Meyers v. Redwood City

• Citation: 400 F.3d 765
• Decision Date: 10 March 2005
• Docket Number: No. 03-15872.,03-15872.
• Parties: Elizabeth MEYERS; Millie Rovetta, Plaintiffs-Appellees, v. REDWOOD CITY, a municipal entity organized and existing pursuant to the laws of the State of California; Steve Dowden, individually and in his capacity as a law enforcement officer with the Redwood City Police; Christine O'Keefe, individually and in her capacity as a law enforcement officer with the Redwood City Police Department, Defendants-Appellants, and Tri City Recovery; San Mateo Employees Credit Union; Steven A. Bruno, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

400 F.3d 765

Elizabeth MEYERS; Millie Rovetta, Plaintiffs-Appellees, v. REDWOOD CITY, a municipal entity organized and existing pursuant to the laws of the State of California; Steve Dowden, individually and in his capacity as a law enforcement officer with the Redwood City Police; Christine O'Keefe, individually and in her capacity as a law enforcement officer with the Redwood City Police Department, Defendants-Appellants, and Tri City Recovery; San Mateo Employees Credit Union; Steven A. Bruno, Defendants.

No. 03-15872.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 18, 2004.

Filed March 10, 2005.

COPYRIGHT MATERIAL OMITTED

Joseph C. Howard, Jr. and Todd H. Master, Redwood City, CA, for the petitioners-appellants.

Robert R. Powell and Douglas D. Durward, San Jose, CA, for the respondents-appellees.

Appeal from the United States District Court for the Northern District of California; Thelton E. Henderson, District Judge, Presiding. D.C. No. CV-02-01475-TEH.

Before: LAY,^*HAWKINS, and JAY S. BYBEE, Circuit Judges.

BYBEE, Circuit Judge.

Elizabeth Meyers and Millie Rovetta (collectively, "Plaintiffs") brought suit under 42 U.S.C. § 1983 against police officers Steve Dowden and Christine O'Keefe and Redwood City (collectively, "Defendants") for violating their Fourth and Fourteenth Amendment rights during a dispute over a vehicle repossession. Plaintiffs allege that the Redwood City police officers, acting under color of state law, unlawfully intervened in a vehicle repossession and violated their constitutional rights to due process and to be free from unreasonable searches and seizures. This is an interlocutory appeal brought by Defendants from a denial of a motion for summary judgment based upon qualified immunity. Defendants claim that they did not violate the Plaintiffs' constitutional rights and, in the alternative, that those rights were not clearly established and Defendants have qualified immunity from suit. We conclude that Defendants did not violate the Plaintiffs' constitutional rights.

I. BACKGROUND

The California Commercial Code provides a right of repossession for secured creditors. Section 9609 states that "[a]fter default, a secured party may . . . [t]ake possession of the collateral. . . [w]ithout judicial process, if it proceeds without breach of the peace." CAL. COM. CODE § 9609(a)(1), (b)(2). The California Business and Professional Code states that, ith respect to vehicles, "a repossession occurs when the repossessor gains entry to the collateral." CAL. BUS. & PROF. CODE § 7507.12. However, police who aid a self-help repossessor may be liable under Section 1983,

not only when there has been an actual "taking" of property by a police officer, but also when the officer assists in effectuating a repossession over the objection of a debtor or so intimidates a debtor as to cause him to refrain from exercising his legal right to resist a repossession. While mere acquiescence by the police to "stand by in case of trouble" is insufficient to convert a repossession into state action, police intervention and aid in the repossession does constitute state action.

Harris v. City of Roseburg, 664 F.2d 1121, 1127 (9th Cir.1981).

Plaintiff Meyers financed a Lexus through the San Mateo County Employees Credit Union ("Credit Union"). When she became delinquent in those payments, the Credit Union hired Tri-City Recovery ("Tri-City") to repossess Meyers's vehicle. Tri-City in turn hired Steve Bruno to effect the actual repossession. On April 19, 2001, at three o'clock in the morning, Bruno knocked on the front door and demanded the keys to Meyers's car. Meyers attempted to explain that there was already a valid arrangement for payment, but Bruno informed her of his right to take the car and continued to demand the keys to the vehicle. A heated argument ensued, as Meyers informed Bruno that he was trespassing and asked him to hold off repossession for a few hours until she could call her insurance company and the Credit Union to resolve the problem. Bruno refused this request and continued to demand the keys and insist that he was taking the car.

Bruno left the doorstep and proceeded to circle the car, presumably looking for a way into the vehicle. Meyers grabbed her keys and headed towards the car to drive away. Meyers alleges that, at that point, a scuffle occurred in which Bruno lunged at her, grabbing her by her waist and injuring surgical scars from her recent caesarian section as he lifted her off her feet. After Bruno released Meyers, Meyers circled the Lexus in an attempt to open and lock the car door before Bruno could make it to the door. Meyers opened the car with her remote control and managed to get into the driver's seat. Before she could close the door, however, Bruno blocked her efforts to close the door, so that Meyers was halfway in the driver's seat. Bruno allegedly attacked her, trying to remove her forcefully from the car by pulling at her arms, thigh, and head. Meyers's mother, Rovetta, then ran up behind Bruno to grab his belt and pull him off her daughter. Bruno stomped on Rovetta's foot and threw her into the nearby bushes, and Rovetta grabbed Bruno around the neck.

During this melee, Meyers started the car and backed it part way down the driveway before catching the open door on a bush. Bruno yelled to his companion to block the Lexus in the driveway with another vehicle at the scene. Meyers screamed for her father to get his shotgun, at which point Bruno called 911. Officer O'Keefe and six other unnamed officers appeared shortly and separated Bruno from the Plaintiffs.

Officer O'Keefe interviewed both parties to ascertain what had occurred. Plaintiffs exhibited their injuries and explained their version of the events. Bruno showed the police his identification and informed them that he was hired to repossess Meyers's car and had already gained entry into the car. He told them that he had used a slim jim tool to gain access to the Lexus, and that after he had entered the vehicle he had approached Meyers's house to ask her to remove her property from inside the Lexus. He told police that Plaintiffs physically attacked him, and the officers noted that both his chest and arms were scratched and bleeding. Both Meyers and Bruno showed the officers paperwork purporting to establish their right to the car.

At some point Bruno told the officers that he wanted to effect a citizen's arrest against Plaintiffs for assaulting him. Plaintiffs informed the officers that they too, wished to effect a citizen's arrest against Bruno for assault and trespass. Officer O'Keefe satisfied herself that Bruno had been authorized to repossess the vehicle and asked Bruno something to the effect of, "Is there any way we can resolve this situation peacefully?" Bruno stated that he would not press charges if Plaintiffs would let him take the vehicle away. According to the complaint, Officer O'Keefe went to the Plaintiffs and told them "It looks like this is what we are going to do here, either you are going to let [Bruno] take the car, or we are going to arrest you." Plaintiffs allege that they were "incredulous" and insisted on speaking to a police sergeant. Officer Dowden was summoned. After being apprised of the situation, Dowden relayed to Plaintiffs that giving the car to Bruno was their only option to avoid arrest. Plaintiffs, feeling they had no choice, agreed to let Bruno take the car.

Meyers and Rovetta brought suit against Redwood City, Officers Dowden and O'Keefe, Tri-City, Bruno, and the Credit Union for violation of their constitutional rights and for state tort claims for battery, infliction of emotional distress, false imprisonment, and trespass. Meyers and Rovetta later stipulated to dismiss the § 1983 claims against Tri-City, Bruno, and the Credit Union. The municipal Defendants filed a motion for summary judgment, arguing that Plaintiffs had not shown that Defendants violated their constitutional rights, and that even if there was a constitutional violation, Defendants were entitled to qualified immunity.

The district court denied the Defendants' motion. The court began with the observation that California permits "self-help" repossession "but only if the repossession `proceeds without breach of the peace.'" (quoting CAL. COM. CODE § 9609(b)(2)). The district court found that there were "substantial material disputes of fact as to what occurred" before and after the officers arrived but that, viewing the disputed facts in the light most favorable to the Plaintiffs, there was a breach of the peace and Bruno had no right to repossess the car. Relying on our decision in Harris, the district court held that "[w]hile the police may simply `stand by' in case of trouble, they cannot intervene and aid in the repossession, since doing so converts the possession into `state action,' and the state may not repossess a debtor's property without affording due process." (citations omitted). The court found that Plaintiffs presented evidence that, if believed by a jury, the officers "took sides in the repossession dispute after improperly concluding that the repossession was valid notwithstanding the breach of peace." According to the court, the officers misused their authority by intervening to assist Bruno or by intimidating Meyers so that she refrained from resisting the unlawful repossession. The court also found that the law governing repossession of cars was well established to defeat Defendants' claim of qualified immunity. The district court denied Defendants' motion for summary judgment on the grounds that there was evidence of a constitutional violation and that Plaintiffs' constitutional rights were so clearly established by Harris that the Defendants were not entitled to qualified immunity.

II. DISCUSSION

There are two questions presented by the Defendants' motion for summary judgment in this § 1983 case. Both are questions of law. The first is whether...