©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
Law enforcement officers are often called to keep the peace during eviction proceedings. While the vast majority of these incidents are handled without problems, at times, it is possible for officers or deputies to sometimes exceed the bounds of what the Constitution allows. Recently, the Sixth Circuit Court of Appeals decided Cochran v. Gilliam [i] which provides guidance regarding the constitutional parameters for officers or deputies on scene at an eviction in order to keep the peace.
The facts of Gilliam are as follows: In 2008, Cochran leased a home from the Mr. and Mrs. Williams (the Landlords). After Cochran fell behind in rent payments, the Landlords filed a “Forcible Detainer Complaint” in state court. Later, a judge ruled against Cochran and found him guilty of forcible detainer. Specifically, the order stated that Cochran “was guilty of forcible detainer as charged and that [the Landlords] have restitution of the premises…and recover of the Defendant the costs expended herein.” [ii] The court also issued an Eviction Notice that stated:
To the Sheriff or any other Constable of Lincoln County: Defendant [Cochran] on 8-28-2008 was found guilty of a forcible detainer of the premises located at 3700 HWY 2141, Stanford, KY 40484 to the injury of the Plaintiff [Mr. and Mrs. Williams]. Defendant having failed to file an appeal on or before the seventh day after the finding, and upon request of the Plaintiff, you are commanded, in the name of the Commonwealth of Kentucky, to put the Plaintiff in possession of the premises, and to make due return to the Court within 8 days showing you have executed this warrant. [iii]
Three days later, on September 8, 2008, Deputy Sheriffs Dan and Don Gilliam and another deputy who was not named as a defendant, went to the home at issue to keep the peace while the Eviction Notice was executed.
At the beginning of the eviction, Cochran was not home. His neighbor called him and he, his mother and his sister eventually arrived. During the eviction, Deputy Don Gilliam told the Landlords that he noticed the court’s order was silent as to whether the Landlords could seize Cochran’s personal property to sell to recover rent and costs. Allegedly, the deputy then told the Landlord that he should go ahead and seize the personal property. Additionally, the Landlord told the deputy that the County Attorney told him that he could sell Cochran’s personal property to recover his losses. Deputy Don Gilliam, in an Affidavit, stated that he, in turn, called the County Attorney regarding the issue. He said that the County Attorney told him that the Landlords “had the right to sell the property.” [iv]
As such, during the course of the eviction, the deputy sheriff’s threatened to restrain or arrest anyone who attempted to interfere with the Landlords as they took Cochran’s personal property. Additionally, Deputy’s Don and Dan Gilliam helped the Landlords load Cochran’s personal property into the Landlord’s vehicle. Allegedly, there were even photographs of the deputies actively loading items for the Landlord. Even further, Deputy Don Gilliam admitted that he paid the Landlord $100 for Cochran’s television which he planned to use at the sheriff’s office. Cochran’s guns and prescription medication were also taken by the deputies and subsequently turned over to the Landlord’s uncle who was a constable.
During one point during the eviction, Cochran called the Kentucky State Police. Cochran claims the deputies cancelled the state police telling them that they would handle the call. The deputies claim that Cochran cancelled the state police response himself.
After the eviction and seizure of his property, Cochran alleges that he offered to pay the Landlord for the return of his property. However, he states that no property has been returned to him.
Cochran subsequently filed a lawsuit against Deputies Don and Dan Gilliam under 42 U.S.C. § 1983 for violating his Fourth and Fourteenth Amendment rights. While Cochran admits that the deputies had a right to be at the residence for the eviction, he contends that the Landlord was required to place his personal property on the sidewalk. Cochran alleged the Fourth Amendment violation stemmed from the deputies unreasonable involvement in the seizure of his personal property and the Fourteenth Amendment violation stemmed from the deputies, while acting in their official capacity as deputy sheriffs, assisted the Landlords in removing and transporting away his personal property.
The district court denied qualified immunity for Deputy’s Don and Dan Gilliam in their personal capacities and also allowed a claim for punitive damages. The deputies appealed the denial of qualified immunity to the Sixth Circuit Court of Appeals.
The Sixth Circuit noted that, under the qualified immunity analysis, they must first determine whether or not a constitutional violation occurred; if so, they second, must determine whether the right that was violated was “clearly established” at the time of the violation such that a reasonable officer would have known that he was violating the law. [v]
The Sixth Circuit then first sought to determine whether the Deputy’s Don and Dan Gilliam violated the Fourth Amendment by their involvement during the eviction.
The Gilliam’s argued that they should be entitled to qualified immunity from suit because (1) they did not actively participate in the removal of Cochran’s property, and (2) Kentucky law did not prohibit the removal of Cochran’s property by the Landlords.
The Sixth Circuit noted that under the Fourth Amendment a “seizure” occurs when government officials meaningfully interfere with a person’s possessory interest in their property. [vi] The court of appeals also noted that it is undisputed that the Gilliam’s did not take all of Cochran’s property but they did actively assist the Landlords who did take Cochran’s personal property. Thus, the court of appeals stated that they must determine whether the Gilliam’s “meaningfully interfered” with Cochran’s property.
The court of the appeals then stated:
What actions can constitute a meaningful interference with property is determined under a reasonableness analysis. While the term “reasonableness” standing alone, without context, is of limited value, the Supreme Court’s dicta on Fourth Amendment seizures is instructive. What matters is the intrusion on the people’s security from governmental interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all. [vii] [internal citations and quotations omitted]
The court of appeals then stated that they agreed with the district court that the Gilliam’s participation in the improper seizure of personal property does violate the Fourth Amendment.
The court also more specifically examined the lead United States Supreme Court case on the topic of seizures during evictions, Sodal v. Cook County, Ill. [viii] In Sodal, deputies knowing that no eviction order existed, went with a landlord who dragged Sodal’s trailer off of its mooring in the trailer park owned by the landlord. The deputies stood by and threatened to arrest Sodal if there was interference with the landlord’s efforts. When Sodal tried to file a trespassing complaint with the deputy’s lieutenant, the lieutenant called the prosecutor and then told Sodal it was a civil issue. The Supreme Court held:
[T]he deputy sheriffs, by telling Sodal they were there to prevent his interference in the repossession and by refusing to stop a legally questionable repossession by others, constituted a Fourth Amendmentseizure, despite the fact the deputies did not enter Sodal’s house, rummage through his possessions, or . . . interfere with his liberty in the course of the eviction. [ix] [internal citations and quotations omitted]
After examining Sodal, the court of appeals examined precedent from the Sixth Circuit. First, they noted that, in Revis v. Meldrum, they held that:
[A]n officer’s mere presence at the scene to keep the peace while parties carry out their private repossession remedies does not render the repossession action that of the state. [x]
On the other hand, the court also noted:
[I]n cases where police officers take an active role in a seizure or eviction, they are no longer mere passive observers and courts have held that the officers are not entitled to qualified immunity. See Haverstick Enters., Inc. v. Fin. Fed. Credit, Inc., 32 F.3d 989, 995 (6th Cir. 1994). This is particularly true when there is neither a specific court order permitting the officers’ conduct nor any exigent circumstance in which the government’s interest would outweigh the individual’s interest in his property. Cf. Flatford v. City of Monroe, 17 F.3d 162, 169-71 (6th Cir. 1994). [xi]
The court then applied the facts of Cochran’s case to the rules discussed from the cases above. First, there was evidence, including a photograph, that the Gilliam’s personally carried Cochran’s personal property to the Landlord’s truck. The court of appeals noted that this goes even further than the deputies in Sodal, who did not enter Sodal’s trailer or touch Sodal’s personal property. Additionally, the Gilliam’s threatened to arrest anyone who interfered with the taking of Cochran’s property. Lastly, the Gilliam’s even purchased a television belonging to Cochran from the Landlord at the scene. As such, the Sixth Circuit held:
These acts, taken together, indicate the Gilliams’ presence that day went beyond the constitutionally permissible detached keeping of the peace function and crossed over into a “meaningful interference” with Cochran’s property. [xii]
The Gilliam’s also argued that they should be entitled to qualified immunity because they relied on the advice of the County Attorney that the Landlords could take and sell Cochran’s property.
The pertinent facts to this issue are that the Gilliam’s knew the order did not specifically authorize the taking of Cochran’s personal property to sell. However, they suggested that the Landlords do so anyway and called the County Attorney to confirm their statement. This, they claim, should entitle them to qualified immunity.
The court of appeals stated the rule regarding immunity for reliance on legal advice is as follows:
[A] law enforcement officer’s phone call to a county or district attorney for general guidance when confronted with a situation where there is no legal basis for the contemplated actions does not automatically convert unreasonable actions into reasonable actions. This circuit has determined that reliance on counsel’s legal advice constitutes a qualified immunity defense only under ‘extraordinary circumstances,’ and has never found that those circumstances were met. [xiii] [internal quotations omitted]
The court of appeals then held that, like the district court, they agree that no extraordinary circumstances are present to grant the deputies immunity for reliance on legal advice.
The deputies also argued that the taking of Cochran’s personal property was authorized under a Kentucky statute that allows a landlord a lien on a tenant’s personal property in order to secure payment of rent. [xiv] However, the court of appeals stated:
[T]his section of the Kentucky code merely gives the landlord a lien on the personal property—the lien does not give a landlord carte blanche to take possession of the tenant’s property without going through the proper judicial processes. [xv]
As such, the Sixth Circuit agreed with the district court that Deputy’s Don and Dan Gilliam did violate Cochran’s Fourth Amendment rights by their actions during the eviction.
The court of appeals then sought to determine whether this Fourth Amendment right was clearly established such that another reasonable officer in the same situation would have known the conduct was a violation. If the law was not clearly established, the deputies will be entitled to qualified immunity. If the law was clearly established, the deputies are not entitled to qualified immunity.
The Gilliam’s argued that there was no similar case precedent to put them on notice that their conduct was unlawful. However, the court of appeals noted that they do not require cases with practically identical fact patterns in order hold that the law is clearly established. In fact, the court of appeals stated:
[T]his Court has employed a more reasonable, common sense approach to the “clearly established” analysis, one that acknowledges that, while every situation will involve slightly different factual scenarios, they are not so different that courts and public officials cannot intuit the contours of the rights at issue. Under this standard, a right is “clearly established,” when [t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. Additionally, an action’s unlawfulness can be apparent from direct holdings, from specific examples described as prohibited, or from the general reasoning that a court employs. [xvi] [internal citations and quotations omitted]
The court of appeals then stated that, based on the United States Supreme Court’s holding in Sodal, the law was clearly established for the deputies in Cochran. The court of appeals also stated that they believed they were consistent in their interpretation of Sodal with other circuits that have faced similar cases. Specifically, the court stated:
[W]e note our application of Soldal is consistent with other circuits regarding police officers taking active roles in otherwise private self-help remedies. HN17 Generally, “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.” Marcus v. McCollum, 394 F.3d 813, 818-19 (10th Cir. 2004) (citing similar cases from the Fifth, Ninth, and Eleventh Circuits). The Second Circuit has discussed police officers’ involvement in repossessions as a continuum, stating: “When 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). See also Booker v. City of Atlanta, 776 F.2d 272, 274 (11th Cir. 1985) (police officer’s “arrival with the repossessor gave the repossession a cachet of legality and had the effect of intimidating [the plaintiff] into not exercising his right to resist, thus facilitating the repossession. Even if unintended, such an effect could constitute police ‘intervention and aid’ sufficient to establish state action.”). [xvii]
As such, the Sixth Circuit affirmed the district court’s denial of the Gilliam’s motion for qualified immunity. The court refused to address the Fourteenth Amendment issue since the deputies were denied qualified immunity, regardless of the outcome of that issue.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 10-6274, 2011 U.S. App. LEXIS 18448 (6th Cir. Decided September 2, 2011)
[ii] Id. at 2
[iii] Id. at 2-3
[iv] Id. at 4
[v] Id. at 11-12 (citing Saucier v. Katz, 533 U.S. 194 (2001)
[vi] Id. at 14 (citing U.S. v. Jacobsen, 466 U.S. 109 (1984)
[vii] Id. at 14-15
[viii] 506 U.S. 56 (1992)
[ix] Id. at 16 (citing Sodal , 506 U.S. at 62)
[x] Id. at 16-17 (citing Revis v. Meldrum, 489 F.3d 273 (6th Cir. 2007)
[xi] Id. at 17
[xii] Id. at 18
[xiii] Id. at 19-20 (quoting Silberstein v. City of Dayton, 440 F.3d 306, 318 (6th Cir. 2006); see also Buonocore v. Harris, 134 F.3d 245, 253 (4th Cir. 1998) (“[A]lthough reliance on counsel’s advice may indeed be a factor to be considered in deciding whether a defendant has demonstrated an ‘extraordinary circumstance,’ reliance on legal advice alone does not, in and of itself, constitute an ‘extraordinary circumstance’ sufficient to prove entitlement to the exception to the general Harlow [v. [**12] Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982),] rule.”).
[xiv] See Ky. Rev. Stat. § 383.070
[xv] Id. at 21
[xvi] Id. at 23
[xvii] Id. at 24-25