Marcus v. McCollum

• Citation: 394 F.3d 813
• Decision Date: 30 December 2004
• Docket Number: No. 03-6148.,03-6148.
• Parties: Mike MARCUS; Diana Marcus; Nicholas Shiel, a.k.a. Nicholas Marcus, a minor child, by and through his mother Diana Marcus, Plaintiffs-Appellants, v. Carl McCOLLUM, Swope 24 Hr. Wrecker Service, LLC, an Oklahoma Limited Liability Company; Jennifer Thomas; Mason Wilson; David Powell; Kent Borcherding, Defendants-Appellees, and City of Shawnee, Oklahoma, a Municipal corporation, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

394 F.3d 813

Mike MARCUS; Diana Marcus; Nicholas Shiel, a.k.a. Nicholas Marcus, a minor child, by and through his mother Diana Marcus, Plaintiffs-Appellants, v. Carl McCOLLUM, Swope 24 Hr. Wrecker Service, LLC, an Oklahoma Limited Liability Company; Jennifer Thomas; Mason Wilson; David Powell; Kent Borcherding, Defendants-Appellees, and City of Shawnee, Oklahoma, a Municipal corporation, Defendant.

No. 03-6148.

United States Court of Appeals, Tenth Circuit.

December 30, 2004.

COPYRIGHT MATERIAL OMITTED

Joseph E. McKimmey, Shawnee, OK, for Plaintiffs-Appellants.

David W. Kirk, Dan M. Peters, Carter & Kirk, P.C., Oklahoma City, OK, for Defendants-Appellees.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and HENRY, Circuit Judge.

SEYMOUR, Circuit Judge.

Carl McCollum, a creditor of plaintiff Diana Marcus, towed away an automobile parked in plaintiffs' driveway. Plaintiffs filed this lawsuit asserting a civil rights claim under 42 U.S.C. § 1983 against Mr. McCollum, the tow truck service, and police officers present during the incident. The complaint alleges violations of plaintiffs' Fourth Amendment right to freedom from unreasonable search and seizure and Fourteenth Amendment right to procedural due process, as well as several state tort claims.

The district court entered summary judgment in favor of the police officers on plaintiffs' federal civil rights claim based on its conclusion that the officers' conduct did not amount to state action as required for a viable § 1983 claim and that, in any event, the officers were entitled to qualified immunity. We reverse based on our determination that disputed, material facts preclude both entry of summary judgment and the grant of qualified immunity.¹

I.

Mrs. Marcus borrowed money from Mr. McCollum in December 2001 and gave him the title to an automobile in January 2002. On February 22, 2002, Mr. McCollum, accompanied by a driver from Swope 24-Hr. Wrecker Service, L.L.C., approached the Marcus home and noticed defendant Mason Wilson, an on-duty Shawnee police officer, parked across the street in a school parking lot. It is undisputed that Mr. McCollum told Officer Wilson he was going to repossess a car and wanted Officer Wilson to be aware of the situation.² Mr. McCollum did not have the title to a car with him, but he had a "piece of paper" with a vehicle identification number (VIN) matching that of a 1978 Pontiac Firebird. Aplt. app., tab 4(D) at 16.

Mr. McCollum and the tow truck operator then began the process of towing the Pontiac from the Marcuses' driveway. According to plaintiffs, the Pontiac was owned by Mrs. Marcus' husband, plaintiff Mike Marcus, and was not the collateral securing Mr. McCollum's loan. Mr. Marcus was not home, but Mrs. Marcus and her minor son, plaintiff Nicholas Shiel, were there. They noticed Mr. McCollum's activities, ran outside, and began arguing loudly with him. They told him he had no right to the Pontiac, and that he had title to "a car in Bethel." Id.

Officer Wilson called for back-up assistance in the developing dispute and drove his patrol car over to the Marcuses' driveway. It is disputed whether Officer Wilson was alerted by the confrontation and drove over on his own initiative or did so because Mr. McCollum beckoned him. See id., tab 4(C) at 2 (Officer Wilson's affidavit, stating he decided to step in when he observed a heated argument); tab 4(D) at 16 (Mr. McCollum's deposition testimony, stating he waved for Officer Wilson to come over); tab 6(A) at 20 (Mrs. Marcus' deposition testimony, stating that Mr. McCollum raised his hand and Officer Wilson came over). Officer Wilson was soon joined by three other officers, defendants Jennifer Thomas, David Powell, and Kent Borcherding.

Mrs. Marcus and Nicholas asserted to the officers that Mr. McCollum had no legal interest in the automobile. Although the officers may have looked at Mr. McCollum's "piece of paper," they did not ask for further documentation of his ownership interest. Id., tab 4(D) at 16. Plaintiffs continued arguing with Mr. McCollum and also made several attempts to unhook the car from the wrecker. At some point, according to plaintiffs, Officer Wilson poked Nicholas "several times in the chest with sufficient force to knock [him] backwards." Id., tab 6(G) at 2.

Although the officers stated that repossession was a civil matter in which the police could not be involved, they also told Mrs. Marcus and Nicholas to stop their interference, advising "let them do what they're going to do and take it up in small claims court." Id., tab 6(A) at 21. Mrs. Marcus and Nicholas contend Officer Wilson stated that if the situation escalated, "someone" would be going to jail. They claim that an officer told them "for our best bet, we should keep our mouth shut, go back in the house or we would indeed go to jail that day." Id. at 22. Because they took these statements as threats directed toward them, they followed the officers' instructions and allowed the car to be towed away. Id. at 24. Defendants assert that no one was threatened with force or arrest. Id., tab 4(C) at 3. Officer Wilson stayed until the wrecker drove away; the other officers left when the situation seemed to be under control.

In the wake of the incident, the Marcus family brought this action in state court against Mr. McCollum, the wrecker service, the police officers, and the City of Shawnee (the City). In their federal civil rights claim arising under 42 U.S.C. § 1983, plaintiffs asserted that the police officers "entered upon the property of the Plaintiff and aided a certain Carl McCollum and the employee of SWOPE 24 HR. WRECKER SERVICE, L.L.C., An Oklahoma Limited Liability Company, in the unlawful taking of a certain 1978 Pontiac Firebird Automobile belonging to the Plaintiff, MIKE MARCUS," id., tab 1 at 3, and "used the threat of force and threats to have DIANA MARCUS and her son NICHOLAS SHIEL, a/k/a NICHOLAS MARCUS, taken into custody if they did not yield to the authority of the police in the taking of said property," id.; all in violation of their Fourth and Fourteenth Amendment rights to due process and freedom from unreasonable search and seizure, id. at 5.

The City removed the case to federal district court and defendants moved for summary judgment. The district court concluded the officers' conduct did not amount to the state action required for a viable § 1983 claim and, alternatively, that the officers were entitled to qualified immunity. The court entered summary judgment in favor of the police officers and Mr. McCollum on the § 1983 claim and remanded the remainder of the case to state court. In this appeal, plaintiffs continue to pursue their § 1983 claim against the police officers.³

II.

A § 1983 claim must be based on a right secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. Plaintiffs' asserted constitutional interests are well-established. Under the Fourteenth Amendment, procedural due process requires notice and a pre-deprivation hearing before property interests are negatively affected by governmental actors. See Fuentes v. Shevin, 407 U.S. 67, 80-82, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The Fourth Amendment prohibition against unreasonable search and seizure is implicated "when `there is some meaningful interference with an individual's possessory interests in [his] property.'" Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)).

The language of the Fourteenth Amendment establishes "an `essential dichotomy' between governmental action, which is subject to scrutiny under the Fourteenth Amendment, and private conduct, which `however discriminatory or wrongful,' is not subject to the Fourteenth Amendment prohibitions." Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1446 (10th Cir.1995) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 349, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)) (further quotation omitted). Governmental defendants

normally can be held responsible for a private decision only when [they have] exercised coercive power or [have] provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment.

Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (citations omitted).

Although we have not examined the state-action issue in the context of police officer involvement with a private party's repossession of property, several other circuits have.⁴ These circuits are in agreement as to the law: officers are not state actors during a private repossession if they act only to keep the peace, but they cross the line if they affirmatively intervene to aid the repossessor. The Second Circuit has articulated this continuum as follows: "[w]hen an officer begins to take a more active hand in the repossession, and as such involvement becomes increasingly critical, a point may be reached at which police assistance at the scene of a private repossession may cause the repossession to take on the character of state action." Barrett v. Harwood, 189 F.3d 297, 302 (2d Cir.1999).

This view is echoed among the circuits. See, e.g., Cofield v. Randolph County Comm'n, 90 F.3d 468, 471 (11th Cir.1996) ("state action might be present if an officer were to facilitate a repossession"); Harris v. City of Roseburg, 664 F.2d 1121, 1127 (9th Cir.1981) ("police intervention and aid in the repossession does constitute state action"); United States v. Coleman, 628 F.2d 961, 964 & n. 1 (6th Cir.1980) (police compulsion, encouragement, direction, assistance, or affirmative participation would constitute state action); Menchaca v. Chrysler Credit...