Dixon v. Lowery

• Decision Date: 16 August 2002
• Docket Number: No. 01-1632.,No. 01-1491.,01-1491.,01-1632.
• Citation: 302 F.3d 857
• Parties: Kurt DIXON; Big Mamou, Inc., Plaintiffs/Appellees, v. Mike LOWERY, individually and in his official capacity; Tim Calhoun, individually and in his official capacity, Defendants/Appellants, Louie Caudell, in his official capacity as Chief of the Little Rock Police Department; City of Little Rock, Arkansas, Defendants. Kurt Dixon; Big Mamou, Inc., Plaintiffs/Appellants, v. Mike Lowery, individually and in his official capacity; Tim Calhoun, individually and in his official capacity, Louie Caudell, in his official capacity as Chief of the Little Rock Police Department, City of Little Rock, Arkansas, Defendants/Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

302 F.3d 857

Kurt DIXON; Big Mamou, Inc., Plaintiffs/Appellees, v. Mike LOWERY, individually and in his official capacity; Tim Calhoun, individually and in his official capacity, Defendants/Appellants, Louie Caudell, in his official capacity as Chief of the Little Rock Police Department; City of Little Rock, Arkansas, Defendants.

Kurt Dixon; Big Mamou, Inc., Plaintiffs/Appellants, v. Mike Lowery, individually and in his official capacity; Tim Calhoun, individually and in his official capacity, Louie Caudell, in his official capacity as Chief of the Little Rock Police Department, City of Little Rock, Arkansas, Defendants/Appellees.

No. 01-1491.

No. 01-1632.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2001.

Filed: August 16, 2002.

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Judy K. Mason, argued, Little Rock, AR, for appellant.

Holly E. Isaac, argued, Little Rock, AR, for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.

BEAM, Circuit Judge.

Mike Lowery and Tim Calhoun (appellants) appeal from the district court's denial of their motion for summary judgment. They argue that they are entitled to qualified immunity from suit by Kurt Dixon and the Big Mamou, Inc. (collectively referred to as "Dixon") because they did not violate a clearly established constitutional right when they helped a private party acquire possession of the Big Mamou — a restaurant that had been owned and operated by Dixon — and that their acts did not constitute an unreasonable seizure of property under color of state law. Dixon cross-appeals the district court's grant of summary judgment in favor of the City of Little Rock (the City) and its chief of police. Among other contentions, Dixon argues that the City and police chief ratified the acts of the law enforcement officers when they allowed the officers to remain at the Big Mamou in the face of his complaints that he was being improperly deprived of the property. We affirm in part and remand in part.

I. BACKGROUND

Dixon operated the Big Mamou restaurant in Little Rock, Arkansas. Aaron Omar (Omar) approached Dixon about consolidating the Big Mamou with a daiquiri bar chain. Under this arrangement, Dixon would own forty-nine percent of the new establishment and would be paid a salary, and remodeling would be done in a manner that would not interfere with the restaurant's operations. Dixon was to continue operating the Big Mamou at all times. On the condition that Omar would present Dixon with proof of his forty-nine percent ownership and a note in the amount of $25,000 in order to close the deal, Dixon signed an asset purchase and sale agreement with the closing date left blank, a bill of sale, an assignment of lease, and a letter authorizing Omar's company to use the Big Mamou's business and liquor licenses. Omar and his business partner told Dixon they would send him a copy of the paperwork and advise him of the closing date, but failed to do so. Dixon repeatedly demanded that Omar provide him with a copy of the preliminary and executed documentation, but Omar refused.

Omar later pressured one of Dixon's employees into giving him a key to the Big Mamou. Dixon still had not received documentation of his ownership or consideration for the transaction when he learned that Omar had obtained a key. Consequently, Dixon changed the locks to the restaurant. Omar learned that his key to the Big Mamou no longer worked and confronted Dixon. Dixon demanded the documentation to close the transaction, and Omar threatened to tear up all existing paperwork and then left.

Omar subsequently sought the assistance of his friend, Harold Allison, who was with the enforcement division of Arkansas Alcohol Beverage Control, and together they contacted Captain Lowery at police headquarters. According to Lowery, Omar said that "he needed to hire some off-duty officers to go out [to the Big Mamou] and stand by while the locksmith changed the locks, and then he wanted the officers to secure the business because he had valuable equipment in there and he was going to close the business and renovate it." Lowery accepted Omar's offer of employment but did not further investigate Omar. Lowery approved his own off-duty employment and that of Sergeant Calhoun.¹

Lowery and Calhoun proceeded to the Big Mamou in city police cars and were the first to arrive at a parking lot near the Big Mamou. When Omar and a locksmith arrived, Lowery and Calhoun, wearing their uniforms, badges, and side arms, accompanied them to the restaurant. Officers asked employees of the Big Mamou how many exits were in the restaurant and where they were located. Lowery and Calhoun stood watch while the locksmith changed the locks. Lowery also stood watch while one of Omar's business associates placed a closed sign on the restaurant's door. Calhoun accompanied Omar, Omar's business associate, and their attorney into the restaurant. When an employee went into the kitchen to telephone Dixon, an officer followed the employee. Lowery and Calhoun told employees that they needed to leave the restaurant. They also stood watch while the workers gathered their belongings and left. Officers escorted employees to the front door of the restaurant and locked the door behind them. Some of the officers stayed inside. Lowery and Calhoun took possession of the keys to the restaurant when Omar left. After Omar departed, Dixon and his family arrived and found the door was locked. Lowery and Calhoun allowed them inside for about ten minutes. All of Dixon's business records remained inside the restaurant and, under the officers' watch, fixtures and personal property were removed.

Dixon filed a complaint with the Internal Affairs Division of the Little Rock Police Department and he and his employees had given statements to Internal Affairs by December 11, 1998. On December 17, 1998, Omar gave a statement to the Internal Affairs Division, revealing that, under the contract between himself and Dixon, he owed Dixon $25,000. Lowery and Calhoun, along with other Little Rock law enforcement officers, maintained their "off-duty" employment at the Big Mamou until December 31, 1998, when Dixon filed suit and the chief of police told them to terminate their work at the Big Mamou.

II. DISCUSSION

A. Standards

Summary judgment is appropriate if the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact regarding the qualified immunity defense and that the moving party is entitled to judgment as a matter of law. Walden v. Carmack, 156 F.3d 861, 868 (8th Cir.1998). More specifically, we must determine if appellants have established that there are no genuine issues of material fact as to whether Dixon asserted a violation of a federal right and whether that right was clearly established. Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). When various courts have determined that certain factually similar conduct is a constitutional violation, the constitutional right to be protected against such conduct is considered clearly established even if courts have not agreed upon a precise formulation of the violation. Id. at 2157.

B. Constitutional Violations and Reasonableness

Dixon has asserted a violation of his constitutional right to be free from unreasonable search and seizure under the Fourth and Fourteenth Amendments. He claims that the officers unlawfully seized his real and personal property and remained in possession of that property for some time after the initial seizure.

Among other safeguards, the Fourth Amendment protects against unreasonable seizures of property. U.S. Const. amend. IV; Soldal v. Cook County, 506 U.S. 56, 61-62, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). A seizure of property occurs when "`there is some meaningful interference with an individual's possessory interests in that property.'" Id. at 61, 113 S.Ct. 538 (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). It is well settled that a seizure carried out without judicial authorization is per se unreasonable unless it falls within a well-defined exception to this requirement. E.g., Coolidge v. New Hampshire, 403 U.S. 443, 474, 484, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Lesher v. Reed, 12 F.3d 148, 151 (8th Cir.1994); United States v. South Half of Lot 7 and Lot 8. Block 14, 876 F.2d 1362, 1371 (8th Cir.1989); see also Soldal, 506 U.S. at 71, 113 S.Ct. 538 (stating that, had officers acted pursuant to a court order in seizing a mobile home, "a showing of unreasonableness ... would be a laborious task indeed," and that "had the ejection ... properly awaited the state court's judgment it [was] quite unlikely that the federal court would have been bothered with a § 1983 action alleging a Fourth Amendment violation"); Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (stating that, under the Fourth Amendment, "`one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant'") (quoting Camara v. Municipal Court of San Francisco, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)). Absent exigent circumstances or a valid consent, prior to the state assisting in depriving a party of possession, a neutral officer or magistrate must determine whether there is probable cause to believe that the claiming party is entitled to the relief requested. Soldal, 506 U.S. at 66, 113 S.Ct. 538; see also Mitchell v. W.T. Grant Co., 416 U.S. 600, 625, 94 S.Ct....