Washington v. Whitaker

• Citation: 451 S.E.2d 894,317 S.C. 108
• Decision Date: 16 February 1994
• Docket Number: No. 24174,24174
• Parties: Collette WASHINGTON, Annette White, and Josephine Washington, Respondents, v. Gregory WHITAKER and The City of Charleston, Appellants. . Heard
• Court: United States State Supreme Court of South Carolina

Page 894

451 S.E.2d 894

317 S.C. 108

Collette WASHINGTON, Annette White, and Josephine Washington, Respondents, v. Gregory WHITAKER and The City of Charleston, Appellants.

No. 24174.

Supreme Court of South Carolina.

Heard Feb. 16, 1994.

Decided Dec. 19, 1994.

Rehearing Denied Jan. 18, 1995.

[317 S.C. 110] Jimmy Stuckey, of Stuckey and Kobrovsky, Charleston, for appellants.

J. Kevin Holmes, of Steinberg Law Firm and Jay T. Gouldon of Stoney and Gouldon, Charleston, for respondents.

Vinton D. Lide of Lide, Montgomery and Potts, Columbia, for amicus curiae, South Carolina Law Enforcement Officers Ass'n.

CHANDLER, Acting Chief Justice:

Gregory Whitaker (Officer Whitaker) and The City of Charleston (City) appeal a jury verdict awarded to Respondents for violations of their Fourth Amendment rights.

We affirm.

FACTS

Respondent Josephine Washington lives at 37H Flood Street with her daughters, Collette and Lakeisha, and Collette's children.

At approximately 11:00 p.m., on February 16, 1989, a team of City police officers, led by Officer Whitaker, and including seven undercover officers and one uniformed officer, conducted a "drug raid" at 37H Flood Street. The raid was made pursuant to a warrant authorizing a search of the premises and of any person therein for illegal drugs. Officer Whitaker obtained the warrant based upon his affidavit that he observed a confidential informant enter apartment 37H on two occasions and purchase cocaine. The confidential informant told Officer Whitaker that he had purchased the drugs from a black male named "Dean".

On the night in question, undercover officers knocked on the door of 37H and asked for Dean. From an upstairs window, Collette Washington, who was five months pregnant, informed them that Dean lived next door. ¹ She also threatened to call the police. Josephine Washington answered the front door and the officers entered the apartment. They gathered into the living room the occupants of the apartment, including Josephine, Collette, Collette's friend Reginald Harley, Lakeisha, who was twelve years old, Annette, and Annette's nine year old daughter Jacquetta. Collette and Annette both had infant children who were left sleeping upstairs.

After the police searched the apartment, no illegal drugs nor any evidence of drugs were found. ² Notwithstanding, Respondents were taken individually to the bathroom by a female officer for a strip search. They were forced to disrobe and perform various movements, including bending over and lifting their buttocks. It was alleged that twelve year old Lakeisha was also strip searched and that the officers attempted to strip search Jacquetta but, due to her mother's protestations, she was given a pat-down search. ³ For reasons not appearing in the record, Harley, the only male present, was not subjected to a strip search. No narcotics were discovered.

Respondents ⁴ then instituted this action against City and Officer Whitaker, alleging Fourth Amendment violations under the Tort Claims Act ⁵ and 42 U.S.C. § 1983. The jury returned verdicts for Respondents as follows:

Josephine Washington: actual damages of $1500

punitive damages of $75,000 against City

and $5,000 against Officer Whitaker;

Collette Washington: actual damages of $1000

punitive damages of $75,000 against City

and $5,000 against Officer Whitaker;

Annette White: actual damages of $1000

punitive damages of $75,000 against City

and $5,000 against Officer Whitaker.

The City and Officer Whitaker appeal.

ISSUES

1. Was City entitled to a directed verdict?

2. Should the punitive damages awards have been stricken or set aside?

3. Was Officer Whitaker entitled to the defense of qualified immunity?

4. Was Officer Whitaker entitled to a directed verdict?

5. Should Juror Nesbit have been disqualified?

6. Was evidence concerning drug activity in Respondents' neighborhood admissible?

7. Were Appellants entitled to a mistrial?

8. Was Magistrate Koontz improperly questioned?

9. Was Appellants' Request to Charge that a "search conducted with a valid search warrant is presumed to be both valid and reasonable" improperly refused?

DISCUSSION

A. Directed Verdict for City

City argues that it was entitled to a directed verdict on the 42 U.S.C.A. § 1983 action. We disagree.

42 U.S.C.A. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The U.S. Supreme Court has held that local governing bodies, such as City, are liable under § 1983 for constitutional violations arising from the government's implementation of policy or custom. Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The plaintiff must show that such policy or custom amounted to a "deliberate indifference" to their constitutional rights. Pembaur v. Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Todd v. Smith, 305 S.C. 227, 407 S.E.2d 644 (1991). The failure to adequately train is actionable under § 1983. City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

Here, Respondents submitted evidence that, where individuals were suspected of concealing narcotics, City condoned the practice of strip searching, notwithstanding its police officers received no training as to how and when to conduct the searches. Moreover, no specific policy concerning strip searches was established.

It was the jury's province to determine from this evidence whether the City's failure to train or establish policy on strip searching constituted "conscious indifference" to Respondents' Fourth Amendment rights. Accordingly, the motion for directed verdict was properly denied. Waites v. S.C. Windstorm and Hail Under. Assoc., 279 S.C. 362, 307 S.E.2d 223 (1983) (this Court is not concerned

with the weight of the evidence,[317 S.C. 114] but whether there is any evidence from which the jury is warranted in making a finding).

B. Punitive Damages

City contends that: (1) the request for punitive damages should have been stricken from the complaint pursuant to City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); ⁶ and (2) the punitive damage awards should have been set aside since they were unduly excessive and against the weight of the evidence. We disagree.

First, City waived any objection to the propriety of punitive damages against a municipality. At trial, City motioned to strike punitive for the § 1983 action on the grounds of insufficient evidence. This motion was denied and City itself submitted a proposed punitive damage charge. The City of Newport, supra, was not cited or argued until City made motion for JNOV.

Unlike the federal courts, this Court does not recognize a "plain error" rule. Rather, it is well settled that a contemporaneous objection must be made to preserve an argument for appellate review. Taylor v. Bridgebuilders, Inc., 275 S.C. 236, 269 S.E.2d 337 (1980) (where no objection made to as to applicability of statute until motion for JNOV, issue not preserved). Here, City failed to raise a contemporaneous objection to the punitive damages pursuant to City of Newport and, therefore, cannot do so upon appeal. Talley v. S.C. Higher Educ. Tuition Grants Committee, 289 S.C. 483, 347 S.E.2d 99 (1986) (challenge to constitutionality of Act was procedurally barred).

In so holding, we overrule the antiquated rule that sovereign immunity is a jurisdictional bar and, accordingly, cannot be waived. See Lowry v. Commissioners of Sinking Fund, 25 S.C. 416, 1 S.E. 141 (1886); Hammarskold v. Bull, 9 Rich. 474 (1856); Reed v. Medlin, 284 S.C. 585, 328 S.E.2d 115 (Ct.App.1985). We join those jurisdictions which hold that sovereign immunity is an affirmative defense that must be pled. ⁷ This accords with modern precedent of this Court, holding that subject matter jurisdiction is met if the case is brought in the court which has the authority and power to determine the type of action at issue. See Dove v. Gold Kist, Inc., --- S.C. ----, 442 S.E.2d 598 (1994).

Second, the punitive damage award against City was not unduly excessive or against the weight of the evidence. The trial judge conducted a post-trial review pursuant to Gamble v. Stevenson ⁸ and determined that the award was appropriate given the facts of the case. We affirm his findings as to punitive damages. ⁹

C. Officer Whitaker--Qualified Immunity

Officer Whitaker contends he was entitled to the defense of qualified immunity. We disagree.

"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982). See The Fourth Amendment of the United States Constitution guarantees that citizens be free from unreasonable searches and seizures. "The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber v. State of California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966).

                also Cone v. Nettles, 308 S.C. 109, 417 S.E.2d 523 (1992).   Thus, the crux of this issue is whether Officer Whitaker violated Respondents' "clearly established" Fourth Amendment rights, "the contours of which [were] sufficiently clear in light of pre-existing law that a reasonable public official would know that his actions violate the right."  Timberlake by Timberlake v.

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