Abbott v. Latshaw

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit

12-11-1998

Abbott v. Latshaw
Precedential or Non-Precedential:

Docket 97-3460

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Recommended Citation
"Abbott v. Latshaw" (1998). 1998 Decisions. Paper 276.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/276

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Filed December 11, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3460

MARK ABBOTT,
Appellant

v.

LAURIE J. LATSHAW, ALBERT DIEHL, DENNIS GEORGE,
ROBERT STAFFORD and DONALD SARSFIELD

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 96-803)

Argued Under Third Circuit LAR 34.1(a)
June 11, 1998

Before: STAPLETON, COWEN, AND RENDELL,
Circuit Judges

(Opinion Filed: December 11, 1998)

David J. Millstein (ARGUED)
Jacquelyn A. Knupp
Millstein & Knupp
P.O. Box 467
Youngwood, PA 15697-0467
Attorneys for Appellant
 Christopher K. McNally (ARGUED)
Murphy Taylor, P.C.
326 Third Avenue
Pittsburgh, PA 15222
Attorney for Appellees,
Dennis George, Robert Stafford
and Donald Sarsfield

John K. Greiner (ARGUED)
Belden, Belden, Persin & Johnston
117 North Main Street
Greensburg, PA 15601
Attorney for Appellee,
Albert Diehl

OPINION OF THE COURT

RENDELL, Circuit Judge:

On the evening of April 23, 1996, Laurie Latshaw
telephoned Constable Albert Diehl and enlisted his aid in
her plan to take a van from her former husband, Mark
Abbott, the next day. Although Latshaw recovered the van,
her plan was less than successful in that Abbott then filed
an action under 42 U.S.C. S 1983 against her, Diehl, and
three Greensburg, Pennsylvania, police officers who arrived
on the scene to assist the constable, for violation of his
Fourteenth Amendment right to procedural due process.
The district court granted summary judgment and
dismissed Abbott's claim against all of the defendants,
determining that the law enforcement officers were entitled
to qualified immunity, and that both the pleadings and the
evidence failed to implicate Latshaw in any state action.
Abbott appeals the district court's dismissal of hisS 1983
claim against all of the defendants, as well as its denial of
his motion to add a claim alleging a violation of the Fourth
Amendment. We will affirm summary judgment in favor of
Officer Sarsfield and Officer Stafford of the Greensburg
police department on qualified immunity grounds, but will
reverse dismissal of Abbott's S 1983 claim against Diehl,
Lieutenant George of the Greensburg police, and Latshaw.

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We will also reverse the district court's denial of leave to
amend the complaint.

I. BACKGROUND

Mark Abbott and Laurie Latshaw were married from 1983
until 1993. Latshaw's father, Dale Feather, purchased a
van with "GMAC" financing in 1989, and received a
Commonwealth of Pennsylvania certificate of title issued in
his name. On November 18, 1991, Feather and Abbott
signed a Bill of Sale in which Feather agreed to"grant[ ],
sell[ ], convey[ ] and deliver[ ]" the van to Abbott "free and
clear of all liens and encumbrances . . . subject to the
Purchaser paying all of the loans and encumbrances levied
against" it. Thereafter, Abbott and Latshaw used the van,
but its title and registration remained in Feather's name.

Abbott retained sole possession of the van after he and
Latshaw were divorced in 1993. He had completely paid off
the GMAC loan on February 25, 1994, but chose not to
transfer the van's title and registration to his own name
because by doing so he would have forfeited the van's non-
transferable warranty.

On April 23, 1996, Feather assigned the van's title to his
daughter by writing her name and address on the reverse
side of the Certificate of Title alongside his notarized
signature. The next day, Latshaw took the document to
Greensburg where a title service reissued the van's
registration in her name. She then telephoned Albert Diehl,
a Westmoreland County constable, and informed him"that
[she had] the title to the car, it is signed over to [her] and
that [she] needed help in retrieving it from Mark Abbott."
She expected the constable to "tell Mark that, yes, the [van]
was [hers] and [she] could take it and that was it." Latshaw
admits that she contacted Diehl in his capacity as a
constable. She also testified that she paid him for his
services.1
_________________________________________________________________

1. The transcript of Latshaw's deposition reads as follows:

Q. Now, when you contacted Al Diehl, you were cont acting him as
a constable; is that correct?

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On April 25, 1996, Latshaw and Diehl met outside
Abbott's chiropractic office in Greensburg. Neither of them
had notified Abbott of the impending seizure. As proof that
she owned the van, Latshaw showed the constable the
Pennsylvania certificate of title issued in her father's name
and bearing a notarized assignment to her, a temporary
registration issued in her name, temporary license plates,
and an insurance card indicating that the van was insured
by a policy issued to James P. Latshaw, presumably her
husband.

Convinced that Latshaw was entitled to immediate
possession of the van, Diehl approached Abbott, identified
himself as a constable, and asked him if he would give
Latshaw the keys to the van. Abbott refused. He insisted
that he had paid for the van, had driven it for seven years,
and had a bill of sale at home establishing that he owned
it. Abbott asked if he could drive the van home to get the
proof of ownership, but Diehl threatened to arrest Abbott if
he drove off in "her vehicle." Abbott then telephoned David
Harr, the attorney who had represented him in the sale
transaction with Feather. Harr told Diehl that the bill of
sale existed, and warned the constable that he would be
held liable if he helped Latshaw take the van.

Shortly thereafter, Diehl telephoned the Greensburg
police and requested that an officer come to the scene to
review Latshaw's documentation. Lieutenant Dennis
George, Officer Robert Stafford, and Officer Donald
Sarsfield of the Greensburg police arrived on the scene in
response to the call. They reviewed Latshaw's paperwork
and confirmed by radio that the van was in fact registered
_________________________________________________________________

A. Yes, I was.

Q. And did you pay him for his services?

A. Yes, I did.

Q. How much did you pay him?

A. $ 40.

(Latshaw Dep. at 13-14).

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to Dale Feather. One of them told Latshaw she was entitled
to immediate possession of the van.

David J. Millstein, Abbott's current counsel, arrived at
the scene at about this time. He spoke briefly to Diehl, and
then entered into a heated discussion with Lt. George in
which he vehemently opposed the seizure. When words
proved ineffective, Millstein took action. By then, a
locksmith whom Diehl had recommended to Latshaw had
cut a key to the van. Millstein boxed the van into its
parking space with his car in order to prevent Latshaw from
driving it out of the parking lot. According to the police
report submitted by Stafford, Lt. George then threatened to
arrest Millstein if he did not make way for the van. When
Millstein refused to do so, Lt. George told him that he was
under arrest. The Greensburg police officers then issued
him a summary citation for disorderly conduct and briefly
detained him in a police car. Meanwhile, Latshaw managed
to maneuver the van around Millstein's car and drove off.

Abbott commenced a 42 U.S.C. S 1983 action against
Diehl, the Greensburg police officers, and Latshaw,
claiming that they deprived him of property under color of
state law without due process. The district court had
jurisdiction pursuant to 28 U.S.C. SS 1331 and 1343(a)(3),
and 42 U.S.C. S 1983. Abbott now appeals from the July
21, 1997, final order of the district court granting summary
judgment on qualified immunity grounds in favor of Diehl
and the Greensburg police officers, dismissing hisS 1983
claim against Latshaw for lack of state action, and denying
him leave to amend his complaint to include an alleged
violation of the Fourth Amendment.

We have jurisdiction to review the final order of the
district court under 28 U.S.C. S 1291. In reviewing an order
of summary judgment predicated on qualified immunity
grounds, we exercise plenary review over the district court's
legal conclusions. See Kornegay v. Cottingham , 120 F.3d
392, 395 (3d Cir. 1997). We will affirm summary judgment
if, after drawing all reasonable inferences from the
underlying facts in the light most favorable to the non-
moving party, we conclude that there is no genuine issue of
material fact to be resolved at trial, and that the moving
party is entitled to judgment as a matter of law. See id.

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II. DISCUSSION

The district court held that although Abbott asserted a
property interest upon which a S 1983 claim for violation of
procedural due process may be predicated, qualified
immunity shields the officers from potential liability for
their role in the seizure. We agree with the finding that the
officers were state actors and effected a constitutional
deprivation, but part company with the district court on the
issue of qualified immunity.

A. 42 U.S.C. S 1983

Section 1983 provides a cause of action for violations of
federally secured statutory or constitutional rights"under
color of state law." 42 U.S.C. S 1983. See West v. Atkins,
487 U.S. 42, 48 (1988). Abbott alleges in his S 1983 claim
that Constable Diehl and the Greensburg police officers
violated his Fourteenth Amendment right to procedural due
process by using the authority vested in Pennsylvania law
enforcement officers to deprive him of property without
prior notice and an opportunity to be heard. If their
conduct satisfies the state action requirement of the Due
Process Clause, then it also qualifies as action"under color
of state law" for S 1983 purposes. See Lugar v. Edmondson
Oil Co., 457 U.S. 922, 935 n.18 (1982).

1. Constable Diehl and the Greensburg Police Officers

Where, as here, defendants have successfully raised the
shield of qualified immunity in a S 1983 action, an
appellant trying to reverse summary judgment bears the
initial burden of showing that the defendants violated a
clearly established statutory or constitutional right. See
Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)
(citing In re City of Phila. Litig., 49 F.3d 945, 961 (3d Cir.
1995)). In particular, Abbott must establish that the officers
were acting as state actors when they deprived him of a
property interest to which he had a legitimate claim of
entitlement without the process he deserved.

a. State Action

State action is a threshold issue in a Fourteenth
Amendment claim. "[T]he deprivation must be caused by

6
the exercise of some right or privilege created by the State
. . . or by a person for whom the state is responsible," and
"the party charged with the deprivation must be a person
who may fairly be said to be a state actor." Lugar, 457 U.S.
at 937. The traditional definition of action under color of
state law is similar, and requires that one liable under
S 1983 "have exercised power `possessed by virtue of state
law and made possible only because the wrongdoer is
clothed with the authority of state law.' " West, 487 U.S. at
49 (quoting United States v. Classic, 313 U.S. 299, 326
(1941)).

We need not dwell on whether Diehl and the Greensburg
police officers were state actors. They were clearly invested
with the power and authority of the state when they
assisted Latshaw, and "state employment is generally
sufficient to render the defendant a state actor." Lugar, 457
U.S. at 935 n.18. In Pennsylvania, constables are elected
public officials with prescribed duties and liabilities, see 13
Pa. Cons. Stat. Ann. SS 1, 41, 45 (1998), and we likewise
consider police officers to be a "set of state actors."
Michigan v. Jackson, 475 U.S. 625, 634 (1986). Diehl
admits that he acted as a constable, and identified himself
as such to Abbott. The other officers arrived on the scene
in response to Diehl's call for assistance, and were on duty.
All four law enforcement officers were clearly state actors.

b. Deprivation of a Constitutional Right

It is elementary that procedural due process is implicated
only where someone has claimed that there has been a
taking or deprivation of a legally protected liberty or
property interest. See Board of Regents v. Roth , 408 U.S.
564, 569 (1972). It is also well established that possessory
interests in property invoke procedural due process
protections. See Fuentes v. Shevin, 407 U.S. 67, 87 (1972).
In Fuentes, the Supreme Court struck down as
unconstitutional Florida and Pennsylvania prejudgment
replevin procedures used by creditors to recover household
goods purchased under conditional sales contracts and on
which payments were allegedly overdue. "Clearly their
possessory interest in the goods, dearly bought and
protected by contract, was sufficient to invoke the

7
protection of the Due Process Clause." Id. at 86-87 (footnote
omitted).2 It is equally clear that Abbott's possessory
interest in the van he had driven for seven years invoked
the protection of the Due Process Clause.

At the core of procedural due process jurisprudence is
the right to advance notice of significant deprivations of
liberty or property and to a meaningful opportunity to be
heard. See LaChance v. Erickson, ___ U.S. ___, 118 S. Ct.
753, 756 (1998); Boddie v. Connecticut, 401 U.S. 371, 379
(1971). Prior notice is not, however, absolutely necessary so
long as other procedures guarantee protection against
erroneous or arbitrary seizures. See Mitchell v. W. T. Grant
Co., 416 U.S. 600, 605-606 (1974); Finberg v. Sullivan, 634
F.2d 50, 58 (3d Cir. 1980) (en banc). In Mitchell, the Court
upheld a Louisiana statute requiring creditors to obtain
judicial approval, post a bond, and submit a verified
petition or affidavit before they sequestered property
without notice from debtors entitled to seek immediate
dissolution of the writ or to regain possession of the
sequestered goods by filing a bond. Comparable procedures
did not protect Abbott here. The Court has also found prior
notice unnecessary in rare cases where (1) a seizure was
directly necessary to secure an important governmental or
general public interest, (2) there was a special need for very
prompt action, and (3) "the State has kept strict control
over its monopoly of legitimate force: the person initiating
the seizure has been a government official responsible for
determining, under the standards of a narrowly drawn
statute, that it was necessary and justified in a particular
instance." Fuentes, 407 U.S. at 91. This rare exception to
the general requirement of providing notice before state
action deprives an individual of a protected property
interest is also inapplicable here.
_________________________________________________________________

2. The defendants argue that Abbott had no property interest in the van
because he did not list it among his assets in a prior bankruptcy
proceeding, and is therefore judicially estopped from claiming he owns it.
They also contend that his ownership of the van was uncertain because
it was not explicitly awarded to him in the divorce proceedings. Because
deprivation of a possessory interest alone invokes the right to procedural
due process, we need not consider these arguments as to who owned the
van.

8
Abbott has a strong claim against Diehl for violating his
right to procedural due process by failing to give him
advance notice and an opportunity to be heard prior to
Latshaw's seizure of the van. The constable played a
principal role in the seizure. Latshaw enlisted him, and
paid for his help because she believed that she could not
take the van from Abbott without it. According to Abbott,
"Mr. Diehl walked into my office and identified himself as a
constable and told me that he was [there to take my
vehicle," and that "we're going [to] take the vehicle one way
or another." The constable threatened to arrest Abbott for
driving "her vehicle" if he tried to drive the van home.
Viewing the record in the light most favorable to Abbott, we
find that a reasonable jury could conclude that Diehl used
his public authority to help Latshaw take possession of the
van, and as such was obligated to notify Abbott of the
seizure in advance and to provide him with a meaningful
opportunity to be heard.

The Greensburg police officers were called to the scene to
check Latshaw's documentation, which they did. There is
no evidence that two of the officers -- Sarsfield and Stafford
-- did any more than this. The mere presence of police at
the scene of a private repossession does not, alone,
constitute state action causing a deprivation of a protected
property interest. In Menchaca v. Chrysler Credit Corp., 613
F.2d 507 (5th Cir. 1980), the Fifth Circuit Court of Appeals
declined to find state action on the part of police officers
who arrived at the scene of a self-help repossession in
response to a report regarding a disturbance, maintained
the peace, but did not take sides or assist the private
repossessor in any way. Id. at 511-13. Officers Sarsfield
and Stafford confined their conduct to the routine police
procedures of checking the vehicle registration, and cannot
be said to have used state action to deprive Abbott of his
due process rights. See United States v. Coleman , 628 F.2d
961, 964 (6th Cir. 1980) (acquiescence by police does not
transform private acts into state action; police presence is
not necessarily encouragement). However, Lieutenant
George did not remain neutral, but advised Latshaw that
she had a right to immediate possession of the van.
Lt. George also ignored Millstein's ardent protest of the
seizure, and threatened to arrest Millstein if he did not

9
move his car to make way for Latshaw. Although he was
not the instigator, a jury could find that Lt. George, by his
conduct, joined forces with Diehl in the unconstitutional
deprivation, going beyond the permissible conduct outlined
in Menchaca. See, e.g., Booker v. City of Atlanta, 776 F.2d
272, 274 (11th Cir. 1985) (plaintiff can withstand summary
judgment if jury could find that police involvement
constitutes intervention and aid). This affirmative
intervention and aid constitutes a sufficient basis for a
reasonable trier of fact to find that Lt. George played a role
in the seizure and resulting violation of Abbott's
constitutional rights. Sarsfield and Stafford are therefore
entitled to dismissal of the claims against them, but
Lt. George is implicated in the constitutional violation.

2. Laurie Latshaw

Although not an agent of the state, a private party who
willfully participates in a joint conspiracy with state officials
to deprive a person of a constitutional right acts"under
color of state law" for purposes of S 1983. See Dennis v.
Sparks, 449 U.S. 24, 27-28 (1980); Adickes v. S. H. Kress
& Co., 398 U.S. 144, 152 (1970); McKeesport Hosp. v.
Accreditation Council for Graduate Med. Educ., 24 F.3d 519,
524 (3d Cir. 1994) ("State action may be found if the private
party has acted with the help of or in concert with state
officials."). The district court dismissed Abbott's S 1983
claim against Latshaw sua sponte because it found that his
complaint failed to allege a conspiracy between Latshaw
and Diehl, and that "the record reveal[ed] no basis to infer
that any such allegation could withstand scrutiny." Abbott
had alleged in his complaint that Diehl acted "at the
instance and request of Defendant Latshaw" and that
Latshaw was thus "acting under color of state law" for
purposes of the lawsuit. Further, the complaint depicted
joint action by Latshaw and Diehl in effectuating the
recovery of the van. This is not a case in which the
complaint contains conclusory allegations of concerted
action but is devoid of facts actually reflecting joint action.
See, e.g., Fries v. Helsper, 146 F.3d 452, 458 (7th Cir.
1998), cert. denied, 67 U.S.L.W. 3106, 3151 (U.S. Oct. 13,
1998) (No. 98-219). Rather, the complaint easily satisfied

10
the standards of notice pleading; no more is required of a
plaintiff in S 1983 cases. See Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
168-69 (1993). The district court's dismissal sua sponte
was improper because the pleading contained sufficient
allegations to withstand a motion to dismiss. Further, we
find the court's conclusion that the record contained no
facts which could support a conspiracy allegation to have
been premature -- since no motion for summary judgment
had been filed -- but also curious in light of the facts borne
out by the evidence, including Latshaw's statement under
oath that she contacted Diehl and that she paid him to
help her take possession of the van. (See Latshaw Dep. at
14). We will therefore reverse the district court's sua sponte
dismissal of Abbott's S 1983 claim against Latshaw.

B. Qualified Immunity

Qualified immunity shields public officials performing
discretionary functions from S 1983 and Fourteenth
Amendment liability "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 (1982). Our qualified
immunity inquiry thus proceeds in two steps. See Sharrar
v. Felsing, 128 F.3d 810, 828 (3d Cir. 1997). First, we must
determine whether the defendants violated "clearly
established" rights. Second, we must decide whether, in
light of the concrete, clearly established, and particular law
applicable on April 25, 1996, and the information then
available, a reasonable officer would have believed that the
conduct of Diehl and/or the Greensburg police officers
deprived Abbott of his right to procedural due process. See
Anderson v. Creighton, 483 U.S. 635, 640-41 (1987); Reitz
v. County of Bucks, 125 F.3d 139, 147 (3d Cir. 1997).

It is readily apparent that the applicable law regarding
procedural due process was "clearly established" at the
time of the alleged violation of Abbott's rights. As we noted
earlier, the Supreme Court's 1972 decision in Fuentes held
that due process protects possessory interests in property.
407 U.S. at 87. Thus, the law in this area was clear for at

11
least twenty-four years prior to the incident involving
Abbott and the defendants.

However, resolution of the second element of the qualified
immunity test is more complex. The district court
determined that an objectively reasonable officer in the
same situation would not have realized that the defendants
were violating Abbott's rights, and ruled that Diehl and the
Greensburg police officers were thus immune fromS 1983
liability for helping Latshaw. The court held that an officer
who had reviewed Latshaw's documentation would
reasonably have concluded that she was entitled to
immediate possession of the van. Therefore, it found, Diehl
and the Greensburg police officers could not have believed
they were denying Abbott due process of law. We disagree.

The district court and the defendants rely heavily on the
fact that under Pennsylvania law certificates of title
represent "prima facie evidence of the facts appearing on
the certificate." 75 Pa. Cons. Stat. Ann. S 1106(c) (1998).
However, the district court and the parties have overstated
the importance of Latshaw's documentation, while ignoring
the established precedent of Fuentes as well as the overall
context of the seizure.

At the heart of Fuentes is the principle that it is not for
law enforcement officers to decide who is entitled to
possession of property. Rather, it is the domain of the
courts, and citizens are to have a meaningful opportunity to
be heard as to their rights before they are finally deprived
of possession of property. Diehl's curbside courtroom, in
which he decided who was entitled to possession, is
precisely the situation and deprivation of rights to be
avoided. Diehl knew that Abbott had once been married to
Latshaw and had been driving the van for seven years.
Moreover, he had reason to believe -- based on the
statements of Abbott, Harr, and Millstein -- that Abbott
had a bill of sale at home to support his ownership of the
vehicle. In his single-minded reliance on Latshaw's
documentation, Diehl rode roughshod over Fuentes and
ignored the broader context of the seizure which militated
against the legality and reasonableness of his hasty
conclusion that Latshaw, not Abbott, was entitled to
immediate possession of the van. An official familiar with

12
the facts then known and the law then applicable would
have reasonably believed that his conduct was violating
clearly established law. As such, we conclude that the
district court erred when it granted summary judgment in
favor of Diehl on qualified immunity grounds.

We also conclude that an objectively reasonable officer
would have realized the illegality of Lt. George's conduct.
Reasonable police officers should know from the
established precedent of Fuentes that their role is not to be
participants in property deprivations without notice and an
opportunity to be heard. There came a point during this
incident when Lt. George's role changed from the protector
of the peace to the enforcer. The Greensburg Police
Department Supplemental Report indicates that Lt. George
told Millstein that he would be arrested if he did not move
his van, and states that, when Millstein refused to
cooperate, Lt. George "grabbed" him by the arm and "told
[him] that he was under arrest." (App. at 541). In light of
Fuentes, we believe that a reasonable officer in Lt. George's
position would have known that such behavior crossed the
line of permissible conduct. We will thus reverse summary
judgment on qualified immunity grounds as to Lt. George
as well.

III. MOTION FOR LEAVE TO AMEND THE COMPLAINT

The district court denied Abbott leave to amend his
complaint to include an alleged Fourth Amendment
violation based on its findings that the defendants did not
"seize" Abbott's van, and that a Fourth Amendment claim
"would be futile in light of the defendant officers' right to
qualified immunity under the circumstances." We review
the district court's denial of leave to amend a complaint for
abuse of discretion. See Lewis v. Curtis, 671 F.2d 779, 783
(3d Cir. 1982). However, we also recognize that"[i]f a
district court concludes that an amendment is futile based
upon its erroneous view of the law, it abuses its discretion."
R.M. Smith v. National Collegiate Athletic Ass'n, 139 F.3d
180, 190 (3d Cir. 1998). Here, we find fault with both of the
district court's rationales, and we conclude that the court
abused its discretion in denying Abbott leave to amend.

13
First, in light of the Supreme Court's expansive view of
the concept of "seizure" under the Fourth Amendment, as
set forth in Soldal v. Cook County, Ill., 506 U.S. 56, 61-65
(1992) (a Fourth Amendment "seizure" of property "occurs
when `there is some meaningful interference with an
individual's possessory interests in that property,' " (citation
omitted)), it is possible that plaintiff could in fact state a
constitutional claim. Further, the district court's ruling as
to qualified immunity, based as it is on the immunity issue
relating to a due process violation, is not well-founded. The
court opined that because qualified immunity applied to
Abbott's due process claim, it necessarily would apply to
his Fourth Amendment claim as well.3 Yet whether the
defendants are entitled to qualified immunity from a claim
under the Fourteenth Amendment is a wholly different
inquiry from whether the defendants are entitled to
qualified immunity from a Fourth Amendment claim
involving the seizure of personal property. The latter inquiry
involves whether, in light of clearly established Fourth
Amendment law applicable on April 25, 1996, a reasonable
officer in the position of Diehl and Lt. George would have
believed that their conduct violated Abbott's Fourth
Amendment rights. This issue has not even been raised, let
alone analyzed. Leave to amend the complaint should have
been granted.

IV. CONCLUSION

For the foregoing reasons, we will affirm the district
court's order of summary judgment in favor of Officers
Sarsfield and Stafford, but will reverse the grant of
summary judgment as to Constable Diehl and Lt. George.
We will also reverse the district court's dismissal of Abbott's
S 1983 claim against Latshaw, and its denial of leave to
amend the complaint, and we will remand to the district
court for further proceedings consistent with this opinion.
_________________________________________________________________

3. The district court made this determination without the benefit of any
briefing by the parties. In opposing Abbott's motion for leave to amend,
none of the defendants had argued that the amendment was futile
because of the availability of a qualified immunity defense.

14
A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

15