Woodward & Lothrop v. Hillary

598 A.2d 1142, 1991 D.C. App. LEXIS 261, 1991 WL 190707

• Court: District of Columbia Court of Appeals
• Decided: September 26, 1991
• Docket: 89-994, 89-1082
• Status: Published

Opinions

FARRELL, Associate Judge:

Woodward & Lothrop, which operates a downtown department store (among others), and Dwayne Wigfall and Earl Sellers, two security guards employed by the store, appeal from a jury verdict in favor of Car-nell Hillary on Hillary’s tort claims for false arrest, false imprisonment, assault and battery, and conversion, and his claim under 42 U.S.C. § 1983 (1989) for violation of his civil rights. Contesting the judgment on the constitutional tort claim, appellants assert that the trial judge erred in concluding as a matter of law that Wigfall and Sellers, who were special police officers commissioned under D.C.Code § 4-114 (1988),¹ acted under color of state law in subduing, arresting and detaining Hillary when he entered the store after closing time in May of 1986. Appellants also contend that the judge erred in allowing the jury to enter a separate finding as to damages on the § 1983 claim, arguing that the components of damages recoverable under the common law tort claims are identical to those comprising § 1983 damages, and thus Hillary received an excessive award for his compensable injuries. Appellants further assert that the judge erred in allowing Dwayne Wigfall to testify that Woodward & Lothrop had terminated his employment for misappropriation of funds. Finally, both sides challenge aspects of the trial judge’s award of attorney’s fees to Hillary under 42 U.S.C. § 1988.

For the reasons discussed below, we find no error in the judgment on the jury verdict, and affirm it. We must, however, vacate the award of attorney’s fees and remand for a statement of findings and conclusions sufficient to permit meaningful review of that award.

I. Facts and Proceedings Below

On the evening of May 9, 1986, Hillary entered the Woodward & Lothrop store at 11th and F Streets, N.W., to buy clothing. A cashier told him the store was closing. According to Hillary, as he turned to leave, Sellers, a security guard employed by the store, grabbed him, turned him around, and told him to accompany him. As they were walking, Sellers struck him in the right eye without provocation. In the ensuing scuffle Sellers called out for assistance and was joined in the attempt to subdue Hillary by his supervisor, Wigfall. They wrestled Hillary to the floor employing a headlock and landing several punches in the process, and handcuffed him. At some point Hillary was searched and, he asserted, two hundred dollars was taken from his pocket. He was taken in handcuffs across the street to the Woodward & Lothrop security office located in a separate building, where he was detained. Metropolitan Police Department Officers were called to transport him, but after two unidentified officers arrived he was released, and no criminal charges were brought against him. Hillary testified that the two hundred dollars taken from him during the search was never returned. According to medical experts who testified at trial, he suffered a fracture of the zygoma (the cheek bone), permanent drooping of his right eyelid, and permanent restriction in his field of vision as a result of the injuries.

On February 6, 1987, Hillary filed suit against Woodward & Lothrop in Superior Court alleging false arrest, false imprisonment, assault and battery, invasion of privacy, intentional infliction of emotional distress and conversion. On December 11, 1987, he filed an amended complaint joining Sellers and Wigfall as defendants and adding a count under 42 U.S.C. § 1983 for violation of his constitutional rights to bodily integrity and against unlawful search and seizure. The case proceeded to trial before Judge Graae and a jury, and at the close of the evidence the judge directed a verdict against Hillary on the invasion of privacy and intentional infliction of emotional distress counts. The judge also ruled as a matter of law that Sellers’ and Wigfall’s actions were taken under color of state law, and instructed the jury accordingly as part of the charge on the § 1983 claim.²

The judge prepared and submitted to the jury a verdict form containing places for the jury to indicate whether it found for or against the plaintiff on each of the remaining counts. For the common law torts, the form included a space for an award of compensatory damages against all defendants jointly and severally, and a space for punitive damages against the individual defendants only. It also contained a space for a separate award of damages on the constitutional tort claim. The jury returned a verdict in favor of Hillary on all counts, awarding him $845 in compensatory damages against all defendants, $10,000 in punitive damages against Sellers and Wigfall on the common law tort claims,³ and $40,000 against all defendants on the constitutional tort claim. The judge denied the defendants' motion for a new trial or for a remittitur, and an appeal was noted.

On May 16, 1989, Hillary applied for attorney’s fees under 42 U.S.C. § 1988, requesting an award based on hours expended on the case and an upward adjustment owing to the uncertain prospect of success and delay in receipt of payment of fees. The judge entered an order granting the application in part by awarding the base amount, but denying the requested multipliers. The defendants noted a second appeal from the order awarding attorney’s fees, and Hillary noted a cross-appeal from the judge’s denial of his request for upward adjustment of the base amount.

II. Section 1983 Issues

A. Color of State Law

Appellants contend that the trial judge erred in concluding, as a matter of law, that Sellers and Wigfall acted under color of state law in subduing, arresting and detaining Hillary. We find no error in the judge’s resolution of this issue, as Sellers and Wigfall were exercising authority conferred on them by their commission as special police officers.⁴

The trial judge relied on decisions of this court holding that special police officers act as agents or instrumentalities of the state in conducting searches and seizures incident to their power to arrest, and thus are subject to the restrictions of the Fourth Amendment. See, e.g., United States v. Lima, 424 A.2d 113, 119-20 (D.C.1980) (en banc); Alston v. United States, supra note 4, 518 A.2d at 441-43; Lucas v. United States, 411 A.2d 360, 362 (D.C.1980). We agree that this principle controls the question presented here.

To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). A person acts “under color of state law” when he exercises a “power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Id. at 49, 108 S.Ct. at 2255 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)).⁵ In Lima, supra, we acknowledged that involvement by the state is necessary to trigger the protections of the Fourth Amendment: “a private individual [commits] no constitutional violation ... absent governmental involvement in the intrusion.” 424 A.2d at 117. The “state action” we deemed necessary to invoke the Fourth Amendment in Lima, Alston, and Lucas, and action “under color of state law” for § 1983 purposes, are “obviously related” if not coextensive concepts. Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 102 S.Ct. 2744, 2749, 73 L.Ed.2d 482 (1982). The Supreme Court recently iterated that if the defendant’s conduct satisfies the “state action” requirement for purposes of the Fourteenth Amendment, “that conduct is also action under color of state law and will support a suit under § 1983.” West v. Atkins, 487 U.S. at 49, 108 S.Ct. at 2255 (quoting Lugar v. Edmondson Oil, 457 U.S. at 935, 102 S.Ct. at 2753). Thus, we have little difficulty concluding that action by a special police officer fairly attributable to the state for purposes of the Fourth Amendment under Lima, Alston and Lucas also satisfies the “color of law” prerequisite for a § 1983 suit.

United States v. McDougald, 350 A.2d 375 (D.C.1976), on which appellants rely, is not to the contrary. There we held that the mere fact a commissioned special police officer does the allegedly unconstitutional act does not itself denote official action. Id. at 378. In particular, we refused to attribute to the state an alleged due process violation — viz., a special police officer’s instruction to a witness not to discuss a criminal case with defense counsel outside the presence of the prosecutor — because the officer, in conveying the policy to the witness, “was not performing a public function authorized by his commission as a special policeman.” Id. In the present case, the required nexus with the state is furnished not by the fact of the commission alone — as in McDougald — but by the convergence of the authority bestowed by the commission and the officers’ actions.⁶ In Alston, citing McDougald, we recognized that special police officers are not “in all their actions” equated with regular police officers, 518 A.2d at 443 (emphasis added), but we held that a special police officer does act as a state agent or instrument when the challenge “involves the arrest of a suspect and actions related thereto — the broad [special police officer] power that distinguishes the [officer] from a private citizen.” Id.7

Appellants may be correct that the immediate impetus for an arrest and accompanying actions by a special police officer is to secure the interests of the private employer. But in exercising authority conferred by the state and not enjoyed by private citizens, the officer exercises a “power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. at 49, 108 S.Ct. at 2255. Sellers and Wigfall acted under color of this authority in forcibly arresting Hillary, searching him incident to the arrest, and seizing the allegedly converted two hundred dollars. In “acting as public officers” they “assume[d] all the powers and liabilities attaching thereto.” NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 429, 67 S.Ct. 1274, 1281, 91 L.Ed. 1575 (1947).⁸

B. Separate Award of Damages for § 1983 Claim

Appellants further assert that the jury should have been asked to return a single verdict on compensatory damages, and that the court erred in submitting damages on the common law torts and the § 1983 claim to the jury separately. They argue that the elements of compensatory damages recoverable for the torts of false arrest, false imprisonment, assault and battery, and conversion are identical to those recoverable for the violations of constitutional rights that Hillary alleged, and that absent some element of injury not compensated by the common law tort damages, the return of two awards for essentially the same injury constitutes an excessive recovery.

Congress intended the § 1983 cause of action to supplement preexisting state remedies available to redress injuries when the acts causing those injuries also constitute a deprivation of constitutional or federal rights. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), overruled in part by Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). But while a plaintiff may seek damages for his injuries on a variety of legal theories, “a cardinal principle of law is that ... a plaintiff can recover no more than the loss actually suffered.” Kassman v. American Univ., 178 U.S.App.D.C. 263, 267, 546 F.2d 1029, 1033 (1976) (per curiam); see Reid v. District of Columbia, 391 A.2d 776, 777 (D.C.1978). The purpose of money damages recoverable for violation of constitutional or federal rights under § 1983, like that of common law tort damages, is to provide compensation for the injury caused by the defendant’s breach of duty (or intentional tort). Memphis Community School Dist. v. Stachura, 477 U.S. 299, 306-07, 106 S.Ct. 2537, 2542-43, 91 L.Ed.2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978) (jury may award nominal damages for deprivation of a constitutional right absent proof of injury, but “substantial damages should be awarded only to compensate actual injury”). In determining the elements of damages recoverable under § 1983, the Supreme Court has instructed courts to look first to common law tort rules of recovery for pecuniary and non-pecuniary loss, specifically whether these provide fair compensation for injuries caused by the particular deprivation of constitutional rights alleged. Id. at 257-58, 98 S.Ct. at 1049-50. While application of tort law analogs may not, in all cases, fairly compensate for violation of constitutional rights, id. at 258, 98 S.Ct. at 1049, “actual injury” remains the touchstone, and “damages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of [§ 1983] damages....” Stachura, 477 U.S. at 310, 106 S.Ct. at 2544.

Hillary alleged that he was accosted in the store, illegally arrested, beaten, dragged across a public street in handcuffs, detained and wrongfully deprived of two hundred dollars in an unlawful search and seizure. These acts caused him monetary loss, physical injury, mental anguish, humiliation, and embarrassment. He sought compensation for the injuries by alleging violation of his constitutional rights to be free from unlawful arrest, search and seizure, and physical abuse, and by his common law tort claims for false arrest, false imprisonment, assault and battery and conversion. Thus, as appellants assert, Hillary alleged no injury in his § 1983 claim that could not fully be compensated by recovery on his common law claims. Stachura, 477 U.S. at 307, 106 S.Ct. at 2543 (§ 1983 damages can include compensation for monetary loss, personal humiliation, mental anguish and suffering). Because his § 1983 claim essentially was an alternative basis for the same recovery sought by way of the tort claims, submission of two verdict forms on damages created a substantial risk that the jury would allow him to recover twice for a single injury. See Clappier v. Flynn, 605 F.2d 519, 528-30 (10th Cir.1979). Separate damage verdicts also could have suggested to the jury that there was a compensable component of a “constitutional” deprivation independent of the injury actually suffered, contrary to Stachura.⁹

Accordingly, we must determine whether either of these risks materialized — whether the jury’s verdict reflects double recovery or likely was based on any other factor than the actual amount of injury suffered. If so, then it must be set aside.

In overruling the defendants’ objection to bifurcation of damages on the ground that the jury might award a double recovery, the trial judge told the parties:

[The jury] is going to be instructed very clearly on the question of damages that they are only to award damages that they believe will compensate [plaintiff] on what he is fairly entitled to in whatever category that they are asked to do it.

Although the judge then instructed the jury to return separate verdicts on damages, in his charge on the elements of damages he did not distinguish among Hillary’s various claims but instead explained — as to all claims — that the jury must “determine what amount will fairly and reasonably compensate the Plaintiff for his injuries and damages.” They were to consider

the extent and duration of any bodily injuries sustained; the effect [of] such injuries ... on the overall physical and mental health and well-being of the Plaintiff; any physical pain and mental anguish the Plaintiff has suffered; any disfigurement or deformity and any humiliation or embarrassment associated with it; any inconvenience or discomfort that has been suffered by the Plaintiff ... or [that he] will probably suffer in the future; any medical expenses that the Plaintiff has incurred and finally any damage or loss to the Plaintiffs personal property.

Just before the jury retired, the judge instructed:

Let me emphasize to you that the two damage considerations that you have to make, if you get to them, they are for the three common law claims together and then as to the Constitutional claim separately. You should in each of these two categories ... award as I have instructed you before, only those damages as to those claims that you feel are appropriate and would reasonably compensate the Plaintiff.

These instructions do not ease entirely our misgivings about the submission of separate verdict forms on damages. In future eases of this kind, the trial judge should make explicit by instructions that the plaintiff may receive only those damages which, in the aggregate, fairly compensate for the injuries actually suffered. Nevertheless, the instructions given did tend to protect against a double recovery. Moreover, and of key significance to our holding, the verdict returned suggests strongly that the jury followed the court’s admonition. On the common law claims, the jury awarded Hillary $845, an amount conforming exactly to his claim for pecuniary losses, which included $645 in medical bills and the $200 allegedly taken from him. On the § 1983 claim, considering the testimony which the jury credited in finding the defendants liable, the verdict of $40,000 was not plainly unreasonable as compensation for plaintiff’s non-pecuniary losses as specified in the jury instruction quoted above. We hold, therefore, that the two verdicts rendered do not manifest an award of double damages.

III. Admissibility of Wigfall’s Statement

Appellants contend that the judge committed reversible error in admitting defendant Wigfall’s testimony that he had been discharged by Woodward & Lothrop for misappropriation. In fact, however, Wigfall’s testimony that he had been fired for that reason occurred as an apparent surprise to everyone, in a manner it is necessary to describe.

At trial Hillary called Wigfall as an adverse witness. During direct examination, Hiilary’s counsel established that Wigfall had left Woodward & Lothrop’s employment in November 1988 and asked why Wigfall had left, but defense counsel objected before the witness could respond. Previously, defendants had moved in li-mine to exclude any reference to the fact that Wigfall was no longer a security guard at Woodward & Lothrop, anticipating an attempt by Hillary to show that Woodward & Lothrop had removed him because he acted wrongly in treating Hillary. Defendants asserted, to the contrary, that Wigfall had been transferred to a different post “as a combination of declining performance and his request to be moved,” and that even if he had been replaced as security guard because of the present incident, the transfer was a subsequent remedial measure, proof of which is generally inadmissible.

Apparently the trial judge did not rule on the motion before Wigfall took the stand, and defendants repeated these arguments in objecting to the question by plaintiff’s counsel cited above. The following exchange then took place at the bench:

MR. MORRISON [defendants’ counsel]: The fact that he’s no longer a security guard is one of the points of our motion in limine; that that is not subject to the precaution taken by Woodward & Lothrop. That is not admissible to show liability.

MR. KING: [plaintiff’s counsel]: I did not know why he was no longer at Woodward & Lothrop. If he would stipulate that Mr. Wigfall was terminated, we would take a stipulation.

MR. MORRISON: But it’s not admissible.

THE COURT: What’s the basis for it? Why do you need it in, Mr. King?

MR. KING: I’m trying to find out why he no longer works for Woodward & Lothrop.

THE COURT: Yes, why?

MR. KING: I believe Mr. Wigfall was terminated as a result of this incident. I believe he was. Now, that may have been a corrective action by Woodward & Lothrop, but that’s not my purpose for raising it. My purpose for raising it is to prove that in fact Camell Hillary was improperly treated at Woodward & Loth-rop that day.

MR. MORRISON: I don’t think it’s—

THE COURT: I will let you ask him.

Hillary’s counsel repeated the question, and asked whether it was true that Wigfall had been terminated for declining performance as defendants had asserted in their motion in limine. When Wigfall replied yes, counsel asked the question approved by the trial court — whether Wigfall was terminated as a result of the incident with Hillary — to which Wigfall replied no. Counsel then asked Wigfall to specify the nature of the declining performance that led to his termination, and after another fruitless objection by defense counsel, Wig-fall answered, “I misappropriated some funds from Woodies.”

We need not decide whether the judge ruled correctly in allowing Hillary to pursue questioning about a “subsequent remedial measure,” cf. C. McCormick, McCormick on Evidence § 275 (3d ed. 1984), because Wigfall’s answer made clear that his firing had nothing to do with his conduct involving Hillary. Instead we must consider appellant’s argument that the effect of the questioning was to allow Wigfall’s testimony to be impeached — “in a case where credibility was essential” — by “evidence of a bad act unaccompanied by evidence of a criminal conviction.” Appellants argue that D.C. Code § 14 — 305(b)(1) (1989) limits impeachment by other conduct to acts resulting in conviction.¹⁰ While that is generally true, we have also recognized and applied the principle that “a witness may be cross-examined on a prior bad act that has not resulted in a criminal conviction ... where: (1) the examiner has a factual predicate for such question, and (2) the bad act bears directly upon the veracity of the witness with respect to the issues involved at trial.” Sherer v. United States, 470 A.2d 732, 738 (D.C.1983) (citations and internal quotation marks omitted) (stating the rule), cert. denied, 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984); Roundtree v. United States, 581 A.2d 315, 323 (D.C.1990); see Pullman Co. v. Hall, 55 F.2d 139, 141 (4th Cir.1932); Vogel v. Sylvester, 148 Conn. 666, 671, 174 A.2d 122, 127 (1961); 3A Wigmore, Evidence § 982 (Chadboum rev. 1970); C. McCormick, supra, § 42.

Except as provided in paragraph (2), for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a criminal offense shall be admitted if offered, either upon the cross-examination of the witness or by evidence aliunde, but only if the criminal offense (A) was punish-ably by death or imprisonment in excess of one year under the law under which he was convicted, or (B) involved dishonesty or false statement (regardless of punishment).

In this case, it is unnatural to inquire whether Hillary had a factual predicate on which to ask whether Wigfall had been fired for misappropriation because that is not the answer Hillary — or apparently anyone else — expected. Nevertheless, Wig-fall’s own answer established a sufficient basis for the conclusion that he had engaged in misappropriation. Moreover, given the trial judge’s express allowance of the questioning, we cannot find bad faith by Hillary’s counsel in pursuing a line of inquiry designed (erroneously, as it turned out) to link Wigfall’s firing to his actions in regard to Hillary. Thus, the primary issue is whether the conduct Wigfall admitted— misappropriation of employer funds — is of a kind that “[bore] directly upon [his] veracity” with respect to the issues at trial, in particular his defense that he had done no more than subdue an unruly and belligerent customer who refused to leave the store. Under the Federal Rules of Evidence, as under the rule of Sherer, a witness may be impeached with acts not resulting in conviction if those acts are “clearly probative of truthfulness or untruthfulness.” Fed.R.Evid. 608(b) (1989). Federal courts have held that conduct amounting to embezzlement satisfies this condition. See J. Weinstein, Weinstein’s Evidence, U 608[05], at 608-46 (1988); United States v. Schwab, 886 F.2d 509, 514 (2d Cir.1989), cert. denied, 493 U.S. 1080, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990); United States v. Leake, 642 F.2d 715, 718 (4th Cir.1981).¹¹ We conclude that Wig-fall’s admission to misappropriation was probative of his truthfulness in this case.

Appellants’ final argument is that the judge failed to balance the probative value of the impeachment against its potential for prejudice. See Roundtree, 581 A.2d at 323. The trial judge, however, was as surprised as anyone by Wigfall’s answer. In their in limine motion appellants never explained to the judge that Wigfall had been fired for misappropriation, referring only to his “declining performance.” When the answer came out, they did not move to strike it as overly prejudicial. In these circumstances, the judge cannot be faulted for failing to conduct a balancing he was given no opportunity to perform.¹² Nor are we persuaded by appellants' suggestion that Hillary’s counsel exploited the answer so as to invite the jury to draw a forbidden “propensity” inference — that because Wigfall had been discharged for misappropriation, he was likely to have stolen Hillary’s money as plaintiff alleged. The only reference even colorably raising this possibility occurred during closing argument when counsel stated:

We are talking about credibility. Mr. Wigfall who was hired by Woodward & Lothrop to protect its property from deprivation was fired by Woodward and Lothrop. For what? He said it himself. He took some money from Woodies. But, that’s the same man that arrested this man for simply walking in the store. And he was just doing his job.

Any suggestion in these statements that the jury could infer a general propensity for theft from Wigfall’s confessed dishonesty is too attenuated to justify setting aside the jury’s verdict.

IV. Attorney’s Fees

Finally, both sides challenge the trial judge’s order awarding attorney’s fees to Hillary: appellants assert that the judge abused his discretion in failing to discount the fee requested to reflect excessive amounts of time claimed for certain tasks, while Hillary contends that the judge erred in failing to adjust the fee upward to reflect the risk of nonpayment and delay in payment of fees. We do not reach the merits of these issues. Because the judge set out no findings and conclusions, we are unable to determine whether he exercised his discretion in accordance with the legal standards governing fee awards under 42 U.S.C. § 1988. Even in the context of more conventional fee awards, we have pointed to the need for specific findings by the trial court. Swift v. Swift, 566 A.2d 1045, 1047-48 & n. 2 (D.C.1989). And, in the context of awards under § 1988, the Supreme Court has stressed that “it remains important ... for the [trial] court to provide a concise but clear explanation of its reasons for the fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. , 76 L.Ed.2d 40 (1983); see also Blum v. Stenson, 465 U.S. 886, 892, 104 S.Ct. 1541, 1545, 79 L.Ed.2d 891 (1984); Henderson v. District of Columbia, 493 A.2d 982, 998-1003 (D.C.1985).

For the foregoing reasons, the judgment on the verdict is affirmed and the order awarding attorney’s fees is vacated and the case remanded for the entry of findings in accordance with the standards governing § 1988 fee awards.

So ordered.

1 . See note 4, infra.

2 .The parties stipulated, and the judge instructed the jury, that if the jury found Sellers and Wigfall liable for violating Hillary’s constitutional rights, Woodward & Lothrop would also be liable on the § 1983 claim. Because Woodward & Lothrop expressly conceded liability on that condition, we have no occasion to decide whether a private employer can ever be held vicariously liable for the constitutional torts of an employee on a respondeat superior theory. But see Temple v. Albert, 719 F.Supp. 265, 268 (S.D.N.Y.1989) (citing Iskander v. Village of Forest Park, 690 F.2d 126, 128-29 (7th Cir.1982)) (private corporate employer not vicariously liable under § 1983); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir.1974); Estate of Iodice v. Gimbels, Inc., 416 F.Supp. 1054, 1055 (E.D.N.Y.1976). See also Annotation, Vicarious Liability of Superior Under 42 USCS § 1983 for Subordinate’s Acts in Deprivation of Civil Rights, 51 A.L.R.Fed. 285, 290 n. 12 (1981).

3 . Appellants make no separate challenge to the award of punitive damages on this appeal.

4 . Pursuant to D.C.Code § 4-114, the Mayor may appoint a special police officer for duty in connection with private property, upon application of the owner of such property. As we have previously observed, Alston v. United States, 518 A.2d 439, 440 n. 3 (D.C.1986), a special police officer’s commission authorizes him or her to exercise arrest powers significantly broader than those of ordinary citizens or licensed security guards. The relevant statute provides that the officer "shall have the same powers as a law enforcement officer to arrest without warrant for offenses committed within premises to which his jurisdiction extends, and may arrest outside the premises on fresh pursuit for offenses committed on the premises.” D.C.Code § 23-582(a) (1989). This authority, though, is limited to the specific place or property the officer has been commissioned to protect. 6A DCMR § 1100.2 (1984).

Appellants argue that the jury should have been allowed to determine whether Sellers and Wigfall acted under color of state law. It is true that this inquiry is fact-specific to the extent that “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). But determining the "true significance" of state involvement in private conduct involves analysis of the circumstances of the case in light of principles of constitutional law, and we believe the question is one for the trial court. See Weise v. Syracuse Univ., 522 F.2d 397, 408 & nn. 14, 15 (2d Cir.1975); Braden v. University of Pittsburgh, 477 F.2d 1, 4-5 (3d Cir.1973) (case remanded for further hearing and development of the record by the district court to enable resolution of state action question). This is especially so where, as here, the facts bearing on the issue — Le., that the security guards were special police officers exercising arrest powers authorized by their commissions — are essentially undisputed.

5 . "[M]ost rights secured by the Constitution are protected only against infringement by governments” and not private individuals. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978).

6 . Governmental licensing or extensive regulation of private activity alone does not warrant ascribing acts of the regulated entity to the state. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177, 92 S.Ct. 1965, 1973, 32 L.Ed.2d 627 (1972).

7 . As McDougald itself pointed out, "the power of arrest ... is the sole factor which distinguishes the holder of a special police commission from a private citizen,” suggesting that when a special police officer performs the distinctive function authorized by his commission, he acts as an agent of the state. 350 A.2d at 378.

8 . Other courts have applied these principles to reach the same conclusion in circumstances similar to those presented here. See, e.g., Griffin v. Maryland, 378 U.S. 130, 132-35, 84 S.Ct. 1770, 1771-73, 12 L.Ed.2d 754 (1964) (special policeman deputized under Maryland county ordinance to protect amusement park acted under color of state law in arresting plaintiffs for trespassing); Williams v. United States, 341 U.S. 97, 98-100, 71 S.Ct. 576, 577-79, 95 L.Ed. 774 (1951) (private detective who held a special police officer’s license issued by the City of Miami acted under color of law in participating in “third degree" of plaintiff); Temple v. Albert, supra note 2, 719 F.Supp. at 267 (special patrolmen employed by hospital acting pursuant to statutory grant of police power acted under col- or of state law in assaulting plaintiff incident to an arrest); Rojas v. Alexander's Dep’t Store, 654 F.Supp. 856, 858 (E.D.N.Y.1986) (special patrolman employed by department store acted under color of state law in arresting and handcuffing plaintiff); Thompson v. McCoy, 425 F.Supp. 407, 409 (D.S.C.1976) (security guard employed by store with statutory power identical to sheriffs to arrest for crimes committed on the premises acted under color of state law in arresting and assaulting plaintiff); DeCarlo v. Joseph Home & Co., 251 F.Supp. 935, 936 (W.D.Pa.1966) (store detective entitled to arrest under Professional Thieves Act acted under color of state law in arresting plaintiff).

9 . The trial judge submitted the damages issue on separate verdict forms in response to Hillary’s counsel’s concern that, if the defendants prevailed on their appeal of the court’s “color of law” ruling, the entire verdict would be set aside because it would be impossible to determine how much of the award the jury attributed to the common law tort claims, making a retrial on damages necessary.

10 . D.C.Code § 14-305(b)(l) provides in part:

11 . By citing to Fed.R.Evid. 608(b), we do not mean to suggest identity in all respects between that rule and the rule stated in Sherer.

12 . Appellants argue that Wigfall’s misappropriation had little relevance to the issues at trial because it occurred some two and one-half years after the alleged assault and false arrest. But since the testimony was relevant only to impeach Wigfall’s testimony at trial, the pertinent time-frame is the time between the bad act probative of veracity and the time of the trial testimony. Wigfall was discharged in November 1988 and gave his trial testimony in March 1989, only four months later.