Harris v. City of Roseburg

• Decision Date: 28 December 1981
• Docket Number: No. 80-3027,80-3027
• Citation: 65 A.L.R. Fed. 792,664 F.2d 1121
• Parties: Jack HARRIS, II, Plaintiff-Appellant, v. CITY OF ROSEBURG, municipal corporation, John Miller and Les Bergman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1121

664 F.2d 1121

65 A.L.R.Fed. 792

Jack HARRIS, II, Plaintiff-Appellant, v. CITY OF ROSEBURG, municipal corporation, John Miller and Les Bergman, Defendants-Appellees.

No. 80-3027.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 9, 1981.

Decided Dec. 28, 1981.

James A. Arneson, Arneson & Wales, Roseburg, Or., for plaintiff-appellant.

Robert E. Franz, Jr., Eugene, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before SCHROEDER and NELSON, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

Defendant-appellee Bergman, a police officer of the City of Roseburg, was present at an illegal repossession by a creditor of a semi-tractor purchased under contract by plaintiff-appellant, Jack Harris. The district court granted summary judgment in favor of Bergman and the City of Roseburg, holding that Bergman could not be held liable for an alleged deprivation of appellant's constitutional rights under 42 U.S.C. § 1983, because the officer never had actual or constructive possession of the semi-tractor. Although we conclude that the court incorrectly interpreted § 1983, we affirm on the ground that Bergman was immune from liability because he acted in good faith and with a reasonable belief that his conduct was lawful.

I. Factual Background

Harris purchased a semi-tractor on contract from Lee Cantwell, who retained a security interest. Harris was delinquent in his payments, and in December, 1977 Cantwell's attorney wrote Harris threatening to institute legal proceedings. Although Harris paid Cantwell $3,000 over the next four months, Cantwell decided to repossess the semi-tractor in April, 1978.

Fearing violence if he attempted to repossess the vehicle alone, Cantwell asked the Roseburg City Police Department to provide an officer to "stand-by" while Cantwell repossessed the vehicle. Cantwell had been informed by a repossession agency that he would violate the contract if the police participated in the repossession. He conveyed this information to Bergman, who responded by telling Cantwell that the police "could not participate in it, no way, shape or form." Officers Bergman and Miller of the Roseburg City Police accompanied Cantwell and his wife to Harris's residence. On the way, Bergman explained to Miller that Cantwell was repossessing a truck because of a default on a contract and that their duty was to stop a fight if one should occur.

At the Harris residence, the semi-tractor was parked on the street, attached to a trailer. Cantwell rolled down the landing gear in preparation for unhooking it. He then opened the door, got into the semi-tractor, and started the engine with a key he had with him. Mrs. Cantwell got into the tractor, sat behind the steering wheel, and kept the engine running while Cantwell disconnected the trailer. As Cantwell was standing in the gutter unhooking the brake hoses, Harris came out of his house and confronted him. Cantwell informed Harris that he was repossessing the tractor because Harris was behind in payments.

According to Harris, Bergman then stepped in and told Harris to "stand back or get away." In response to Harris's demand as to what was occurring, Bergman said that Cantwell was there to repossess the truck and that Bergman "came out to stand by." A verbal confrontation between Bergman and Harris allegedly followed, with Bergman finally telling Cantwell to get the "papers" which showed that Cantwell had a right to repossess. Harris, fearing in his rage that he might assault Bergman, went back to his house. While he was in the house, the repossession was completed, and Cantwell was driving off with the semi-tractor as Harris came out a second time. The "papers" referred to by Bergman was a copy of the letter written by Cantwell's attorney to Harris in December of 1977.

II. Court Proceedings

Harris brought a state court action against Cantwell for conversion of the semi-tractor, contending that Cantwell, by accepting late payments, had waived his right to strict enforcement of the contract and had breached the peace when he repossessed the vehicle with the assistance of the city police. The jury returned a verdict in favor of Harris which was affirmed by the Oregon Court of Appeals. Harris v. Cantwell, 47 Or.App. 211, 614 P.2d 124 (1980).

Harris then filed this action, alleging that Bergman, Miller and the City of Roseburg had violated 42 U.S.C. § 1983 and deprived Harris of his Fourteenth Amendment right to due process of law when they assisted Cantwell in the repossession. The parties stipulated that a United States magistrate could preside over all of the proceedings.

Following discovery all of the parties moved for summary judgment. The court denied plaintiff's motion, granted the motion of defendant Miller, held Bergman's motion in abeyance "until plaintiff has had an opportunity to further brief the legal issues," and denied the City of Roseburg's motion, with leave to renew its motion after further discovery.

In subsequent findings and recommendations the magistrate concluded that § 1983 is not violated unless there is a "taking" of property by the state, amounting to actual or constructive possession by its officers. Adopting the magistrate's recommendation, the court granted Bergman's motion for summary judgment. Subsequently the court granted summary judgment in favor of the city, and final judgment was entered dismissing the action as to all of the defendants. Harris has appealed from this judgment, and claims error in the grant of summary judgment in favor of Bergman and the City of Roseburg. ¹

Three issues are presented on appeal: (1) whether the court erred in holding that a police officer cannot be liable under 42 U.S.C. § 1983 for a deprivation of property unless the officer acquired actual or constructive possession of the property; (2) whether Cantwell took possession of the tractor before Harris protested; and (3) whether Bergman and the City of Roseburg are entitled to summary judgment on the ground that there is no genuine issue as to any material fact that Bergman acted in good faith and with a reasonable belief that his conduct was lawful, and Bergman and the City accordingly were immune from liability under § 1983.

III. 42 U.S.C. § 1983

Liability under § 1983 ² can be established by showing that the defendants either personally participated in a deprivation of the plaintiff's rights, or caused such a deprivation to occur. Arnold v. International Business Machines Corp., 637 F.2d 1350, 1355 (9 Cir. 1981). ³ The statute is violated when a person, acting under color of the power vested in him as a government officer, proximately causes a citizen of the United States to be deprived of any rights, privileges, or immunities secured by the Constitution or laws. Id. at 1355. ⁴ Two questions are therefore presented: (1) was the plaintiff deprived of a right, privilege or immunity secured by the Constitution or laws of the United States, and if so, (2) was the deprivation caused by the defendants while they were acting under color of state law?

It is clear from Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), that a debtor has a right to minimal due process (i. e., notice and prior hearing) before a state may assist a secured creditor in repossessing the debtor's property. In addition, Westerman v. Oregon Automobile Credit Corporation, 168 Or. 216, 122 P.2d 435 (1942) ⁵ established three rules relating to the repossession of an automobile: (1) a creditor who has a right to immediate possession may retake the property if he can do so peaceably; ⁶ (2) once he has done so, the creditor may use reasonable force to defend his possession; (3) "but if the buyer objects and protests against such retaking, and obstructs the seller in doing so, it is the duty of the seller to proceed no further in such attempted retaking, but to resort to legal process to enforce his right of repossession." 122 P.2d at 443. In its discussion of the third rule, the court noted:

(I)f the buyer objects and protests and obstructs (emphasis in original) the seller it becomes the duty of the latter to desist. If the mortgagor or conditional buyer resists and places his body in a position which obstructs the mortgagee or vendor so that in order to take the chattel he must necessarily apply force, however slight, to the person then he must desist and resort to legal process.

Id. at 443. (Emphasis added.)

In Stone Machinery Co. v. Kessler, 1 Wash.App. 750, 463 P.2d 651 (1970), the Washington court applied Oregon law in an action to repossess a tractor, in which the defendant cross-complained for wrongful and malicious repossession. The creditor's agent, fearing violence, had requested the sheriff of Wallowa County, Oregon, to accompany him. The court held that the sheriff's conduct constituted direct participation ⁷ in the repossession and thereby rendered it illegal. In reaching this conclusion the court noted that the defendant had a right to obstruct, by all lawful and reasonable means, any attempt to forcibly repossess the tractor, and had the defendant offered any physical resistance both the sheriff and plaintiff's agents had a duty to retreat. The court continued:

However, confronted by the sheriff, who announced his intention to participate in the repossession, it was not necessary for Kessler to either threaten violence or offer physical resistance. As stated by the court in Roberts v. Speck, 169 Wash. 613, at 616, 14 P.2d 33 at 34 (1932), citing from Jones on Chattel Mortgages (4th ed.), § 705:

The mortgagee becomes a trespasser by going upon the premises of the mortgagor, accompanied by a deputy sheriff who has no legal process, but claims to act colore officii, and taking possession without the active resistance of the mortgagor. To...