, and costs.

Plaintiffs John Faber and Eddie Worlds worked together as car salesmen at a dealership in Lighthouse Point, Florida. On December 20, 1990, they left work to go Christmas shopping at the Pompano Square Mall. After making some purchases for their families, they bought a set of golf club covers and a golf glove for their sales manager. While standing in line at a gift wrap station in the mall, the men discovered that they had mistakenly bought a right-hand glove instead of a left-hand glove for their manager and decided to exchange it. Worlds, who is black, agreed to return to the Champs store to exchange it while Faber held their place in the gift wrap line. As Worlds was rushing through the mall, he was approached by Don Declare, the chief of security for Barton, a private security company hired by the mall's owner. Declare shouted at Worlds and asked him why he was running in the mall. Worlds replied that he was exchanging a gift and that he was hurrying to get back to work. Worlds returned to the store, exchanged the gift, and left the store to join Faber. On his return trip to the gift wrap station, Worlds passed Declare, who again asked Worlds why he was running. Worlds answered him as before. Declare continued to watch Worlds and summoned two uniformed security guards to assist him. When Worlds joined Faber in the gift wrap line, Declare and the two uniformed security guards approached him. For the third time, Declare questioned Worlds about running in the mall. Worlds again explained they were in a hurry because they were on a work break and apologized for any misunderstanding.¹ Declare asked Worlds his name, but, in spite of Worlds' response, he continued to ask his name several times, refusing to believe him. Finally, after telling Declare his true name four times, Worlds gave him a fictitious name, which Declare accepted. To avoid any further problems, Faber volunteered to forego getting their gifts wrapped and just gather their purchases and leave the mall. Declare left the area, but directed his two security guards, Joe Papesca and Lamar Hill, to follow Worlds and Faber as they exited the mall.

In the meantime, Declare contacted a third security guard, Guido D'Angelo, and instructed him to summon two uniformed Pompano Beach Police officers to a "disturbance" outside the Sears store. Declare then stationed himself near the Sears mall entrance to intercept Worlds and Faber as they left the mall. When the two men arrived at Sears, Declare approached them, pushed Worlds in his chest, and told them they had to be detained. At that moment, Pompano Beach Police Officers Alex Nunes and Jose Interian approached, accompanied by D'Angelo. Shouting profanities and slurs at the men, the police officers ordered plaintiffs to remain in the mall. They informed Worlds that he was going to be arrested. Faber, whose conduct was described as being similar to that of a "blind child with no tongue," asked why his co-worker was being arrested and protested their treatment as unnecessary. In response, Nunes told Faber to "shut the f___ up" and poked him in his chest. Faber was then pushed back toward the glass of a storefront. When he asked why he was being hit, Officer Nunes grabbed Faber by the neck, spun him around, and threw him head-first into a Santa Claus display located outside the Sears store. Then Declare and the two officers jumped on top of Faber while he was still lying face down in the display on the floor. Faber was handcuffed and placed under arrest. Interian detained Worlds and told him he was going to jail also. Worlds calmly offered his hands in submission. With their Christmas packages strewn about them on the floor, Faber and Worlds were led out of the mall in handcuffs and transported to the Pompano Beach Police station.

Worlds was charged with disorderly conduct, a misdemeanor. He was able to post bond and get released directly from the police station in less than an hour. Faber, on the other hand, was charged with disorderly conduct and resisting arrest with violence, a third degree felony. He was transported from the station to the main jail adjacent to the Broward County courthouse, where he was booked, fingerprinted, photographed, strip-searched, and placed into the general inmate population before he was released on bond several hours later. All criminal charges against the plaintiffs were eventually dismissed.

Worlds and Faber sued the City of Pompano Beach (City) and Officers Nunes and Interian for malicious prosecution and false arrest. They also sued the City, the officers, and Barton for a civil rights violation of 42 U.S.C. § 1983. At the close of the plaintiffs' evidence, Barton moved for a directed verdict on the § 1983 claim, asserting that the plaintiffs failed to establish that Barton, a private entity, acted under color of state law during the detention and arrest of plaintiffs. The trial court denied the motion for directed verdict. The jury determined that both officers used excessive force and lacked probable cause in arresting Faber and were liable to him for malicious prosecution. The jury also found that Barton acted as a willful participant in a joint activity with the officers in effectuating Faber's false arrest. They awarded Faber $225,000 in compensatory damages and apportioned fault among the defendants. As to Worlds, the jury found that both officers used excessive force in falsely arresting him and that Barton was a willful participant in World's arrest. Worlds was awarded $100,000 in damages.

Based on our review of the record, we conclude that the trial court did not err in denying Barton's motion for directed verdict or judgment notwithstanding the verdict. A motion for directed verdict should be granted only when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ as to the existence of a material fact and that the movant is entitled to a judgment as a matter of law. Briscoe Enters. Ltd. of Fla. III. v. Palm Beach County, 623 So.2d 560 (Fla. 4th DCA 1993). If there is any evidence to support a possible verdict for the nonmoving party, a directed verdict is improper. Gold, Vann & White, P.A. v. DeBerry, 639 So.2d 47 (Fla. 4th DCA 1994). Stated another way, "a trial court may direct a verdict against a plaintiff only if no evidence is introduced on which the jury may lawfully find for the plaintiff." Id. at 51, (quoting Amoroso v. Samuel Friedland Family Enters., 604 So.2d 827, 831 (Fla. 4th DCA 1992)).

In order to recover on a § 1983 claim, a plaintiff must prove two elements: (1) that he was deprived of a right "secured by the Constitution and laws" of the United States; and (2) that the person depriving the plaintiff of that right acted "under color of state law." 42 U.S.C. § 1983. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Flagg Bros. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Scott v. Dixon, 720 F.2d 1542, 1545 (11th Cir.1983), cert. denied, 469 U.S. 832, 105 S.Ct. 122, 83 L.Ed.2d 64 (1984). The right to be free from unlawful arrest and imprisonment is such a protected right under the Fourth and Fourteenth Amendments, a violation of which may form the basis for a § 1983 claim. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Duriso v. K-Mart No. 4195, Div. of S.S. Kresge Co., 559 F.2d 1274 (5th Cir.1977). Under the Fourth Amendment, a person has the right not to be arrested unless probable cause justifies the arrest. See Baker v. McCollan, 443 U.S. 137, 143, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Wilson v. Attaway, 757 F.2d 1227, 1235 (11th Cir.1985). In this case, it was determined that plaintiffs were arrested without probable cause.

Regarding the "under color of state law" element, a plaintiff is entitled to relief against a private citizen if he can prove that the private citizen was "a willful participant in joint activity with the state or its agents." Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). To establish joint action, a plaintiff must show that the private party and the state official shared a common unlawful goal and agreed on a joint course of action in furtherance of that goal. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).² Private persons can be held liable in a 42 U.S.C. § 1983 action if they act in concert with state officials in depriving the plaintiff of his constitutional rights. See Bendiburg v. Dempsey, 909 F.2d 463,...