BECKER, Circuit Judge, concurring in part and dissenting in part.
OPINION OF THE COURT
FUENTES, Circuit Judge.
This appeal raises questions regarding the liability of a police officer and a landlord involved in an ex parte private repossession by a former boyfriend of the plaintiff. We hold that a police officer actively involved in such a repossession may be engaged in state action in violation the Fourth Amendment. We will reverse the grant of summary judgment in favor of the officer because the District Court improperly resolved a material factual dispute in favor of the police officer on this issue. We also hold that the landlord, who, according to the plaintiff, participated in the repossession by opening the door to the plaintiff's apartment at the direction of the police officer, was not engaged in state action. We will therefore affirm summary judgment in the landlord's favor. We will also affirm summary judgment in favor of
1. Facts & Procedural Posture
This case centers around a private repossession of property by an ex-boyfriend from his former residence.
Olowiany's attorney sent a letter to Harvey asking her to set a time for Olowiany to retrieve his remaining property. The letter also contained an itemized list of that property. Harvey did not to respond to the letter. The attorney sent a second letter, stating that on September 18, 1999 at 2:00 p.m., Olowiany would arrive to retrieve his belongings accompanied by a Plains Township police officer. He sent a copy of this letter to the Plains Township Police Department ("Police Department") and to Harvey's landlord, Joan Chukinas. Because she was residing elsewhere at the time, Harvey claims she never received the second letter.
On September 18, Officer Ronald Dombroski was sent to the Harvey residence by a supervisor in order to keep the peace at the repossession. Dombroski was given a copy of the list of items to be retrieved, as described in Olowiany's attorney's first letter. At the agreed-upon time, Olowiany, Dombroski, and Chukinas arrived at the apartment. Harvey, apparently unaware that her apartment was to be entered, was not present. Dombroski directed Chukinas to unlock the door, so that Olowiany could retrieve his property.
Harvey brought suit under 42 U.S.C. § 1983 against Dombroski, Chukinas, Police Chief Edward Walsh, the Plains Township Police Department, and the Plains Township Board.
II. Officer Dombroski
To prevail on this appeal with respect to Officer Dombroski, Harvey must show: (1) that Dombroski took part in state action; (2) that the state action violated her asserted constitutional rights; and (3) that Dombroski is not entitled to qualified immunity with respect to the constitutional violation. We address these issues in that order.
A. State Action
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). To satisfy the state action requirement, the defendant must have used authority derived from the state in causing the alleged harm. See Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir.1998).
In Abbott, we considered the state action question under facts somewhat similar to those in this case. 164 F.3d 141. Mark Abbott and Laurie Latshaw were a divorced couple. During their marriage, Latshaw's father purchased a van for the couple and eventually sold any interest that he may have had in it to Abbott in exchange for Abbott's promise to pay off the loan, which Abbott fulfilled. However, Abbott never received the title from Latshaw's father, and after the divorce, the father transferred the title to his daughter, rather than Abbott. She then sought repossession of the van by enlisting Albert Diehl, a county constable, notifying him of these facts and paying him to help her retrieve the vehicle. To prove that she owned the van, Latshaw showed the constable the title and a temporary registration. Diehl asked Abbott for the keys to the van, but Abbott refused, arguing that he paid for the van and he owned it. Diehl then summoned the police, and, in response, three officers arrived: Officer Sarsfield, Officer Stafford, and Lieutenant George. At about the same time, Abbott's attorney arrived at the scene and boxed in the van, just as a locksmith had completed a duplicate key for Latshaw. Lieutenant George ordered the attorney to unblock the van, and arrested the attorney after he refused to do so. In the meantime, Latshaw got into the van and managed to get around the attorney's car and drive away. Abbott filed a § 1983 action against his ex-wife Latshaw, Constable Diehl, Officers Sarsfield and Stafford, and Lieutenant George, alleging that they deprived him of his property-the van-without due process in violation of the Fourteenth Amendment. The District Court dismissed all of the claims based on qualified immunity or lack of state action. On appeal, we considered whether state action could be found with respect to the various actors.
Id. at 147. As to the police officers, we found that the mere presence of Sarsfield and Stafford at the repossession did not constitute state action:
Id. at 147. We, however, did find George's actions to qualify as state action (at least for summary judgment purposes):
Id. As to Latshaw, we first noted that, "[a]lthough not an agent of the state, a private party who willfully participates in a joint conspiracy with state officials to deprive a person of a constitutional right acts `under color of state law' for purposes of § 1983." Id. at 147-48. We reinstated the claim against Latshaw, finding that state action was sufficiently alleged, as "Abbott had alleged in his complaint that Diehl acted `at the instance and request of Defendant Latshaw' and ... the complaint depicted joint action by Latshaw and Diehl in effectuating the recovery of the van," and that the allegations had at least some support in the facts. Id. at 148.
Here, Dombroski argues that his action does not constitute state action, because he merely was present at a private repossession-likening his conduct to Officers Sarsfield and Stafford in Abbott. We reject this argument. In an answer to an interrogatory, Chukinas, the landlord, states that she opened the door "at the direction and with the permission of the Plains Township Police."
Dombroski relies on cases that allegedly suggest that the plaintiff's presence, here Harvey's presence, was necessary for state action to have taken place. See, e.g., Barrett v. Harwood, 189 F.3d 297, 302-03 (2d Cir.1999); Breiner v. Litwhiler, 245 F.Supp.2d 614, 626 (M.D.Pa.2003). While the presence of the plaintiff at the alleged constitutional violation was important in these cases, it was important not in itself but as an indicator of the role that the defendant likely played. In Barrett, the Second Circuit found that an officer's warning to the plaintiff against "start[ing] any trouble" was a reasonable peacekeeping response to the plaintiff's violent opposition to the repossession. 189 F.3d at 303. The court stated that the "crucial question" was whether or not the officer was "taking an active role that either affirmatively assisted in the repossession over the debtor's objection or intentionally intimidated the debtor so as to prevent him from exercising his legal right to object to the repossession." Id. at 302-03. However, we believe that the implication that the plaintiff must be present was in response to the factual situation presented. This is made clear by the court's earlier more general formulation of the issue: "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." Id. at 302. Thus, we do not read Barrett as embracing a rule that requires the plaintiff's presence in order to find state action.
In Breiner, the district court assigned significance to the plaintiff's absence at the scene because it showed that she was not intimidated by the police presence-intimidation being one method by which an officer might help effectuate a constitutional violation. Id. at 626. However, as in Barrett, what was ultimately important was whether the injury to the plaintiff was aided by the use of state-derived authority, not whether the alleged state action was immediately directed at the plaintiff. Here, the record supports a finding that the officer used his authority to compel Chukinas to open the door. Thus, the use of state-derived authority-Dombroski's order to open the door-was critical to the repossession, satisfying the state-action test discussed above.
B. Constitutional Violation
The District Court found that "[t]he law was unquestionably clear in September, 1999, that the Fourth Amendment prohibited unreasonable searches and seizures of a person's home by the police without a warrant." App. 8 (citing Payton v. New York, 445 U.S. 573, 583-85, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). In arguing that the District Court should be affirmed, the defendants (including Dombroski) do not appear to deny this contention.
In addition to the Fourth Amendment violation, Harvey notes in her reply brief that she "also claims that her right to due process was violated." Reply Br. of Appellant at 4. It is unclear whether a due process claim was properly raised in her complaint or explicitly made before the District Court, as the finding by the District Court that Dombroski violated the Fourth Amendment allowed it to move to the reasonableness prong of qualified immunity without having to consider other constitutional claims. Of course, that claim could have provided a ground to deny qualified immunity, but we need not dwell on this issue. As Harvey neglected to raise this argument in her opening brief, we find it waived.
C. Qualified Immunity
"Qualified immunity shields public officials performing discretionary functions from § 1983 and Fourteenth Amendment liability `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Abbott, 164 F.3d at 148 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Our qualified immunity inquiry is a two step process. First, we must determine whether the defendants violated "clearly established" rights. Id. This entails a finding of a constitutional or statutory violation as well as a finding that the violated right was clearly established at the time of the violation. Second, we determine whether a reasonable officer would have believed that his or her conduct deprived the plaintiff of his or her constitutional rights. Id.
The Fourth Amendment right violated here was clearly established at the time
The main issue here is whether Dombroski's belief that he was acting lawfully was reasonable. The District Court found that Dombroski's conduct was reasonable, because he was ordered by his superior to keep the peace during the repossession, was given the letters sent by Olowiany's attorney, and believed that Harvey and Chukinas had received the letter detailing the time of the repossession and the items to be removed (this latter belief was deemed reasonable because the letter indicated that it was sent to those parties). Thus, the District Court reasoned, "as far as Dombroski knew, the necessary arrangements had been made for Olowiany to retrieve his belongings, and his role was simply to keep the peace." App. 10. Accordingly, "Dombroski reasonably believed that by allowing Chukinas to unlock the door, and his entering the apartment, he was acting to keep the peace." The District Court found that "Dombroski was acting under a belief that the owner of the property was retrieving possessions with permission from the possessor." Id.
The essence of the District Court's analysis appears to be that it was reasonable for Dombroski to conclude that Harvey consented to the repossession. This belief was based on the fact that the letter detailing the time of the repossession was sent to Harvey. We believe that it is unreasonable to conclude, on the basis of a letter that the ex-boyfriend's attorney sent Harvey, to which she did not respond, that Harvey consented to the repossession.
Our dissenting colleague argues that our conclusion runs afoul of Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034,
Because we find Officer Dombroski's conduct to be unreasonable given the facts presented, we will reverse the District Court's grant of summary judgment on qualified immunity grounds to Dombroski.
III. Joan Chukinas
The District Court, as regards to the culpability of the landlord, found that, as a matter of law, "Chukinas's conduct [did] not rise to the level of a constitutional violation" because she "neither acted under color of law, nor did she act in concert with Dombroski." App. 12. It found that she did not assert any state authority in opening the door and that there are no facts alleged that support a finding that Chukinas and Dombroski acted in concert. Our discussion of the law regarding state action and of the alleged constitutional violations provides the relevant background.
Harvey argues that, because the door was unlocked through some sort of interaction between Dombroski and Chukinas, they, by definition, acted jointly, satisfying the test from United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966) ("Private persons, jointly engaged with state officials in the prohibited action, are acting `under color' of law for purposes of [§ 1983]."), for private party state action. However, the Price test requires more than joint action, but rather requires that the private actor at least be "a willful participant in joint activity with the State or its agents." 383 U.S. at 794, 86 S.Ct. 1152 (emphasis added). Thus, compelled participation by a private actor may fall outside of the contours of state action.
As we are considering Chukinas's motion for summary judgment here, we construe the facts in the most favorable light to Harvey. The record supports three possible scenarios with respect to Chukinas: (1) she acted on her own in opening the door for Olowiany; (2) she acted with Dombroski's permission in opening the door, but the choice of whether or not to open it was hers; or (3) she acted at Dombroski's direction in opening the door. If, under any of these scenarios, Chukinas could be considered to have engaged in state action, we must reject the District Court's finding that Chukinas did not engage in such action.
Under the first scenario, in which Chukinas acted without any input from Dombroski, Dombroski would merely have been present at the scene and would not have used any of the state's coercive powers. Accordingly, there would be no state action by Dombroski, and Chukinas could not have acted jointly in state action (as there was none). Therefore this scenario is of no help to Harvey. The second scenario-in which Chukinas chose to act with the permission of Dombroski-is not materially different from the first, as the action is not coerced. See supra note 6.
This leaves the last scenario, under which Dombroski ordered Chukinas to open the door. Chukinas argues that, unlike in cases in which private parties have been found to have acted jointly with state actors, she did not direct Dombroski to do anything nor did she request his assistance with anything. Moreover, she argues, she had no personal interest in getting the door opened, unlike, for example, Latshaw's use of the constable in Abbott.
The Supreme Court's language requiring joint action or action in concert suggests that some sort of common purpose or intent must be shown. See Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 942, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (finding that "[t]he Court of Appeals erred in holding that in this context `joint participation'
Harvey points out that, in Reitz v. County of Bucks, we noted that "[o]ther courts have recognized that conduct as seemingly benign as towing a vehicle at the direction of a police officer can result in § 1983 liability for a private defendant." 125 F.3d 139, 148 (3d Cir.1997) (citing Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1322 (9th Cir.1982)). The situation described in Goichman, however, arose within a detailed statutory scheme empowering the towing companies that was created by the state to accomplish its own prerogatives with respect to traffic regulation. Also, Goichman concerned whether the towing could be considered state action, not whether suit could be brought against the private trucking companies.
IV. The Township and Chief of Police
Harvey makes failure to train claims against the Township and the Chief of Police. The District Court dismissed both claims on summary judgment, finding, among other things, that Harvey failed to offer any evidence of deliberate indifference on the part of either the Township or
For the reasons discussed above, we will affirm the District Court's grant of summary judgment in favor of Chukinas, Plains Township, and Chief Walsh. However, we will reverse the grant in favor of Officer Dombroski and remand for proceedings consistent with this opinion.
BECKER, Circuit Judge.
I join in Parts I, II.A and II.B, III, and IV of the majority opinion.
At the summary judgment stage, we must begin the qualified immunity analysis by determining whether, viewing the evidence in the light most favorable to the plaintiff, "the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If such facts establish a violation, then, under the second step of the analysis, we must ask whether the "right was clearly established." Id.
It is undisputed that "the Fourth Amendment prohibited unreasonable searches and seizures of a person's home by the police without a warrant." Maj. Op. at 192-193; see also Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("`[T]he chief evil against which the ... Fourth Amendment is directed' is warrantless entry and search of home"). While this general proposition, on which the majority relies, may be enough for the first step of the qualified immunity analysis, the majority's characterization of the "right" in question is framed with insufficient particularity to determine whether it was "clearly established" under the second step. Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151. Rather, to find that a right was "clearly established," "the right allegedly violated must be defined at the appropriate level of specificity." Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). In a fact-bound Fourth Amendment situation, "the right the official is alleged to have violated must have been `clearly established' in a more particularized,
The majority misapplies the Anderson standard. Instead, it simply concludes it was not reasonable for Dombroski to believe that Harvey consented or that the PFA was sufficient authorization for him to allow (or direct) entry into the apartment. Anderson, however, posits a more forgiving inquiry even at the summary judgment stage.
In my view, Officer Dombroski certainly could have believed that his conduct was lawful in light of the information in his possession. Dombroski was aware that Olowiany's attorney had written two letters to Harvey, the first asking her to set a time for Olowiany to retrieve his remaining property (and enclosing an itemized list of that property), and the second stating that on September 18, 1999, at 2:00 p.m., Olowiany would arrive to retrieve his belongings accompanied by a Plains Township police officer. The letters were copied to the Police Department and Chukinas. Although Harvey claimed in her deposition that she was residing elsewhere at the time and that she never received the second letter, Dombroski had no reason to know that, and this post hoc representation rings hollow in view of the fact that her possessions were still in the apartment (including the ones that she claims that Olowiany "trashed" or purloined). Moreover, under Third Circuit law there is a presumption that a properly mailed item was received by the addressee, see In re Cendant Corp. Prides Litig., 311 F.3d 298, 304 (3d Cir.2002), and I do not see why Dombroski could not rely on that presumption.
The majority states that Dombroski had no reason to believe that Harvey had received the letter or consented to the repossession, and even goes on to say that a reasonable officer should have determined whether consent was given by Harvey for the repossession and refused to assist in the opening of the door until he was satisfied that consent was given. Pray tell how this local police officer sent on short notice to keep the peace at what he understood to be a long prearranged appointment could satisfy the majority's prescriptions? Cf. Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ("It is apparent that in order to satisfy the `reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by agents of the government ... is not that they always be correct, but that they always be reasonable ... We see no reason to depart from this general rule with respect to facts bearing upon the authority to consent to a search.").
Additionally, Dombroski knew that the PFA, which granted Harvey exclusive possession of the apartment, also permitted Olowiany to pick up his personal belongings from the apartment. The PFA could be interpreted as obviating the need for Harvey's consent.
Finally, Dombroski was acting on the orders of his sergeant. While it is typically no defense for an officer to claim he was simply "following orders," Villanueva v. George, 659 F.2d 851, 855 (8th Cir.1981) (en banc), "[p]lausible instructions from a superior or fellow officer" can "support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists." Bilida v. McCleod, 211 F.3d 166, 174-75 (1st Cir.2000); see also Lauro v. Charles, 219 F.3d 202, 216 n. 10 (2d Cir.2000). The sergeant's order in this case could have given Dombroski an additional basis for believing that the necessary arrangements were made for proper entry into Harvey's apartment
In sum, relying on the two letters from Olowiany's attorney, the PFA, and the orders from his supervisor, Dombroski could have reasonably believed either that Harvey consented to the entry or that the PFA authorized it. Under these circumstances, I believe that Dombroski's willingness to tell Chukinas that she could open the door was reasonable, and that he should be granted qualified immunity.
App. 94. The letter also stated that a copy was sent to Chukinas.