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Court of Appeal, Second District, Division 2, California.

Oswald DAWKINS, M.D., Plaintiff and Respondent, v. CITY OF LOS ANGELES et al., Defendants and Appellants.

Civ. 49388.

Decided: March 03, 1977

Burt Pines, City Atty., John T. Neville, and Thomas C. Hokinson, Asst. City Attys., for defendants and appellants. Godfrey Isaac and Lawrence Jay Kraines, Beverly Hills, for plaintiff and respondent.

Defendants appeal a judgment entered on a jury verdict against City of Los Angeles and police officers Akesson and Ellington for $100,000 compensatory damages for assault and battery, false arrest, and false imprisonment, and against the police-officer defendants for $5 punitive damages.

Defendants contend: compensatory damages are excessive as a matter of law, being the result of passion and prejudice and bearing no reasonable relationship to actual damages suffered; the trial court erred in refusing to instruct the jury as matter of law that the police had the right to detain and arrest plaintiff under the circumstances of this case; the evidence showed use of no more than reasonable force to effect plaintiff's arrest.

Events preliminary to plaintiff's arrest by police officers are largely uncontroverted. Plaintiff was a 44-year-old black, male physician, employed as an anesthesiologist at Cedars of Lebanon Hospital, and a former member of the U.S. International Track Team. He frequently worked out at night on the unlit Los Angeles City College (LACC) athletic field, a track facility located a few blocks from Cedars. On 17 April 1973, shortly before 10:00 p.m., several persons observed a brutal assault upon a young woman in the vicinity of the LACC field. According to these witnesses a black man of sturdy build was beating a young white girl. He dragged her by the hair along the sidewalk and then down the stairs leading to the LACC track field while she shrieked, moaned, and struggled. One such witness, Boom Boom Buttram, on hearing the uproar looked out his second-story apartment window, saw the girl being dragged, and telephoned police. Meanwhile, plaintiff was exercising on the LACC track dressed in his track warmup suit of blue running pants, blue matching shirt zipped to neck, dark windbreaker jacket, yellow night cap, and spiked running shoes. Plaintiff heard the commotion and saw the girl being beaten and dragged down the stairs. He stopped exercising and walked toward the assailant, who then released his victim and walked away. In passing the assailant plaintiff said ‘Hey brother,’ but the other said nothing and continued on his way. The victim, dragging herself up the stairs, fell down, and plaintiff decided to offer medical assistance. As he was walking to the stairs without hurrying, the victim arose, got up the stairs, and staggered down the street toward Vermont Avenue. Plaintiff in his spiked shoes followed her up the stairs and down the street to within thirty yards of the intersection, attempting to attract her attention by clapping his hands and hissing—practices he testified were customary in his native Jamaica—but the victim hastened away before plaintiff could reach her. Plaintiff then returned to the track and resumed his workout.

Within a few minutes two uniformed police officers, defendants Akesson and Ellington, arrived on the scene in response to Buttram's call for help. Buttram briefed the officers on the assault he had witnessed. He specifically described the assailant as a sturdy or muscular black male, about 5′ 10″ tall, wearing dark pants, a dark woolen pullover sweater, probably a turtleneck, light sneakers or track shoes, and a dark woolen stocking roll-up-type hat. He also said, as did another bystander, he had seen the assailant drag the girl down into the field, emerge briefly, and then go back down the stairs into the field. He told the police the assailant was still down there. The field was dark and not plainly visible from the street, but there was some light on the landing steps leading to the field. Officer Akesson went down the stairs while his partner, Officer Ellington, remained briefly at the police car to communicate with headquarters. At this point the witnesses' stories about what then happened on the field diverge.

Plaintiff testified: He was exercising in the dark and the only person on the field when he saw a police officer coming down the stairs. He jogged over to meet Officer Akesson on the track and spoke first, saying ‘Hello, officer.’ Akesson replied, ‘You have been pointed out.’ Plaintiff responded, ‘What for?’ Akesson then said, ‘Come with me’ and reached for plaintiff's left elbow. As he did so plaintiff repeated his question, ‘What for.’ and the officer repeated ‘Come with me,’ whereupon plaintiff asked ‘What are the charges?’ Akesson then reached for plaintiff's arm and brandished his baton. About two minutes had elapsed. At that moment Officer Ellington ran up and immediately applied a bar-hold to plaintiff's head and neck. Before seizing plaintiff Ellington said nothing. Plaintiff denied raising his arms but he did try to pull Ellington's arm away from his neck in order to breathe. He was thrown to the ground; someone stood or kneeled on him and hit him with a blunt object in the area of his left head and shoulder. He heard Ellington say, ‘You black son-of-a-bitch. This will teach you to attack white girls.’ Plaintiff was handcuffed, taken up the stairs to the street, frisked, and put in the back of a police car. Ellington told him the charge was attempted rape, and twice more called him a black son-of-a-bitch. Plaintiff told the officers he was a doctor who worked at Cedars and asked to be taken there for identification and treatment. Instead, the police took him to Rampart police station. He was placed in a holding cell, identified, and permitted to make a telephone call. After being at Rampart about an hour, he was taken to the central jail, where he was photographed and booked for resisting arrest. Plaintiff remained in custody at central jail about three hours and was then released on bail. Plaintiff testified an officer at Rampart station stomped on his instep in pulling off his spiked shoes, but he made no other claim of physical mistreatment while in custody.

Defendant Akesson testified: while on patrol he and his partner Ellington received a radio call to go to LACC track field as rapidly as possible to investigate a woman screaming or being attacked. On their arrival they found several people waiting on the sidewalk, among them Buttram, who said he had seen the assailant come up the stairs to the sidewalk, and then go back to the field, where he then was. Buttram twice identified as the assailant the man dressed in running clothes and exercising on the field about 75 to 100 feet away. Akesson went down the steps to detain or arrest the man in question. He had a vague recollection of another man running on the track. Akesson, without a weapon in his hand, walked toward plaintiff, who stopped exercising and watched him coming. The officer told plaintiff he was investigating an assault that had occurred minutes earlier, that plaintiff had been ‘pointed out and described by witnesses up on the street.’ Plaintiff replied he hadn't heard or seen an assault, he knew nothing about it, he was a doctor, and he had been running all evening. Akesson said he was conducting an assault investigation and wanted plaintiff to accompany him to the street to talk to witnesses. After the officer explained the matter twice, plaintiff said he didn't have to go with the officer and wouldn't go. Akesson then told plaintiff he was under arrest for assault and would have to accompany him to the street, and reached for plaintiff's elbow. Plaintiff jerked away. Akesson pulled out his baton. Just then Ellington arrived and told plaintiff he was under arrest. The two officers attempted to seize plaintiff's arms, plaintiff lunged forward, and Ellington then went behind plaintiff and applied a bar-arm hold, one used to apply pressure to the throat and throw a resisting person to the ground to subdue him. Plaintiff, struggling, kicking, and flailing about, slipped out of the hold as he fell to the ground. Eventually, both officers had to set or kneel on him, and Ellington struck him with a weighted sap to subdue him sufficiently to handcuff his hands behind his back. Plaintiff was put on his feet and walked up the stairs to the street. Akesson talked to witnesses Buttram and Kwon on the sidewalk and then put plaintiff in the back of the police car. Other police officers checked the Vermont area to locate the victim, but they never succeeded in finding her. At the jail plaintiff was booked for resisting arrest.

Defendant Ellington testified: on arrival at LACC track field he talked to Moses and Buttram, who both told him the assailant was on the athletic field. Buttram said the suspect was a Negro wearing dark athletic clothes. After checking with headquarters, Ellington followed his partner onto the field. He heard plaintiff protesting in a loud voice he was a doctor, he had done nothing wrong, and he wouldn't go with Akesson. Both officers told plaintiff he was under arrest. The two reached for plaintiff's arms, and when the latter raised his fists, Ellington went to plaintiff's rear and applied bar-arm control. Plaintiff broke free on the ground, a struggle ensued with kicking and arm swinging, and Ellington struck plaintiff on the shoulder with his sap. Thereafter, Akesson was able to handcuff plaintiff. The two officers took plaintiff up the steps, talked to Buttram and Kwon, put plaintiff in the patrol car, and later took him to Rampart police station. At no time did he call plaintiff a black son-of-a-bitch.

Buttram testified: he lived across the street from LACC track field. On 17 April 1973, he heard a woman screaming, and from his window he saw a black man in dark clothing with a dark stocking cap dragging a woman by the hair along the street. He telephoned police. He then saw the victim, who was white, being dragged down the stairway to the athletic field. Buttram went down to the street and spoke to his friend Kwon. The street lighting was excellent. The victim then came up the steps to the sidewalk and staggered toward Vermont. Plaintiff was following her up the steps about 20 to 30 feet behind her. He appeared to be the same individual Buttram had seen earlier dragging the woman along the street. Plaintiff stood looking at the woman, and when she disappeared at the street intersection he turned and went down the steps to the field. Buttram and Kwon waited there for 10 to 12 minutes until the police came. He told the police the suspect was down on the field. Plaintiff appeared to be dressed the same way as the man who had been dragging the woman.

Morris Moses, a runner and friend of plaintiff's drove to LACC athletic field on the night of 17 April 1973. While parking his van he heard screams and saw a black man on the street dragging a screaming woman begging for help. The man dragged the woman down the stairs leading to the athletic field. Plaintiff was not her assailant. In a few minutes the assailant went down into the athletic field, and the woman came up the stairs and walked past his van to Vermont. She refused Moses' offer of help. Moses decided to leave, drove two blocks, and then returned. When the police arrived, Moses told them the man who committed the assault was down on the track. The officers went onto the track, and he saw a man knocked to the ground. When the police brought the man up the stairs, Moses saw it was plaintiff, and he told police he thought they had the wrong man. A bystander told the police, ‘I had my eyes on him all the time.’ One of the policemen referred to plaintiff as a black son-of-a-bitch.

Recital of this testimony strongly suggests an instance of mistaken identity that came about as a result of plaintiff's earlier action in following the victim up the stairs and onto the street. Plaintiff was correctly identified as the man following the victim, but the incorrect conclusion was drawn that because he followed the victim, clapped his hands, and hissed at her, he had been her assailant.

The sequence of events was, (1) a call to the police to suppress an ongoing crime of assault; (2) arrival of the police; (3) eyewitness identification of the man on the track field—plaintiff—as the assailant; (4) detention and arrest of plaintiff as the suspected assailant; (5) discontinuance and abandonment of the assault investigation when the assault victim could not be found; (6) initiation of charges against plaintiff for resisting arrest and obstructing an officer in the discharge of his duty. The critical and disputed events are those that occurred in stage (4), the detention and arrest.


Defendants were entitled to have the jury instructed as a matter of law that the detention and arrest were proper.

First, the police have authority to detain and arrest a suspect identified as the perpetrator of a felony committed in the immediate presence of and reported by eyewitnesses. The possibility that identification may be incorrect, a possibility that exists in any instance of hue and cry, does not preclude effective action by the police to secure the body of the suspect in order to confirm or deny identification. (People v. Hill (1968) 69 Cal.2d 550, 555, 72 Cal.Rptr. 641, 446 P.2d 521.)

Second, on plaintiff's own testimony the police sufficiently identified their purpose and mission in accosting plaintiff. The officers were in uniform. A brutal assault had taken place in plaintiff's presence a few minutes earlier. Plaintiff had spoken to one participant in the assault and had followed the other onto the street. Defendant Akesson told plaintiff that he had been pointed out and said that he should come with him. Under these circumstances of field investigation conducted at night and in the dark and related to a contemporaneous crime committed in plaintiff's presence, the essentials and purpose of the restraint sought by the police were sufficiently indicated and communicated to plaintiff.

Third, plaintiff refused to immediately accompany the police officer to the light and to the area where witnesses were located. Whether his refusal was a temporizing refusal, as testified by plaintiff, or a flat refusal, as testified by the officers, it was a refusal that created an impasse. According to plaintiff, the officers immediately attempted to seize his person. According to the officers, they told plaintiff he was under arrest, and when he resisted arrest they were required to use force to secure his person.

To properly present these issues to the jury defendants proposed instructions 13 and 14, both of which the court refused. These instructions read:

No. 13: ‘You are instructed that Officer Eugene Akeson and Officer James Ellington had reasonable cause to arrest Oswald Dawkins on April 17, 1973, for assault likely to produce great bodily injury.’

No. 14: ‘You are instructed that Officer Ellington and Officer Akesson lawfully detained the plaintiff, Oswald Dawkins, M. D., on April 17, 1973.’

Since the uncontradicted facts established as a matter of law that the police had the right to detain and arrest plaintiff, the requested instructions were proper and should have been given. (People v. Gorg (1955) 45 Cal.2d 776, 780–781, 291 P.2d 469; People v. Tyler (1961) 193 Cal.App.2d 728, 735, 14 Cal.Rptr. 610; People v. Tewksbury (1976) 15 Cal.3d 953, 966, 127 Cal.Rptr. 135, 544 P.2d 1335.)

1. Detention was fully authorized, in that ‘[t]he reasons required to permit an officer to properly engage in questioning are necessarily much less than would be required to permit arrest and search.’ (People v. Mosco (1963) 214 Cal.App.2d 581, 584–585, 29 Cal.Rptr. 644, 646.) ‘Where there is a rational belief of criminal activity with which the suspect is connected, a dettention for reasonable investigative procedures infringes no constitutional restraint.’ (People v. Flores (1974) 12 Cal.3d 85, 91, 115 Cal.Rptr. 225, 228, 524 P.2d 353, 356.) The general grounds for reasonable detention are: (1) There must be a rational suspicion by the police officer that some activity out of the ordinary is taking place or has taken place; (2) some indication must exist to connect the person under suspicion with the unusual activity; and (3) there must be some suggestion that the activity is related to a crime. (Irwin v. Superior Court (1969) 1 Cal.3d 423, 427, 82 Cal.Rptr. 484, 462 P.2d 12; People v. Henze (1967) 253 Cal.App.2d 986, 988, 61 Cal.Rptr. 545.)

At bench, the above criteria were clearly met. There was no factual dispute that defendants Ellington and Akesson had been informed that a woman had been brutally assaulted in the vicinity of LACC track field on 17 April 1973, prior to their detention of plaintiff. There was no doubt the officers had a ‘rational suspicion’ that something out of the ordinary had taken place, for they were at the scene of a reported assault. There was no doubt of the suggestion that plaintiff was connected with the crime. The leading case is People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658, in which officers were looking for a robbery suspect. The only description they had was of a ‘fairly tall,’ male, Caucasian with a large build wearing a red sweater. The court held that detention of a suspect meeting the general description was reasonable, even though he was found some six blocks from the scene of the robbery. At bench the description of the suspect was far more complete than in Mickelson, the officers detained plaintiff at the scene of the assault, and eyewitnesses indicated both plaintiff's participation in the assault and his whereabouts.

In Lane v. Superior Court (1969) 271 Cal.App.2d 821, 76 Cal.Rptr. 895, the officer was justified in stopping a suspect for questioning merely on a tip from an unidentified informant that the suspect had marijuana or ‘bennies' on her person. To justify a temporary detention, the court said, the information relied upon need not come from a source of proved reliability, not need it be of the quality required to support probable cause to make an arrest. Here, the sources of information relied upon by defendants Ellington and Akesson were eyewitnesses to the assault, who presented themselves to the police when the latter arrived on the scene.

2. Plaintiff's arrest for assault on the girl was also warranted. Plaintiff was identified as the girl's assailant by eyewitnesses to the crime. Such identification, although later found to be mistaken, establishes reasonable cause to arrest the identified person for the crime he is reported to have committed. (People v. Hill (1968) 69 Cal.2d 550, 555, 72 Cal.Rptr. 641, 446 P.2d 521; People v. Ramey (1976) 16 Cal.3d 263, 269, 127 Cal.Rptr. 629, 545 P.2d 1333; People v. Hill (1974) 12 Cal.3d 731, 757–758, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Lara (1967) 67 Cal.2d 365, 374–375, 62 Cal.Rptr. 586, 432 P.2d 202; People v. Cohn (1973) 30 Cal.App.3d 738, 748–749, 106 Cal.Rptr. 579; People v. Tharp (1969) 272 Cal.App.2d 268, 271–272, 78 Cal.Rptr. 412; People v. Livingston (1967) 252 Cal.App.2d 630, 635, 60 Cal.Rptr. 728.) One direct witness to a crime is sufficient proof to sustain a conviction; a fortiorari, one presumptively-reliable eyewitness to a crime establishes reasonable cause for arrest. Both requested instruction were proper.

The arrest being lawful, the controverted issue became whether unnecessary force was used to effect plaintiff's arrest and thereby make defendants guilty of assault and battery, and, derivatively, whether plaintiff's confinement on the charge of resisting an officer was justified. These issues were, and are, jury questions. Had the requested instructions been given, the jury would have necessarily focused its attention on the critical issue whether excessive force was used in effecting plaintiff's detention and arrest. In the absence of such instructions we have no way of determining whether the jury's verdict was based on excessive use of force or whether it was based on a theory of improper detention or false arrest. Rejection of the proffered instructions constitutes prejudicial error which requires reversal of the verdicts against all defendants.


Damages were excessive and disproportionate to any compensable injuries suffered by plaintiff.

As a public entity, the City of Los Angeles is liable in tort for compensatory damages only. It is neither liable for damages for the sake of example nor for damages by way of punishment of a defendant. (Gov.Code, § 818.) In returning its general verdict the jury selected a figure that bore no relation to compensation of plaintiff for injuries suffered by him.

The only tangible damages attributable to the arrest involved medical services rendered gratis by another doctor, services whose value was estimated at $200 less $50 for the cost of the medical report issued to plaintiff's attorney for use in this litigation. Plaintiff proved no loss of earnings, no loss of earning capacity, no increased living expenses, and no out-of-pocket expenses as the result of his arrest. The sole possible basis for compensatory damages must be found in plaintiff's pain and suffering. But damages for pain and suffering must be rooted in evidence, either observation in the courtroom of plaintiff's condition or expert testimony about the nature and extent of his injuries. (Beagle v. Vasold (1966) 65 Cal.2d 166, 176, 53 Cal.Rptr. 129, 417 P.2d 673.) Plaintiff testified he suffered headaches and backaches, and that his ‘breathing and swallowing apparatus was markedly affected.’ Plaintiff conceded he suffered no broken bones and no disfigurement and that the only break in his skin as a result of his arrest was a small, half-inch cut on the inside of his lip that required no stitches. By his own testimony, plaintiff's pain was episodic for three to four weeks and completely disappeared within three to six months. The only expert testimony was that of Dr. Shore, who did not specify any injuries to plaintiff other than temporary soft-tissue injuries. An indirect laryngoscopy performed less than a week after the incident revealed no injury to plaintiff's larynx. Inferably, the reason why no expert testimony regarding permanent injuries and no expert testimony regarding Dr. Dawkins ‘psychological disturbances' was produced was because there had been no such injuries.

Undoubtedly, plaintiff experienced pain as a result of his altercation with the two officers. But the award of $100,000 for such pain is unsupported by evidence. An award grossly disproportionate to a sum reasonably warranted by the facts raises a presumption that it came about as a result of passion and prejudice. (Kircher v. Atchison, T & SF Ry. (1948) 32 Cal.2d 176, 187, 195 P.2d 427; cf. Gill v. Epstein (1965) 62 Cal.2d 611, 44 Cal.Rptr. 45, 401 P.2d 397; Cunningham v. Simpson (1969) 1 Cal.3d 301, 81 Cal.Rptr. 855, 461 P.2d 39.) Here, the award must be attributed either to the jury's passion and prejudice against defendants or to the suggestion of plaintiff's counsel to the jury that the verdict against the City should deliver a very important ‘message,’ which should be a ‘protest’ and a ‘statement,’ ‘to make sure that our officers don't do this type of thing.’ Clearly, the jury was invited to assess damages against the City by way of example. Equally clearly, exemplary damages that cannot be directly imposed against a city cannot be indirectly imposed under the guise of compensatory damages. (City of Salinas v. Souza (1967) 66 Cal.2d 217, 228, 57 Cal.Rptr. 337, 424 P.2d 921.) Since damages bore no relationship to any compensable injuries suffered by plaintiff, their amount is attributable to the jury's desire to make an example of the City by way of punishment. Such a verdict erroneously reflects exemplary and punitive elements of damage and cannot stand.

The judgment is reversed.

FLEMING, Acting Presiding Justice.

COMPTON and BEACH, JJ., concur.