City of Jackson v. Powell

• Decision Date: 10 November 2005
• Docket Number: No. 2003-CA-01013-SCT.,2003-CA-01013-SCT.
• Citation: 917 So.2d 59
• Parties: CITY OF JACKSON v. Frederick POWELL.
• Court: Mississippi Supreme Court

Page 59

917 So.2d 59

CITY OF JACKSON v. Frederick POWELL.

No. 2003-CA-01013-SCT.

Supreme Court of Mississippi.

November 10, 2005.

COPYRIGHT MATERIAL OMITTED

Barbara A. Bluntson, Jackson, attorney for appellant.

Chokwe Lumumba, Ali Muhammad Shamsiddeen, Jackson, attorneys for appellee.

Before COBB, P.J., CARLSON and RANDOLPH, JJ.

COBB, Presiding Justice, for the Court.

¶ 1. The City of Jackson appeals a judgment in favor of Frederick Powell, entered in the Hinds County Circuit Court. Powell claimed that certain Jackson Police Department officers committed on him acts of assault and battery, intentional infliction of emotional distress, and negligence. The case was tried without a jury, before Circuit Judge Winston L. Kidd, who found that: (1) the officers used excessive force; (2) Powell was not engaged in criminal activity at the time of the injury to him and (3) the officers' actions were intentional and malicious. Judge Kidd also found that the city was deliberately indifferent to citizens' complaints, was negligent in the supervision of its officers, and approved the use of excessive force.

¶ 2. Two separate orders were entered by the trial court on February 4, 2003. In one, Judge Kidd found that Powell had proved his claim against all defendants and was entitled to $100,000 in compensatory damages from the City of Jackson and the two officers, jointly and severally. He further found that the two officers were jointly and severally liable to Powell for an additional $50,000 in punitive damages. Judge Kidd also further found that, pursuant to Miss.Code Ann. § 11-46-7(3) the city was responsible for all damage awards against the two officers. Thus, judgment was entered against the city for $150,000. In the second order, Judge Kidd cited 42 U.S.C. § 1988(a), (b) and (c), and granted Powell $31,350 in attorney's fees and $3,300 in litigation costs, and again ordered that the City of Jackson was responsible for all costs, attorney's fees and money damages in the suit as a result of the action of the officers.

¶ 3. After the judgment was entered, the City of Jackson filed a Motion for Judgment Notwithstanding the Verdict and/or an Alternative Motion for New Trial, which the trial court denied. The city now appeals from the trial court's decision, asserting that the trial court erred by failing to find that Powell was engaged in criminal activity at the time of the injury and by finding that the officers used excessive force against Powell. The city also asserted that if the trial court was correct in determining that the officers acted with malice, then the city was not liable for their actions. The city's final assertion of error was that the judgment of the lower court was against the overwhelming weight of the evidence. We reverse and render.

FACTS

¶ 4. Between the hours of 11:00 P.M. and 12:00 A.M. on March 16, 1995, Officers Donald McCluskey and Gil Baker noticed a car driven by Frederick Powell going the wrong way on a one-way street.¹ The testimony reveals two totally different versions of what happened thereafter. Powell initially attempted to drive away from the officers, claiming that he had only seen their headlights where they were parked, heading the wrong way, on the street he was entering. He testified that he did not know the identity of his pursuers until the officers activated their blue lights. Officer McCluskey, however, testified that the officers turned their blue lights on when they saw Powell turn the wrong way onto another one way street, well before they pulled him over.

¶ 5. After coming to the end of a dead-end street, Powell stopped his vehicle, and the officers approached the vehicle and requested Powell's driver's license, which he did not have. Powell testified that at this point, Officer Baker said "get out the car, N_____." Officer Baker placed Powell in the patrol vehicle without handcuffing him, while the officers ran the usual background check, which revealed that Powell's driver's license was suspended and that there was an outstanding warrant for his arrest on a simple assault charge. As a result, the officers informed Powell that he was under arrest. Officer McCluskey testified that he conducted an inventory search of Powell's vehicle incident to arrest and found ten small plastic bags of marijuana under the driver's seat. Powell denies that he possessed marijuana and asserts that McCluskey planted the marijuana in the vehicle. Powell testified that "when they come [sic] up with the bag of marijuana that I didn't know I had no knowledge of, that's when I got frightened and scared." Powell further testified that he "just got frantic and started thinking about the Raymond jail facility where some people in the neighborhood were saying that they was [sic] beating young fellows up." He went on to explain that "people in the neighborhood was [sic] telling me about in Raymond that security guards down there was [sic] jumping on inmates and spraying mace in their face and beating them up for nothing, putting them in strap chairs. So by them telling me that and thinking that that's where I'm fixing to go, that's what really made me scared and made me escape the patrol car." Powell tried to escape by letting the electric window down and jumping out but he was not successful because his foot got caught in the window.

¶ 6. When McCluskey heard the window going down, he immediately yelled for Baker to assist him in stopping Powell. Officer McCluskey intercepted Powell as he was trying to remove his caught foot from the vehicle. Powell testified that McCluskey pushed him out of the window and started punching him in the back of the head, hitting him with a billy club, kicking him in the face, placing him in a choke hold, and calling him names. He further testified that Baker joined the fray, holding Powell's legs real tight to the ground. According to Powell, he was not armed and did not attempt to strike the officers.

¶ 7. The officers's testimony is decidedly different. Officer McCluskey, called as an adverse witness by Powell, testified that:

I initially was going to just try and hold him [Powell] there against the vehicle. I told him to stop. I told him to get back in the vehicle. He ignored all that and continued trying to force his way out of the vehicle . . . Mr. Powell was very aggressive in trying to escape.

McCluskey then attempted to force Powell to the ground in order to get Powell's hands behind his back to apply handcuffs. To accomplish this task, the officer used a progression of techniques that increased in physical force due to Powell's resistance and attempts to break away. These techniques eventually included McCluskey striking Powell twice in the face with punches, kneeing Powell in the face twice, placing Powell in a headlock, and Baker striking Powell with his foot several times in the arm. Both officers stated that they were not carrying night sticks or clubs and that they never kicked Powell in the face. Regarding Powell's actions and demeanor, McCluskey testified that during Powell's escape attempt and resistance, Powell physically assaulted him with his fists and came toward him in a threatening manner.

¶ 8. During the incident, Baker called for backup, and Officer Brian Pippen (who is African-American) arrived on the scene, after Powell was already on the ground. Pippen then handcuffed Powell. Pippen testified that Powell offered no resistance or struggle to being handcuffed. On the other hand, Powell testified that after handcuffing him, Pippen "stepped back about three steps" and kept watching while McCluskey and Baker continued to beat him. Powell further testified that he repeatedly "begged for help" from Pippen, saying "brother, are you going to let them do me like this?" McCluskey and Baker denied beating or striking Powell after Pippen handcuffed him and Pippen testified that he never saw McCluskey and Baker use physical force on Powell during the time he was at the scene.

¶ 9. Eventually, McCluskey and Baker placed Powell in the patrol car and took him to the precinct station. During this time, Powell claims that the officers continued to verbally threaten him and said they were going to shoot him. Powell also testified that when they arrived at the precinct station, the officers continued to harass him and that McCluskey "rammed my head into the brick wall . . . and punched me in the face."

¶ 10. After Powell had been at the station for approximately 45 minutes, the officers took him to the hospital, where, Powell claims, he received a shot for pain and a shoulder x-ray. Powell's explanation for having said nothing to the doctors about the cause of his injuries, was that the officers threatened to continue beating him if he did.

¶ 11. Six witnesses were called by Powell to testify regarding the altercation between Powell and the officers. The first was Rosalind Hayes who had known Powell about a year at the time of the altercation, and that at the time she was 15 or 16 years of age. She stated that they were not close friends; that she sometimes saw him around the neighborhood. She testified that from the window of her house, which was located about "two houses down" from the altercation, she saw the officers pull Powell over. She told her sister and they "went outside onto the car porch, and stood out there." She testified that she saw Powell climb out of the patrol car window, get his foot caught, and fall to the ground hands first as the officers pulled him from the vehicle. Rosalind Hayes also stated that she saw Powell being beaten and kicked while on the ground and in handcuffs. Further, she did not see Powell offer any resistance to the officers.

¶ 12. The second witness was Cheryl Hayes, Rosalind's older sister, who had known Powell for about a year at the time of the altercation, but claimed that she was not close friends with him. Cheryl testified that she saw Powell climb out of the patrol car window and fall to...