Virginia Lawyers Weekly VA Lawyers Weekly
In plaintiff’s suit under 42 U.S.C. § 1983 alleging defendant officers violated her civil rights when they were present during the private repossession of her vehicle, the Lynchburg U.S. District Court grants summary judgment to one officer on qualified immunity grounds, but denies qualified immunity to a second officer.
Because the line between permissible and impermissible police involvement in a self-help repossession is not clearly defined and defendant McKinley’s conduct did not constitute a clear violation, the court will grant summary judgment to him on the grounds of qualified immunity.
As to defendant Howard, there is a genuine factual dispute regarding his conduct. Plaintiff alleges he threatened to arrest her if she did not surrender her vehicle for repossession. If true, this would amount to a clear constitutional violation – precluding qualified immunity. Defendant Howard asserts, however, that he threatened arrest only for disorderly conduct and plaintiff was free to continue objecting to the repossession. The court cannot resolve this factual dispute at this stage and this question is crucial to the determination of whether defendant Howard is liable.
The parties have cited numerous cases involving police officers who are called to the scene of private repossessions, but neither party has identified 4th Circuit precedent on this precise issue. The court must discern a workable standard from the countless district and circuit court cases on this topic. Among the most helpful discussions of this issue is the one from Barrett v. Harwood, 189 F.3d 297 (2nd Cir. 1999).
Here, the actions taken by defendants are largely agreed upon by the parties, but what is disputed is where the boundary lies between peacekeeping and facilitation, and whether defendants crossed that line.
Determining whether a police officer has aided the repossessor is a fact-sensitive inquiry and must be examined from the totality of the circumstances. Courts look to factors such as 1) whether the police arrived with the repossessor or were called to the dispute; 2) whether the police sided with the repossessor and asserted that the repossession was valid; 3) whether the police ordered plaintiff to comply; 4) whether the police threatened to arrest plaintiff for objecting and 5) whether the police used any physical force. Ultimately, the overarching lesson of the case law is that officers may act to diffuse a volatile situation, but may not aid the repossessor in such a way that the repossession would not have occurred but for their assistance.
Qualified immunity
The court grants summary judgment to several defendant officers. Officer Ball had no direct contact with plaintiff and there is simply no evidence that Officer Ball played an active role in the repossession. Although there is uncertainty about what amount of police conduct constitutes encouraging, facilitating or aiding in a private repossession, there should be little doubt that an officer’s mere presence at the score, without more, is insufficient.
Likewise, it is undisputed that Lieutenant Cook had no direct contact with plaintiff and did not play an active role in the repossession.
Unlike defendants Ball and Cook, Officer McKinley interacted with plaintiff. It is not clear whether McKinley’s conduct transformed from maintaining the place into facilitating the repossession. A reasonable jury could reach either outcome. However, because McKinley’s conduct did not violate a clearly established line between impartial peacekeeping and active participation, he is entitled to qualified immunity.
McKinley may have been genuinely confused about the dispute and been trying to remain neutral. His actions could be construed by a jury as neutral peacekeeping rather than placing the “weight of the state” behind the repossession. Neither party is entitled to judgment as a matter of law on the merits.
However, McKinley is entitled to qualified immunity. Because McKinley’s actions were not overtly supportive of the repossession, he is entitled to qualified immunity.
Second officer
Defendant Howard is not entitled to qualified immunity. He claims his threats of arrest were for disorderly conduct. Plaintiff asserts she was told she would be arrested if she did not “give them [her] car.” A reasonable fact finder could resolve this factual dispute in favor of either party. Neither party is entitled to summary judgment on the merits.
It would be obvious to a reasonable officer that Howard’s alleged actions – most notably threatening the property owner with arrest unless she consents to repossession – were supportive of the repossession rather than neutral and thus impermissible. Instead, Howard allegedly participated in the dispute and used the weight of his authority to encourage and cajole plaintiff to surrender her vehicle. Because Howard’s alleged actions transgressed a clearly established right to due process prior to state action in deprivation of property, he is not entitled to qualified immunity.
Goard v. Crown Auto Inc. (Moon) (Published) No. 6:15cv35, June 2, 2017; USDC at Lynchburg, Va.; Heryka R. Knoespel for plaintiff; Jim H. Guynn Jr. for defendants. VLW 017-3-300, 21 pp.
