Marcus v. McCollum
2004 U.S. App. LEXIS 27201, 2004 WL 3017259, 394 F.3d 813 (2004)
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Rule of Law:
Police officers are considered state actors under 42 U.S.C. § 1983 if, during a private repossession, they affirmatively intervene to aid the repossessor beyond merely keeping the peace, especially when there is a dispute over ownership or a breach of peace occurs.
Facts:
- Carl McCollum lent money to Diana Marcus, who provided him with a car title as security.
- On February 22, 2002, McCollum, accompanied by a tow service driver, went to the Marcus home to repossess a car and informed on-duty Shawnee police officer Mason Wilson of his intent.
- McCollum began towing a 1978 Pontiac Firebird from the Marcuses' private driveway, possessing a "piece of paper" with a VIN matching the Pontiac.
- Diana Marcus and her minor son, Nicholas Shiel, ran outside, arguing with McCollum and stating the Pontiac belonged to Mike Marcus and was not the vehicle securing Diana Marcus's loan, then attempted to prevent the towing.
- Officer Wilson, observing the heated argument, drove to the driveway, called for backup, and was subsequently joined by Officers Jennifer Thomas, David Powell, and Kent Borcherding.
- The officers allegedly poked Nicholas several times in the chest, pushing him backward, and told Diana and Nicholas to stop interfering.
- The officers advised Diana Marcus and Nicholas Shiel to "let them do what they’re going to do and take it up in small claims court" and allegedly threatened them with arrest if they continued to resist.
- Fearing arrest, Diana Marcus and Nicholas Shiel ceased their resistance, allowing the Pontiac to be towed away, with Officer Wilson remaining until the wrecker departed.
Procedural Posture:
- Carl McCollum towed a 1978 Pontiac Firebird from the driveway of Diana and Mike Marcus.
- Diana Marcus, Mike Marcus, and Nicholas Shiel filed a lawsuit in state court against Carl McCollum, Swope 24-Hr. Wrecker Service, L.L.C., police officers (Mason Wilson, Jennifer Thomas, David Powell, Kent Borcherding), and the City of Shawnee.
- The lawsuit asserted a federal civil rights claim under 42 U.S.C. § 1983, alleging Fourth and Fourteenth Amendment violations, alongside state tort claims.
- The City of Shawnee removed the case to federal district court.
- Defendants (police officers and Mr. McCollum) moved for summary judgment on the § 1983 claim.
- The federal district court granted summary judgment in favor of the police officers and Mr. McCollum on the § 1983 claim, concluding that the officers' conduct did not amount to state action and that they were entitled to qualified immunity.
- The district court remanded the remaining state tort claims to state court.
- Plaintiffs Diana Marcus, Mike Marcus, and Nicholas Shiel appealed the district court's grant of summary judgment regarding the police officers' § 1983 liability to the U.S. Court of Appeals for the Tenth Circuit, with the police officers serving as appellees.
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Issue:
Does genuine issues of material fact exist regarding whether police officers' conduct during a private property repossession constituted state action in violation of the Fourth and Fourteenth Amendments, and if they are entitled to qualified immunity, thus precluding summary judgment?
Opinions:
Majority - Seymour, Circuit Judge
No, the district court erred in granting summary judgment because genuine issues of material fact preclude a determination that the police officers' actions did not amount to state action and that they were entitled to qualified immunity. The court reasoned that officers are not state actors if they merely keep the peace, but cross the line if they affirmatively intervene to aid the repossessor. This case is distinguishable from precedents where repossession was undisputed or occurred on public property, as here the car was on private property, and plaintiffs disputed ownership and attempted to resist. Oklahoma law (U.C.C. § 1-9-609) prohibits self-help repossession if a breach of the peace occurs, and a debtor's resistance constitutes such a breach. The officers' alleged actions, including telling plaintiffs to stop interfering, threatening arrest, physically poking Nicholas, and remaining until the tow was complete, could be construed by a jury as aiding the repossessor rather than merely keeping the peace. Furthermore, the court found that the constitutional rights to procedural due process and freedom from unreasonable seizure, as well as the limits on self-help repossession, were clearly established, meaning a reasonable officer should have known their conduct might be unlawful under the disputed facts, thus preventing a grant of qualified immunity at the summary judgment stage.
Dissenting - Brorby, Senior Circuit Judge
Yes, the district court correctly granted summary judgment in favor of the police officers, who should be entitled to qualified immunity because their actions were objectively reasonable for the purpose of keeping the peace. The dissent argued that the Marcuses abandoned their "joint action" claim against McCollum by not appealing against him, which was central to their § 1983 theory. Even bifurcating the claim, no evidence established a Fourth or Fourteenth Amendment violation. The officers responded to a heated dispute that had already begun, acting solely for peacekeeping purposes to prevent injury. Officer Wilson's initial warning about it being a civil matter, and later cautions against breaching the peace (including threats of arrest for loud, abusive language or the alleged 'poking'), were objectively reasonable responses to an escalating situation, not affirmative aid to the repossessor. The dissent contends that police have no duty to determine rightful ownership during a self-help repossession and that placing such a burden on officers or allowing subjective perceptions of intimidation to negate qualified immunity would create an unworkable "Catch-22" for law enforcement, hindering their ability to diffuse volatile situations. Therefore, the officers' conduct fell within their peacekeeping duties and was objectively reasonable, meriting qualified immunity.
Analysis:
This case is significant for clarifying the boundary between legitimate police peacekeeping and unlawful state action in the context of private repossessions. It underscores that police cannot simply defer to a repossessor, particularly when ownership is disputed, a breach of peace is occurring on private property, and the debtor attempts to resist. The ruling reinforces the principle that police cannot act as a "curbside courtroom" to determine property rights, and their involvement can transform a private act into state action if they actively aid one party or suppress a lawful right to resist. Future cases will need to carefully examine the totality of circumstances, emphasizing the police's intent and impact on the debtor's ability to protect their property, especially when qualified immunity is asserted at the summary judgment stage.
