Hensley v. Gassman

• Decision Date: 11 September 2012
• Docket Number: Nos. 11–1071,11–1129.,s. 11–1071
• Parties: Sheila HENSLEY and McClellan Hensley, Sr., Plaintiffs–Appellants/Cross–Appellees (11–1071 & 11–1129), McClellan Hensley, Jr., Plaintiff–Appellee (11–1129), v. Ronald GASSMAN, d/b/a RepoRon, Defendant–Appellee (11–1071), Kevin Scott and Brian Gilbert, Jr., Defendants–Appellees/Cross–Appellants (11–1071 & 11–1129), Howie S. Hanft, Burns Liquidating, LLC f/k/a Burns Recovery, LLC, Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

693 F.3d 681

Sheila HENSLEY and McClellan Hensley, Sr., Plaintiffs–Appellants/Cross–Appellees (11–1071 & 11–1129),

McClellan Hensley, Jr., Plaintiff–Appellee (11–1129),

v.Ronald GASSMAN, d/b/a RepoRon, Defendant–Appellee (11–1071),Kevin Scott and Brian Gilbert, Jr., Defendants–Appellees/Cross–Appellants (11–1071 & 11–1129),Howie S. Hanft, Burns Liquidating, LLC f/k/a Burns Recovery, LLC, Defendants.

Nos. 11–1071, 11–1129.

United States Court of Appeals,Sixth Circuit.

Argued: April 11, 2012.

Decided and Filed: Sept. 11, 2012.

ARGUED:J. Nicholas Bostic, Law Office, Lansing, Michigan, for Appellants/Cross–Appellees. G. Gus Morris, McGraw Morris P.C., Troy, Michigan, for Appellees/Cross–Appellants. ON BRIEF:J. Nicholas Bostic, Law Office, Lansing, Michigan, for Appellants/Cross–Appellees. G. Gus Morris, McGraw Morris P.C., Troy, Michigan, for Appellees/Cross–Appellants.

Before: BATCHELDER, Chief Judge; McKEAGUE, Circuit Judge; and QUIST, District Judge.^*

OPINION

QUIST, District Judge.

This case presents the classic scenario of a repo-man attempting to snatch a creditor's collateral—here a vehicle—under cover of darkness in the middle of the night from a defaulting debtor. Although the repo-man, Ronald Gassman, attained his objective, things did not go quite as smoothly as he had hoped: the possessor of the vehicle verbally and physically opposed the repossession; Gassman had to pull the vehicle with the possessor inside from the driveway into the road; and Deputies Brian Gilbert and Kevin Scott, whom Gassman enlisted to stand by in case of trouble, eventually broke the vehicle's window and physically extracted the possessor so that Gassman could tow the vehicle away. To top it off, Gassman later confirmed what the possessor had told him and the police officers, that is; Gassman had no valid basis to repossess the vehicle in the first place because the creditor had rescinded its repossession order.

The possessors/debtors, McClellan Hensley, Sr., and Sheila Hensley, sued Gassman and Deputies Scott and Gilbert, alleging, among other things, that Deputies Scott and Gilbert violated their Fourth and Fourteenth Amendment rights and that Deputies Scott and Gilbert conspired with Gassman to violate the Hensleys' constitutional rights. The district court granted summary judgment to Deputies Scott and Gilbert on the Fourth Amendment claim on the basis of qualified immunity and granted summary judgment to all Defendants on the conspiracy claim. The Hensleys appeal the district court's grant of summary judgment on both claims. In turn, Deputies Gilbert and Scott cross-appeal the district court's ruling that their conduct violated the Fourth Amendment. For the following reasons, we reverse in part, affirm in part, and dismiss the Deputies' cross-appeal for lack of jurisdiction.

I. Background

Unless otherwise noted, the following facts are undisputed in the record.

On August 13, 2008, at approximately 3:15 a.m., Gassman, who repossessed collateral for lenders in the Ogemaw County, Michigan area, went to the Hensley residence in Prescott, Michigan, to repossess a four-door Buick. Plaintiff McClellan Hensley, Sr. (Hensley Sr.), owned the Buick, but his wife, Sheila Hensley, drove it. After observing the Buick in the driveway at the Hensley residence, Gassman and his helper, Christian Wottrich, drove down the road and called the sheriff's department to request police presence, also known as a “civil stand-by,” during the repossession. Gassman requested police assistance because Hensley Sr.'s conduct during a previous repossession resulted in an assault charge against Hensley Sr., and Gassman was concerned about potential violence.

Deputies Scott and Gilbert were dispatched to assist Gassman. The Deputies met Gassman and followed him to the Hensley residence. When they arrived, the Deputies pulled their patrol car onto the Hensleys' property, and Gassman backed his tow truck into the driveway toward the Buick, which was parked facing the house. At some point, apparently after they arrived, Gassman told the Deputies that he had a repossession order and showed them a file containing some documents. The Deputies did not read the documents.

At the time, Hensley Sr. was away at work, but Sheila and their adult son, McClellan Hensley, Jr. (Hensley Jr.), were at home sleeping. As the Deputies walked toward the Buick, Sheila and Hensley Jr. woke up and went to the door. Sheila and Hensley Jr. stepped outside onto the porch and began telling Gassman and the Deputies that they should not take the Buick. Hensley Jr. stood between the Buick and the tow truck to prevent Gassman from hooking up the Buick. Hensley Jr. shouted at Deputy Gilbert, who was standing nearby, as well as Gassman and Wottrich, telling them that they could not take the vehicle and had to leave the property. Deputy Gilbert responded that they were not going to leave and that Gassman was taking the Buick. Deputy Scott ordered Hensley Jr. to step out of the way. Hensley Jr. moved to the side of the Buick after Gassman bumped him with the tow truck while backing up to the Buick.

While Hensley Jr. was shouting at Deputy Gilbert, Sheila explained to Deputy Scott that her payments were up to date and the car was not supposed to be repossessed. Deputy Scott responded that he did not care and, if that were the case, she could take her paperwork to Gassman or Burns Recovery (Gassman's client) in the morning to sort things out. In spite of Sheila's protest, Deputy Scott said that Gassman still had to take the Buick. In response, Sheila got into the Buick, started it, and locked the doors. She then lowered her window and shouted for Hensley Jr. to get her cell phone from the house. Hensley Jr. retrieved the phone and handed it to Sheila as she put the window down. By this time, Gassman and Wottrich were out of their truck and lying on the ground attempting to hook chains to the Buick's rear axle. At some point, Deputy Scott went to the Buick's driver-side window and ordered Sheila to exit the vehicle. She did not comply. Deputy Scott continued to shout at Sheila and threatened to break the window because Sheila had put the car in drive and was pulling the tow truck, which by then was chained to the car, toward Gassman and Wottrich as they were on the ground next to the rear wheels of the Buick. ¹ When Sheila still refused to get out, Deputy Scott unsuccessfully tried to break the car window with the butt of his handgun.

After Gassman hooked up the Buick and with Sheila still inside, Deputy Scott told Gassman to pull it out of the driveway and into the road. Once the Buick was parked on the road, Deputy Scott ordered Sheila several times to exit the vehicle, but she did not comply.² Deputy Scott then used a hammer to break the passenger-side window, reached inside, and unlocked the doors. Deputy Gilbert then opened the driver-side door and pulled Sheila from the car. Deputy Scott opened the passenger-side car door, began moving items from the back to the front seat of the car, and told Sheila that if she wanted anything from the car, she should “get it out now.” After Sheila and Hensley Jr. retrieved Sheila's personal belongings, Gassman re-hooked the Buick and towed it away.

Lo and behold, later that morning Gassman discovered that Sheila was indeed telling the truth about the payment. He had another tow truck driver return the Buick to the Hensleys.

The Deputies did not arrest Sheila that morning, nor, apparently, did they even mention that she had committed a crime. About a week later, however, on August 21, 2008, they submitted a warrant request to the prosecutor seeking felonious assault charges. On August 28, 2008, a judge signed a felony warrant charging Sheila with two counts of assault with a dangerous weapon in violation of M.C.L. § 750.82, based on her pulling the tow truck toward Gassman and Wottrich while they were on the ground. Following a preliminary examination, Sheila was bound over on two counts of felonious assault and a charge of reckless driving. On May 19, 2010, Sheila pled no contest to both counts of felonious assault and to a misdemeanor charge of attempted aggravated assault.

Sheila, Hensley Sr., and Hensley Jr. sued Gassman and Deputies Gilbert and Scott alleging § 1983 and various state law claims. The Deputies moved for summary judgment on all claims, and Sheila and Hensley Sr. responded with their own summary judgment motion on the § 1983 claims. The district court granted the Deputies' motion on the Fourth Amendment and conspiracy claims and dismissed the state-law claims without prejudice.³ Regarding the Fourth Amendment claim, the district court found that the Deputies' conduct was more than mere presence at the scene, resulting in a constitutional violation. The district court nonetheless concluded that the Deputies are entitled to qualified immunity.

II. Standard of Review

This court reviews a district court's grant of summary judgment de novo. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.2009). A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2010). Because the parties have filed cross-motions for summary judgment, we “must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the nonmoving party.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir.1994).

III. Analysis

A. The Deputies' Cross–Appeal

The Deputies cross-appeal the district court's conclusion that the Deputies' conduct during the repossession constituted state action that resulted in a Fourth Amendment violation. Because the Deputies obtained all the relief they sought from the district court on the Hensleys' Fourth Amendment claim, we lack jurisdiction to consider the Deputies' appeal. “There is generally no appellate jurisdiction when the appellant does not seek a change...