United States Court of Appeals,
Eleventh Circuit.
No. 95-6026.
Roy L. COFIELD, Rita F. Cofield, Plaintiffs-Appellants,
v.
RANDOLPH COUNTY COMMISSION, a governmental entity; Randolph
County Sheriff's Department, a governmental entity, Defendants,
Ricky Hancock, an employee of the Randolph County Commission
and/or Randolph County Sheriff's Department; Danny Belyeu
Chevrolet, Inc.; Danny Belyeu, individually and in his capacity as
President of Danny Belyeu Chevrolet; Scott Evans, an employee of
Danny Belyeu Chevrolet, Inc., and/or Danny Belyeu; Fictitious
Defendant(s), A, B, or C, Defendants-Appellees.
Aug. 6, 1996.
Appeal from the United States District Court for the Middle
District of Alabama. (No. CV-93-D-612-F), Ira De Ment, Judge.
Before TJOFLAT, Chief Judge, BLACK, Circuit Judge and GOODWIN*,
Senior Circuit Judge.
TJOFLAT, Chief Judge:
I.
The controversy in this case stems from an automobile
transaction between a Chevrolet dealership and husband and wife
buyers. The buyers, Roy and Rita Cofield, were purchasing a new
Chevrolet Blazer from Danny Belyeu Chevrolet. As part of the
purchase price, the Cofields traded in to the dealership a car, a
pick-up truck, and a camper trailer. The transaction collapsed
when the camper turned out to be a 1978 model, rather than a 1987
model (which is how the camper was described in the paperwork on
the sale)—and, thus, was of considerably less value than the
*
Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for
the Ninth Circuit, sitting by designation.
dealership expected.1
Employees of the dealership discovered the mistake the same
day the deal was closed. Danny Belyeu, the owner of the
dealership, decided to cancel the transaction by "repossessing" the
Blazer and returning to the Cofields the consideration (the camper,
automobile, and pick-up truck) they had given for it. Belyeu was,
however, concerned that the Cofields might forcibly resist the
repossession of the Blazer. He therefore instructed his employees
to contact the local sheriff's office before proceeding with the
repossession. They did so, and Deputy Sheriff Ricky Hancock
accompanied two Belyeu employees, Scott Evans and John Bullock, to
the Cofield residence.
Bullock's role was to take the Blazer back to the dealership;
Hancock accompanied Evans to the front door of the Cofield house.
The parties dispute whether the Blazer had left the premises before
or after Deputy Hancock rang the Cofields's doorbell. There is no
dispute, however, that the Cofields objected to the removal of the
Blazer from their premises.
Following the dealership's repossession of the Blazer, the
Cofields brought this action against the dealership, Danny Belyeu,
Scott Evans, the Randolph County Commission, the Randolph County
Sheriff's Department, and Deputy Hancock. Their complaint
1
The Cofields claim that they did not represent the camper
as a 1987 model. Nonetheless the transaction included, as part
of the purchase price of the Blazer, the trade in of a 1987
camper. The Cofields do not dispute that the difference in value
between the two models amounted to several thousand dollars.
Whether the Cofields intentionally deceived the dealership is of
no moment.
contained ten counts.2 Only a portion of count I, brought against
Deputy Hancock, is at issue in this appeal. In that portion, the
Cofields sought money damages against Hancock in his individual
capacity under 42 U.S.C. § 1983, alleging violations of the Fourth
and Fourteenth Amendments to the United States Constitution.
Specifically, they alleged that Hancock effected a "seizure" of
their automobile in violation of the Fourth Amendment and deprived
them of "procedural due process" in violation of the Fourteenth
Amendment.3
Deputy Hancock's answer plead the defense of qualified
immunity with respect to the constitutional claims. The district
court granted Hancock summary judgment on that ground and dismissed
count I. Because this left no federal claims pending against any
defendant, the court dismissed without prejudice the Cofields'
pendent state law claims against Hancock and the other defendants.
The Cofields appeal the granting of summary judgment on the
2
We refer to the Cofields' amended complaint as their
"complaint." In count I, which pertained solely to Deputy
Hancock, they alleged violations of the Fourth and Fourteenth
Amendments to the United States Constitution. In count V, which
also pertained solely to Deputy Hancock, they alleged "failure to
supervise" in violation of Alabama law. In count II, which
applied only to Danny Belyeu Chevrolet, they alleged breach of
contract in violation of Alabama law. In counts III, IV, VI,
VII, and IX, which applied to all of the defendants, they alleged
trespass, negligence, conversion, outrage, and conspiracy, all in
violation of Alabama law. Finally, count VIII alleged a claim
against all the defendants under Ala.Code 6-5-370, which provides
a civil cause of action for acts that also constitute a felony.
3
Count I also alleged that Hancock deprived the Cofields of
the equal protection of the laws in violation of the Fourteenth
Amendment. The district court granted Hancock summary judgment
on that claim as well as the claims under the Fourth Amendment
and the Due Process Clause. In this appeal, the Cofields do not
contest the court's disposition of their equal protection claim.
Fourth Amendment and Due Process claims. We review the district
court's grant of summary judgment de novo. See Reserve, Ltd. v.
Town of Longboat Key, 17 F.3d 1374, 1377 (11th Cir.1994), cert.
denied, --- U.S. ----, 115 S.Ct. 729, 130 L.Ed.2d 633 (1995).
II.
"The law attending qualified immunity is well-settled."
Leeks v. Cunningham, 997 F.2d 1330, 1333 (11th Cir.1993).
Government officials enjoy immunity from civil damages provided
"their conduct does not violate clearly established constitutional
or statutory rights of which a reasonable person should have
known." Id., citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 2728, 73 L.Ed.2d 396 (1982). "For a "right' to be
clearly established, "[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that
what he is doing violates that right.' " Rodgers v. Horsley, 39
F.3d 308, 310 (11th Cir.1994), citing Anderson v. Creighton, 483
U.S. 635, 639-40, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).
Appellants theorize that the taking of the Blazer was clearly
wrongful insofar as it contravened state law (i.e., that the
dealership was not entitled to repossess the vehicle because the
appellants had not defaulted under the sales contract). Moreover,
they claim, Hancock knew the dealership was not entitled to
repossess, he knew the dealership was nevertheless planning to
repossess, and he helped them do so. They argue that Hancock
thereby effected a "seizure" of their property in violation of the
Fourth Amendment. Additionally, they argue, his participation in
the taking converted what would otherwise have been an instance of
"self-help repossession" into a levying of property by a law
enforcement officer without a writ of attachment, in violation of
the procedural component of the Due Process Clause.
Appellant's argument fails at the first step. The Alabama
Code provides that "[u]nless otherwise agreed a secured party has
on default the right to take possession of the collateral. In
taking possession a secured party may proceed without judicial
process if this can be done without breach of the peace...."
Ala.Code § 7-9-503 (1993). The Code does not define the word
"default," leaving this to the parties to the security agreement
and to the common law. See 4 James J. White & Robert S. Summers,
Uniform Commercial Code § 34-2 (4th ed. 1995). In the absence of
a particular definition adopted by the parties, the ordinary
meaning of "default" is "failure to pay." See 9A Ronald A.
Anderson, Uniform Commercial Code § 9-501:27 (3d ed. rev. 1994).
We think it self-evident that failure of consideration, which is
what occurred in this case, constitutes failure to pay.
Appellants point out that the "Sales Contract," which
contains the standard default and repossession clauses, does not
itself include any representation (by them) as to the age of the
camper, and that the "Vehicle Invoice," which does contain such a
representation, does not include any default or repossession
clauses. The two documents, they argue, are wholly separate. We
do not address the merits of this argument. Failure of
consideration can constitute a default and can thereby entitle a
creditor to repossess the collateral. Accordingly, it could not
have been "clear" to Deputy Hancock that the repossession was
"wrongful."4 As noted, then, appellants' argument fails at the
first step; Hancock could not have known the taking of the Blazer
was wrongful.
Appellants also suggest that a deputy sheriff simply cannot be
present during an instance of self-help repossession. Even if a
repossession is lawful, they argue, if a deputy sheriff is present,
that repossession becomes a "seizure" by the state. Moreover, they
contend, if he is present the repossession is no longer an instance
of "self help" and, accordingly, must be preceded by judicial
process. Appellants have pointed us to no cases, and we have found
no cases, that support either proposition. Soldal v. Cook County,
506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992), on which
appellants rely heavily, is readily distinguishable. In Soldal,
deputy sheriffs assisted in a forcible eviction that was patently
unlawful.5 Id. at 56-60, 113 S.Ct. at 541-42.
Finally, we think it plain that an officer's mere presence
during a lawful repossession is of no moment. Indeed, arguably an
officer's "mere presence to prevent a breach of the peace" would
4
Appellants point to the fact that early in the day
following the repossession, Deputy Hancock returned to their
house and filled out a "stolen vehicle report" for the vehicle.
This, they contend, supports the proposition that he knew the
taking was wrongful. We are not persuaded. The Cofields had
argued strenuously—to Hancock and others—that they were not in
default. That Deputy Hancock obligingly filled out a stolen
vehicle report is of no moment.
5
Furthermore, even were Soldal on point, it was handed down
well after the events that gave rise to this lawsuit. Thus, even
if it established that a deputy sheriff's presence at a lawful
repossession somehow transforms that repossession into a Fourth
Amendment "seizure," this proposition was not "clearly
established" for qualified immunity purposes when the
repossession in this case occurred.
not even constitute state action sufficient to give the court
subject matter jurisdiction. See Booker v. City of Atlanta, 776
F.2d 272, 274 (11th Cir.1985). While our cases suggest that state
action might be present if an officer were to facilitate a
repossession, see id., see also Menchaca v. Chrysler Credit Corp.,
613 F.2d 507, 513 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct.
358, 66 L.Ed.2d 217 (1980), the Cofields's own testimony places the
Blazer off, or exiting, the premises by the time they reached their
front door to contest the repossession. The implication is that
the repossession had been completed before the Cofields had any
contact with Hancock.6
III.
It is anything but clear that the repossession effected by
Danny Belyeu Chevrolet was unlawful. Moreover, according to
appellant's own version of the facts, the repossession appears to
have been completed prior to Hancock's involvement. Finally, we
have found no precedent clearly holding that an officer's mere
presence at (or after) a lawful instance of self-help repossession
can amount to a violation of the Fourth and Fourteenth Amendments.
Thus we conclude that Hancock could not have known his actions
might violate anyone's constitutional rights. He is entitled to
qualified immunity.
AFFIRMED.
6
Moreover, of course, in Booker and Soldal we were concerned
only with the requisite state action to establish subject matter
jurisdiction. Neither case supports the theories of liability
advanced by the Cofields—i.e., that an officer's presence or aid
at a repossession effects a Fourth Amendment "seizure" by the
state or that his presence or aid transforms that repossession
into a "levying" of property.
GOODWIN, Senior Circuit Judge, dissenting:
When reviewing a summary judgment, we must resolve all
reasonable inferences of fact in favor of the nonmoving party.
Goddard v. Urrea, 847 F.2d 765, 767 (11th Cir.1988). Because I
believe a question of material fact exists, (whether Hancock was
there merely to "keep the peace"); and because the law was clearly
established that a sheriff without a court order could not lawfully
participate in the seizure of private property, I respectfully
dissent.
The majority concludes that Hancock could not have assisted
with the repossession because the Blazer was already exiting the
Cofields' property at the time the Cofields reached their front
door. See majority opinion at ----. This conclusion does not
account for the assistance Hancock had already provided through his
agreement to accompany the Belyeu Chevrolet employees to the
Cofield house. Without the security provided by Hancock's
presence, the Belyeu employees may not have been emboldened to
attempt the repossession.
Hancock claims that his assistance was solely for the purpose
of "keeping the peace," but that claim is contradicted by the
testimony of Evans, who solicited Hancock's aid. Evans testified
that he never told Hancock he was fearful of the Cofields, nor did
he indicate that he wanted Hancock's presence for security
purposes.
Moreover, even if Hancock had not yet assisted the
repossession when the Cofields opened their door, the Cofields
testified that Roy Cofield attempted to go after the Blazer as it
was being driven off. When he did so, Hancock informed Roy that if
he interfered with the repossession he would be arrested. A
reasonable fact finder could conclude from this evidence that
Hancock did not just "keep the peace," but in fact assisted with
the repossession.
If Hancock in fact participated in the repossession, his
actions violated clearly established law. "The right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated...."
Amendment 4, Constitution of the United States.
The Supreme Court clarified the purpose of the Amendment in
United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656,
80 L.Ed.2d 85 (1984):
This text protects two types of expectations, one involving
"searches," the other "seizures." A "search" occurs when an
expectation of privacy that society is prepared to consider
reasonable is infringed. A "seizure" of property occurs when
there is some meaningful interference with an individual's
possessory interests in that property.
The district court found Jacobsen inapplicable as it was a criminal
case dealing with the seizure of cocaine, and the Cofields' seizure
was a private taking of personal property. However, the Fourth
Amendment protects "the people," not exclusively "the criminally
charged."
The defendants argued that the application of the Fourth
Amendment to cases of this kind was not clearly established law
until confirmed by the Supreme Court's opinion in Soldal v. Cook
County, Ill., 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992).
In Soldal, a landlord wished to remove a tenant's trailer from the
trailer park for failure to pay rent. The landlord did not wish to
wait for the necessary eviction papers, and asked the sheriff's
department to assist in a "self-help" eviction. The sheriff
accompanied the landlord to the park, and allowed the trailer to be
removed from the premises. The Court held that a "seizure" had
occurred within the meaning of the Fourth Amendment, remanding the
case to determine if the seizure was "reasonable."
It matters not that Soldal was decided after the seizure in
this case. We need not wait for the Supreme Court explicitly to
declare a law "clearly established" before finding its violation
unprotected by qualified immunity. Soldal did not claim to be
fashioning new law. To the contrary, the Court stated that its
holding fell within a long line of precedent, including Jacobsen,
466 U.S. 109, 104 S.Ct. 1652. While recognizing that a new
emphasis had been placed on the amendment's protection of privacy,
the Court stated "[t]here was no suggestion that this shift in
emphasis had snuffed out the previously recognized protection for
property under the Fourth Amendment." Soldal, 506 U.S. at 64, 113
S.Ct. at 545.
The majority seeks to distinguish Soldal because it involved
a "patently unlawful" eviction. See majority opin. at ----.
However, the comparative lawlessness of the two seizures is
elusive. In both cases, legitimate civil cause existed for the
seizures, but the requisite judicial process was lacking.
The availability of "self-help" repossession in the present
case is of no consequence. Belyeu's apparently friendly relations
with the sheriff permitted an "self-help" exercise to take on the
character of augmented self-help. The relevant law provides "In
taking possession [of collateral] a secured party may proceed
without judicial process if this can be done without breach of the
peace...." Ala.Code § 7-9-503 (1993) (emphasis added). Once the
presence of law enforcement officers is necessary, "self-help" no
longer applies and judicial process is required.
Assuming the Cofields' allegations are true, an issue for the
trier of fact to decide, Hancock's assistance in the repossession
of the Blazer violated clearly established Fourth Amendment law.
Hence, Hancock's actions are not, as a matter of law, protected by
qualified immunity.
I respectfully dissent.