AUDIO ODYSSEY, LTD., an Iowa Corporation; Dogan A. Dincer; Ann M. Dincer, Plaintiffs/Appellants, v. BRENTON FIRST NATIONAL BANK, an Iowa Banking Corporation; Michael M. Bladel, Sheriff of Scott County, Iowa; John M. Norris, Deputy Sheriff of Scott County, Iowa; Charles A. Barton; John C. Bradley; Chris A. Pieper, Roger Hoffman; Merchants Bonding Company, a Corporation, Defendants/Appellees
No. 00-1634
United States Court of Appeals, Eighth Circuit
Submitted: Jan. 10, 2001. Filed: April 6, 2001.
245 F.3d 721
While district courts should allow prisoners to supplement the record with evidence of current practices to prove a current and ongoing violation, they are not required to grant discovery requests in every case. See id.; cf. Cagle v. Hutto, 177 F.3d 253, 258 (4th Cir.1999) (pre-termination evidentiary hearing is discretionary unless party opposing termination alleges specific facts amounting to current and ongoing constitutional violation).
Before the district court, appellants contended only that the defendants failed to comply with the requirements of the Schoen decree, that constitutional violations of which they were unaware might exist, and that their rights might be violated in the future if the decree was terminated. Numerous motions alleging violations of the Schoen decree were filed during the twenty-eight years it was in effect. None were sustained, and several were considered by the district court in conjunction with the motion to terminate. The district court found that because the protections afforded by the Schoen decree exceeded those available under the Constitution or any federal law, none of the claims alleged facts that would constitute a violation of any federal right. Based on this record, the district court did not abuse its discretion in denying the request for additional discovery.
We affirm the judgment of the district court.
Dale G. Haake, Rock Island, Illinois, argued (Stuart R. Lefstein, on the brief), for appellant.
Diane Kutzko, Cedar Rapids, Iowa, argued (Robert D. Houghton, on the brief), for appellees Bernard J. Hofmann and Anderson & Nelson.
Stephanie L. Hinz, Cedar Rapids, Iowa, argued (Terry J. Abernathy, on the brief), for appellees Brenton First National Bank, John C. Bradley, Chris A. Pieper, and Merchants Bonding Company.
Michael J. Walton, Davenport, Iowa, argued, for appellees Michael M. Bladel, John M. Norris, and Charles A. Barton.
Gary L. Hayward, Asst. U.S. Atty., Des Moines, Iowa, argued, for appellee Roger Hoffman.
Before LOKEN and BYE, Circuit Judges and SACHS 1, District Judge.
In mid-July 1995, Brenton First National Bank obtained a writ of replevin for seizure of certain property of Audio Odyssey, Ltd., an electronics store in Davenport, Iowa. A sheriff‘s deputy executed the writ later that day, ordered a locksmith to change the locks at the store, and posted “No Trespassing” signs even though the writ called for the seizure of personal, rather than real, property. Audio Odyssey‘s president and sole shareholder, Dogan A. Dincer, could not (or did not) enter the premises for several weeks, and the store went out of business. Seeking redress for the writ‘s ex parte issuance and mishandled execution, Audio Odyssey, Dincer, and Dincer‘s wife brought a variety of claims under
I
We view the record in the light most favorable to plaintiffs. Dogan Dincer, previously an employee and minority shareholder of Audio Odyssey, purchased the business for $270,000 in 1991. The purchase was partially financed through a $200,000 loan from the Bank, and the SBA guaranteed 85 percent of the loan. Audio Odyssey, in turn, executed a “Business Security Agreement” giving the Bank a security interest in the store‘s accounts, general intangibles, contract rights, instruments, chattel paper, documents, inventory, machinery, equipment and fixtures. The Agreement required Audio Odyssey to perform its payment obligations under the note, and to take other steps such as maintaining insurance on the collateral and keeping current with all tax obligations. In the event of default, the Agreement allowed the Bank to accelerate the loan and to enter the store and take the collateral.
In the weeks preceding July 14, 1995, Bank personnel came to believe that Audio Odyssey was failing to perform its duties
The Bank was not persuaded, and it brought an ex parte replevin action later that afternoon. Attorney Bernard Hofmann filed a Petition in Replevin in the Iowa District Court for Scott County, contending, among other things, that (i) Audio Odyssey was delinquent in its loan payments and other obligations, (ii) the Bank was entitled to possession of the collateral under the Agreement, and (iii) immediate action was necessary because the collateral might be destroyed, concealed, moved, sold, or fraudulently transferred (Bank personnel had told Hofmann that an “annual sale” was scheduled for that weekend, and the petition was filed on a Friday). Along with the petition, Hofmann filed a “Bond for Replevin” in the amount of $300,000, or more than twice the value of the collateral. The judge asked Hofmann whether the state‘s replevin statute required notice to the defendant, and Hofmann advised that the court had discretion to give such “notice and opportunity for hearing as it may prescribe” under
All inventory, fixtures, accounts, furniture, equipment and machinery on property described as follows:
4500 square feet located at 1718 E. Kimberly Road, Davenport, Iowa, legally described as: Part of the Northwest Quarter of the Southwest Quarter of Section 18, Township 78, Range 4, East of the 5th P.M. ... to the City of Davenport, Scott County, Iowa.
Armed with the writ and order, Hofmann visited the Scott County Sheriff‘s Department and requested that the writ be served immediately. Sergeant Charles A. Barton reviewed the writ and asked Hofmann if the Bank was prepared with moving trucks to remove the collateral, as is customary. Hofmann said that the Bank did not have moving trucks immediately available. Sergeant Barton explained that the Department could not serve the writ because it was already late in the afternoon and the Bank did not have moving trucks. Hofmann called Bradley at the Bank for instructions, and Bradley told him that the Bank‘s intention was to change the locks and keep Dincer and other store personnel off the premises. Hofmann relayed this information to Sergeant Barton, insisted that the writ be executed that afternoon, and asked whether the Sheriff‘s Department could lock the premises over the weekend to prevent Audio Odyssey from selling the collateral. Sergeant Barton, in turn, reviewed the writ and said that it would be possible to lock the store. At Sergeant Barton‘s re-
Deputy John M. Norris served the writ of replevin at Audio Odyssey at 4 p.m. He met Bradley and the locksmith at the premises, and ordered everyone inside to leave the store. Deputy Norris thereafter directed the locksmith to change the locks, secured the inventory and other collateral, and posted “No Trespassing” signs on the front and back doors. During the next week, Deputy Norris and others completed an inventory of the items described by the writ, removed the items, and turned them over to the Bank (along with keys to the premises).3
In the meantime, Dincer tried to regain access to the premises—albeit somewhat circuitously. He called the judge at home the night that Deputy Norris served the writ, and the judge advised him to employ an attorney. Dincer and Audio Odyssey retained their present counsel the next Monday. Meetings on July 26 and August 4 between attorneys for Audio Odyssey and the Bank were unfruitful. On August 2, 1995, plaintiffs’ attorney wrote a certified letter to the Scott County Sheriff and demanded the immediate surrender of the premises. The letter went unanswered; it is unclear who may have received and reviewed it. Two days later, Audio Odyssey moved to dismiss the replevin action, requested an order directing the sheriff to return the real estate, and filed a jury demand. There was no record of a request for expedited handling, and no evidentiary hearing until August 22, 1995. That hearing was continued and never completed. On August 31, 1995, some six weeks after Deputy Norris executed the writ, a court order allowed Audio Odyssey to enter the premises and remove the “No Trespassing” signs. Dincer elected not to re-open the business, surmising that its goodwill and commercial relationships had been destroyed. Ultimately, the state court did not reach a judgment in the replevin action. It dismissed the case without prejudice at the Bank‘s urging in September 1999—or more than two years after the federal litigation commenced.
In their lawsuit, plaintiffs essentially alleged that Deputy Norris, Sergeant Barton and the private defendants committed an unreasonable seizure of Audio Odyssey‘s real property by changing the locks and erecting “No Trespassing” signs without a court order authorizing such measures, and that the defendants deprived, and conspired to deprive, plaintiffs of personal property without due process of law, by use of an unconstitutional replevin statute. The district court dismissed the federal claim against the SBA loan officer, and dismissed the Dincers’ claims for lack of standing. It later (i) granted summary judgment to the county officials (among other things, finding no violation of plaintiffs’ constitutional rights, and alternatively, granting qualified immunity to the relevant officials), (ii) held that the Iowa replevin statute comported with the requirements of due process, and (iii) rejected the conspiracy claims against the Bank and others, having rejected the underlying claims of constitutional injury. The court dismissed some of the pendent claims on the merits, while dismissing
II
As a threshold matter, we hold that the Dincers lack individual standing to sue defendants for the replevin. It is well established that a shareholder or officer of a corporation cannot recover for legal injuries suffered by the corporation. See Heart of America Grain Inspection Serv., Inc. v. Missouri Dep’t of Agric., 123 F.3d 1098, 1102 (8th Cir.1997); Chance Mgmt., Inc. v. South Dakota, 97 F.3d 1107, 1115—16 (8th Cir.1996). The rule applies even to a corporation’s sole shareholder. See Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d 1311, 1317 (4th Cir.1994). Here, it was Audio Odyssey whose premises and personal property were taken, rightfully or not. Any constitutional violations presented by this case were visited upon Audio Odyssey, and any injuries to the Dincers occurred solely because of their relationship with Audio Odyssey.
It is true that the “shareholder standing rule” does not apply when the alleged injury is distinct from that suffered by the corporation or other shareholders. See, e.g., Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1318 (9th Cir. 1989). The Dincers seek redress for various emotional and reputational injuries stemming from the replevin of the Bank’s collateral and the seizure of the premises, including the loss of business relationships with customers and suppliers. We do not think these injuries are “distinct” from the corporation’s. A “distinct” injury is one in which the claimant’s rights have been violated, not merely one in which the claimant is indirectly harmed because of one party’s injury to another. See, e.g., Gersman v. Group Health Ass’n, 725 F.Supp. 573, 577-78 (D.D.C.1989) (holding that a Jewish president and principal shareholder of company could not maintain suit under
III
We also agree with the district court’s grant of summary judgment on the federal claims regarding Audio Odyssey’s personal property. Audio Odyssey maintains that the Iowa replevin statute,
A
A number of Supreme Court cases have examined whether various state property seizure schemes comport with due process. In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), for example, the Court invalidated Florida and Pennsylvania statutes that permitted an ex parte replevin upon bare conclusory allegations by the creditor and the creditor’s posting of a bond, allowed the clerk of court to
The Court invalidated a Georgia garnishment statute the next year. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). The statute in question allowed a writ of garnishment to issue by a court clerk without judicial participation in the process and upon a conclusory affidavit; the statute did not provide for a prompt hearing, and the debtor could not challenge the garnishment without posting a bond. See id. at 606-08, 95 S.Ct. 719.
On the basis of Fuentes and subsequent authorities, our Court attempted to distill “five primary factors” that must be evaluated in considering a replevin or attachment scheme’s constitutionality in the absence of prior notice and a pre-deprivation hearing. Watertown Equip. Co. v. Norwest Bank Watertown, N.A., 830 F.2d 1487, 1491 (8th Cir.1987).4 These include:
- an affidavit accompanying the petition for the writ of attachment which contains facts alleged by a person with knowledge;
- an opportunity for the debtor to dissolve the writ by posting a bond;
- an “early” post-deprivation hearing at which the creditor bears the burden of proving the legality of the writ of attachment;
- indemnification of the debtor for a wrongful attachment; and
- judicial supervision of the attachment process.
Id.; see also Lewis Service Center v. Mack Financial Corp., 696 F.2d 66, 68 (8th Cir.1982). As Watertown noted, however, there is no easy formula to follow, because due process requirements are not “technical,” and the creditor remedy scheme must be evaluated “as a whole.” 830 F.2d at 1490 (quoting Mitchell).5
We believe that Iowa’s statute satisfies the Watertown evaluation. First, the statute adequately (perhaps generously) indemnifies the debtor in the event of a wrongful taking.
Second, the debtor may routinely regain the taken property by posting a bond of its own. See
Third, the statute provides adequate judicial supervision of the replevin process. A clerk may issue a writ of replevin only “upon direction of the court after notice and opportunity for such hearing as [the court] may prescribe.”
Fourth, we discount Audio Odyssey’s argument that the statute makes no allowance for a prompt post-deprivation hearing.
The statute does specifically preclude defendants from asserting counterclaims and joining “any cause of action not of the same kind.”
We do not believe that the statutory provision for a prompt hearing must be explicit. See Watertown, 830 F.2d at 1492 (“The South Dakota statute can be interpreted as having provided for an immediate hearing.“) (emphasis added). The Iowa statute does not expressly provide for a hearing, much less a prompt one. Yet, the statute is no different in this regard from the one upheld by the Supreme Court in Mitchell.8 There, the Louisiana statute provided that “The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued.” La. Code Civ. Proc. Art. 3506 (unchanged since 1961). In upholding the statute, the Supreme Court observed that the debtor “was not left in limbo to await a hearing that might or might not eventually occur [as in Fuentes]. Louisiana law expressly provides for an immediate hearing and dissolution of the writ ‘unless the plaintiff proves the grounds upon which the writ was issued.‘” Mitchell, 416 U.S. at 618, 94 S.Ct. 1895.9 Just as a Louisiana creditor must “prove the grounds upon which the writ was issued,” Iowa’s statute places the burden of proof upon the creditor throughout the proceedings. See Wilson v. Findley, 223 Iowa 1281, 275 N.W. 47, 56 (1937).
Although the wording of Iowa’s procedural plan might well be improved by fine-tuning, the worst that might be said of it is that a particular debtor might fail to persuade a particular judge to hold a prompt hearing, notwithstanding constitutional requirements. But this possibility does not render the statute invalid on its face. A statute should not be stricken based upon a “worst case” scenario that “may never occur.” Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 512, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990). Nor is the statute unconstitutional as applied. It allows for a prompt post-deprivation hearing, but Audio Odyssey did not seek one.10 Audio Odyssey, then, had a
Fifth and finally, the Iowa statute sufficiently requires a plaintiff to substantiate the legal basis for obtaining an ex parte replevin, and we conclude that as a practical matter there was constitutionally adequate compliance—the essential message reached the judge. The Watertown framework speaks of “an affidavit accompanying the petition for the writ of attachment which contains facts alleged by a person with knowledge.” 830 F.2d at 1491. Absent advance notice and a hearing, due process requires that the creditor explain not only the debtor’s delinquency, but also the exigent circumstances that justify a summary deprivation. See Guzman, 516 F.2d at 130 (“In the absence of an assertion in the affidavit that the creditor believes that the property will be concealed, disposed of, or destroyed and the creditor’s interest therein lost or defeated, we do not believe that the ex parte issuance of the warrant of attachment is justified.... If such an emergency situation does not exist, the creditor’s interest in the property probably will not be impaired by a short delay to provide notice and a hearing to the debtor.“).
We discern no infirmity in the Iowa statute as written.
Nor are we greatly troubled by the replevin petition in this case. The Bank offered considerably more than a “bare assertion,” see Fuentes, 407 U.S. at 74, 92 S.Ct. 1983, that it was entitled to the collateral. The petition described and attached the note of $200,000 that Audio Odyssey had executed, explained Audio Odyssey’s obligations under the note, described and attached the Business Security Agreement and the extent of the Bank’s security interest, and, correctly or otherwise, specified various alleged delinquencies including $6,233.63 in monthly installments, failing to insure the collateral, failing to pay state payroll and sales taxes, and failing to provide the Bank with certain business records. Moreover, the petition explained the need for immediate action. Among other things, the Bank alleged that “harm... will result from the sale, transfer or assignment of the disputed property to the extent [that] such sale, transfer or assignment is fraudulent or in derogation of the plaintiff‘s rights in such property.” We need not rule that such boilerplate language is adequate by itself, because attorney Hofmann explained to the judge his specific concern that “collateral in which [the Bank] had a security interest in was in danger of being sold with the proceeds not going to satisfy their—the debts that were owed to them.” The Bank knew that Audio Odyssey was planning an “annual sale” the following day, and that much or all of the collateral was in danger of being sold. Hofmann’s oral statement adequately apprised the judge of this exigent circumstance.13
The only noticeable failing is that the petition was verified by the Bank’s attorney rather than “a person with knowledge.” See Watertown, 830 F.2d at 1491. This defect alone does not create a viable due process claim. Attorney Hofmann drafted the petition in reliance on what his client told him. There is no indication that a petition executed by a Bank official would have been narrower in scope or otherwise different from Hofmann’s, or that such a petition would not have recited the allegations essential to the Bank’s replevin claim (the debt, the security interest, the delinquencies, and the exigency). The Bank’s books apparently did reflect a deficiency, although plaintiff claims a deposit was misapplied. Without some plausible showing that a properly verified petition would have made a difference, we cannot say that its absence violated due process under these particular facts. See id. (“[T]he necessary procedural safeguards in a given case are determined by comparing the extent to which they further the defendant’s interest in avoiding a wrongful or arbitrary deprivation of his property with their negative effect upon the interest of the state in providing protective creditor remedies.“). More importantly, it must be emphasized that due process does not require any “particular form of procedure.” Mitchell, 416 U.S. at 610, 94 S.Ct. 1895 (citation omitted). Rather, the question is whether the protections afforded Audio Odyssey (and other replevin defendants in Iowa) are suffi-
We thus agree with the district court and with a summary statement by the Iowa Supreme Court, sustaining the constitutionality of the replevin statute. See Interfirst Bank of Dallas v. Hanson, 395 N.W.2d 857, 860 (Iowa 1986). We also agree with the district court that due process was observed in the seizure of the personal property in question. It may be, of course, that the Bank had no sound factual and legal basis for seeking replevin, which is a matter we do not decide. That will presumably be litigated in state or federal court in connection with a damage claim on the bond.
We have no need to approve the initial state court decision to issue an ex parte order having the effect of stopping Audio Odyssey’s “annual sale.” Even if we might suppose that discretion was poorly exercised, and that too much weight may have been given to the assumed risk of the collateral’s loss in the event of notice to the debtor, what is involved in this portion of the case is the ordinary risk of judicial error, not a substantial constitutional question of due process.
IV
The judicially unauthorized lockout of Audio Odyssey’s real property is a more troubling federal question, although perhaps less damaging.14 We must determine whether there is a triable claim that Sergeant Barton and Deputy Norris committed a constitutionally unreasonable seizure of the real property, whether the officers are entitled to qualified immunity, and whether the Bank and its attorneys conspired with the officers to violate Audio Odyssey’s Fourth Amendment rights (and whether they might prevail under some notion of “good faith” immunity). For the reasons set forth below, we reverse the grant of summary judgment on these claims.
A
The Fourth Amendment prohibits unreasonable searches and seizures by law enforcement officers, whether of a person or property. See Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir.1996). A “seizure” of property occurs whenever “there is some meaningful interference with an individual’s possessory interests in that property.” Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (citation omitted). We believe the officers seized Audio Odyssey’s premises by entering the store, ordering those inside to leave, arranging for the locks to be changed, and erecting “No Trespassing” signs, thereby excluding the company’s principals from the store’s property.
Somewhat less obvious is whether the seizure was objectively unreasonable. A seizure of property that is unsupported by a warrant or other court order is presumptively unreasonable within the meaning of the Fourth Amendment. See, e.g., id. at 68-69, 113 S.Ct. 538. The order and writ of replevin relied upon by Sergeant Barton and Deputy Norris did not authorize a seizure of Audio Odyssey’s real property. Rather, it directed the officers to seize various enumerated types of personal property located at a specific address. Although the writ and order listed a legal address, they did so only to describe the location of the items to be seized, specifically, “All inventory, fixtures, accounts, furniture, equipment and machinery on property described as follows [followed by legal description].” This language cannot reasonably be read to authorize a seizure of the electronics store—particularly in the context of a writ of replevin, which, time out of mind, has authorized the seizure of personal rather than real property.15 Presumably an officer may briefly secure real property for minutes or hours while seizing personal property located thereon, in order to maintain the peace or even to prevent customers or employees from absconding with the collateral. Compare Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (permitting temporary seizure of homeowner while officers obtained search warrant).16 But erecting (and failing to remove) “No Trespassing” signs, changing the locks, and giving the keys to the Bank far exceeded the scope of any temporary seizure that might be justified. Defendants do not even argue that the replevin writ and order, fairly construed, conferred a right to seize the real estate for the several days required to conduct an inventory and arrange for the removal of personal property. They do contend, however, that they acted reasonably.
Defendants’ reliance upon Johnson v. Outboard Marine Corp., 172 F.3d 531 (8th Cir.1999), is misplaced. There, we held that an erroneous seizure of personal property is not necessarily an “unreasonable” one, and that the officer in that case had a reasonable basis for seizing a boat and trailer that fell outside of a writ of execution. Johnson did not purport to immunize all errant seizures; rather, the question is whether the officer’s mistake is objectively reasonable. See id. at 536-37; Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir.1995) (“[T]he Fourth Amendment’s allowance for officers’ honest mistakes is limited to mistakes that are objectively reasonable.“). That is the same question we ask today. Our answer differs from that reached in Johnson because the facts of the two cases stand in sharp contrast. The writ of execution in Johnson authorized the seizure of “any and all personal property of the judgment debtor (a dissolved corporation) located at” the address of the corporation’s secretary. While executing the writ, an officer seized a boat and trailer that were later discovered to be the property of the corporation’s secretary and president rather than the corporation itself. Various circumstances not here
- The boat and trailer were not identifiable as property of one entity or another, and were the same sort of property handled by the judgment debtor in the course of its business.
- The officer had been told by a superior that, even if the property were not the corporation’s, the secretary of the corporation was not protected under state law from an execution to satisfy a judgment against the corporation. We tacitly accepted that as authorization similar to legal advice.
- The officer confronted the secretary when seizing the boat, and the secretary was unable to produce any documentation of ownership for the boat or trailer.
In short, the officer in Johnson relied upon specific facts creating a reasonable belief that the writ of execution authorized a seizure of the property at issue, while the officers in this case did not. An officer’s mere recitation of a mistaken belief does not make the mistake “reasonable” as a matter of law, and we cannot agree that the seizure of Audio Odyssey’s real property was “reasonable” under the Fourth Amendment.17
B
The more challenging question is whether the officers are entitled to qualified immunity. “In resolving a case in which the defense of qualified immunity has been raised, this Court must determine whether the appellees asserted a violation of a federal right, whether that right was clearly established, and whether a reasonable official in [the defendant‘s] position would have known that his conduct violated that right.” Walden v. Carmack, 156 F.3d 861, 868-69 (8th Cir.1998). We believe not only that Audio Odyssey has demonstrated a violation of a constitutional right, but that the right in question is well established, namely, the Fourth Amendment’s protection against seizure of one’s property in the absence of a warrant, an equivalent court order, or circumstances justifying a recognized exception to the warrant requirement. See id. at 872 (upholding denial of qualified immunity, where officer allegedly seized items outside the boundaries of that described in search warrant and did not posit a reasonable belief that the items were located within such boundaries).
Finally, we examine whether a reasonable officer in Sergeant Barton or Deputy Norris’s position would have known that the seizure at issue violated the right in question. The tests for Fourth Amendment legality and qualified immunity both use the term “reasonable,” but the two questions are distinct. A seizure comports with the Fourth Amendment if it is objectively reasonable; one way for a seizure to be objectively reasonable is for the officer to have a reasonable belief that a court order allows the seizure. See, e.g., Johnson, 172 F.3d at 536-37. Qualified immunity, on the other hand, somewhat expands the leeway already afforded by the substantive Fourth Amendment law. It may not be useful to ask whether an officer’s conduct is “reasonably reasonable,” but we do examine the conduct more deferentially at the qualified
Whatever measure of deference is due Sergeant Barton and Deputy Norris, it cannot immunize an error as significant as theirs. “Qualified immunity does not protect plain incompetence.” Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir.1995) (affirming denial of qualified immunity to officers who, among other things, erroneously executed a search warrant at 611 Adam Street rather than 611 Byrd Street); Wooley v. City of Baton Rouge, 211 F.3d 913, 926-27 (5th Cir.2000) (holding that officers who delivered child from mother to grandparents under court order awarding temporary custody to grandparents were not entitled to qualified immunity, where the order did not direct officers to effect a transfer of custody, and state law required a separate civil warrant for such transfers); Bins v. Artison, 721 F.Supp. 1034, 1038 (E.D.Wis.1989) (rejecting qualified immunity defense to due process claim and entering judgment for plaintiff, where officer seized plaintiff‘s racing car when executing judgment against other parties, without ascertaining car’s owner), vacated in part on other grounds, Nos. 90-1149, 90-1339, 1991 WL 10625 (7th Cir. Feb.4, 1991). The mere inclusion of Audio Odyssey’s legal address within a writ and order requiring the seizure of various enumerated items on the premises does not colorably justify a seizure of the premises themselves—even if one ignores the legal distinction between real and personal property, the purpose of a replevin, and the distinct possibility that the officers did not even harbor the claimed reasonable belief on the day in question.18 At the very least, a zealous creditor’s request for measures clearly exceeding those authorized by the court should have given the officers pause, either to consider their actions more carefully or to seek disinterested legal advice from the county attorneys they regularly consult. “Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate.” Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
We are aware that certain practical arguments can be asserted in favor of the real estate seizure. As the district judge and the dissent would have it, we also suppose that seizure of the premises may have been the “sensible” thing to do, at least while taking an inventory of the property. But to make this dispositive simply strong-arms away the unquestioned legal right of Audio Odyssey to enjoyment of the empty premises, however that may be valued at trial. It may be equally “sensible” to create a path across the vacant, unused land of another when needed, even though consent has not been given. But the right of expropriation and self-help is clearly limited. There was no reason to doubt that Audio Odyssey’s legal right to its property was being invaded without judicial approval, for an indefinite period, and for an unauthorized purpose—be it to
C
A further aspect of the case concerns the length of the wrongful seizure for which the officers and the other defendants are potentially liable. Audio Odyssey contends that the premises were seized for six weeks; Deputy Norris changed the locks and erected “No Trespassing” signs on July 14, 1995, and Dincer did not regain access to the premises until the court’s order of August 31, 1995—despite the certified letter sent to the Sheriff’s Department and the meetings between attorneys from Audio Odyssey and the Bank, during which demands for the real estate were made. Audio Odyssey contends that defendants are liable for the entirety of the company’s exclusion from the premises, as well as the foreseeable consequences of that exclusion—including the store’s failure. Defendants insist that the plaintiffs should have more promptly sought a judicial remedy, and we agree that Audio Odyssey could have gone to court very quickly to seek immediate return of its real estate. In addition, defendants argue that plaintiffs could have posted a bond to have possession restored, and the record suggests that Audio Odyssey claims to have been financially able to do so.
The issues include whether the defendants proximately caused Audio Odyssey’s extended injuries, and beyond that, whether the injuries are more fairly attributable to plaintiff’s failure to promptly mitigate damages. Those are jury questions. “Causation is generally a jury question unless, in a particular case, the question is so free from doubt as to justify taking it from the jury.” Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir.1994) (citation and quotation omitted). The possibility of an intervening cause does not generally defeat an inference of proximate cause as a matter of law. See Trudeau v. Wyrick, 713 F.2d 1360, 1367 (8th Cir.1983). Here, the question of who caused the extended lockout is not free from doubt.20
D
We next consider the responsibility of various private defendants for seizing the real property. Recovery is available under section 1983 only for violations of federal rights committed by persons acting “under color of state law.” Private conduct is actionable under section 1983 under two conditions. First, the constitutional deprivation at issue “must be caused by the exercise of some right or privilege created by the State...”
Audio Odyssey has clearly made a sufficient showing to survive summary judgment. A reasonable jury could find a “meeting of the minds” between Bank’s loan officer and vice-president Bradley and attorney Hofmann, on one hand, and Sergeant Barton and Deputy Norris, on the other, to seize Audio Odyssey’s real estate even though the state court ordered no such thing. Indeed, on the present record, the idea appears to have been Bradley’s to begin with.
We are unpersuaded that the Bank, Bradley, and Hofmann are entitled to any sort of immunity. Qualified immunity does not extend to private defendants who conspire with public officials to violate constitutional rights—at least in the replevin context. See Wyatt, 504 U.S. at 168-69, 112 S.Ct. 1827. Wyatt reserved the question of whether such private defendants might be entitled “to an affirmative defense based on good faith and/or probable cause[,] or that § 1983 suits against private, rather than governmental parties could require plaintiffs to carry additional burdens.” Id. at 169, 112 S.Ct. 1827. We have not squarely addressed this question, although other circuits have answered it affirmatively. See, e.g., Jordan v. Fox, Rothschild, O‘Brien & Frankel, 20 F.3d 1250, 1276 (3d Cir.1994); Wyatt v. Cole, 994 F.2d 1113, 1118 (5th Cir.1993); Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir.1996). The precise scope of “good faith” immunity accorded by these cases is unclear.
We need not decide whether to recognize such a defense, or define its scope, because doing so would not assist the private defendants. Any immunity that might apply would be no broader than the qualified immunity accorded public officials. See Wyatt, 504 U.S. at 167-69, 112 S.Ct. 1827 (discussing rationale of public immunity and of extending it to private parties). Hofmann and the Bank’s view of the scope of the court’s order is no more reasonable than what is now claimed by Sergeant Barton and Deputy Norris.21 If Sergeant Barton and Deputy Norris are not entitled to qualified immunity, then those who conspired with them are not entitled to its private sector analogue.
As a separate basis for affirmance, Hofmann and his firm offer an “Assignment of Real Estate Lease and Agreement” signed
V
Audio Odyssey’s remaining assignments of error are without merit. First, there is no viable claim under either section 1983 or otherwise against SBA loan officer Roger Hoffman. On behalf of the SBA, Hoffman authorized the Bank to accelerate Audio Odyssey’s loan and to seek a replevin. This act alone does not create liability—regardless of whether Hoffman is alleged to have conspired with the state officials to violate Audio Odyssey’s constitutional rights, or whether he is charged with violating them himself as a federal official. The replevin of the personal property was not unconstitutional in the first place. As for the real property, there is no contention that Hoffman had advance knowledge of any scheme to seize Audio Odyssey’s premises without court authorization, or that he participated in such a scheme. Accordingly, there was no “mutual understanding” between Roger Hoffman and the other defendants to violate Audio Odyssey’s rights. Miller v. Compton, 122 F.3d 1094, 1098 (8th Cir.1997). At most, Hoffman’s decision might have breached the SBA’s agreement with Audio Odyssey and the Bank, but that is not a constitutional violation and cannot support a viable claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Buford v. Runyon, 160 F.3d 1199, 1203 n. 6 (8th Cir.1998) (stating that Bivens claims lie “for violations of constitutionally protected rights“); Schlake v. Beatrice Production Credit Assoc., 596 F.2d 278, 281 (8th Cir.1979) (no constitutional violation “when a governmental agency breaches a contract it has entered into in the commercial world“).
We also reject the supervisory claims against Scott County Sheriff Michael M. Bladel. The suit against Bladel in his official capacity is a suit against the municipality he serves. See Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 905 (8th Cir.1999), cert. denied, 528 U.S. 1157, 120 S.Ct. 1165, 145 L.Ed.2d 1076 (2000). The County may be liable for unconstitutional acts that implement a county policy or are invoked pursuant to a governmental custom; the custom or policy must be the “moving force” behind the constitutional violation. Patzner v. Burkett, 779 F.2d 1363, 1367 (8th Cir.1985). Audio Odyssey claims that Bladel did not
Equally without merit is the supervisory claim against Sheriff Bladel in his individual capacity. Sheriff Bladel can be liable for Deputy Norris and Sergeant Barton’s constitutional violation only if he “directly participated in the constitutional violation, or if his failure to train or supervise the offending actor caused the deprivation.” Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir.1997) (citation and quotation omitted). The Sheriff did not know about this replevin until he was notified of this lawsuit, and there is no contention that he directly participated in the writ’s execution. To be individually liable for failing to train his subordinates, Sheriff Bladel must have “received notice of a pattern of unconstitutional acts committed by subordinates ..., demonstrated deliberate indifference to or tacit authorization of the offensive acts ..., [and] failed to take sufficient remedial action” and the failure must have proximately caused Audio Odyssey’s injury. Id. As explained above, there is no showing of previous illegalities that place Sheriff Bladel on the requisite notice. The supervisory claim against him necessarily fails. A similar claim against Sergeant Barton for improperly supervising Deputy Norris fails for the same reason.
VI
For the foregoing reasons, the judgment of the district court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.23
LOKEN, Circuit Judge, dissenting in part.
As the Court‘s thorough opinion makes clear, hindsight suggests that all the parties to this July 1995 dispute acted unreasonably. The Bank sought a replevin or-
In my view, the key to unraveling these events, at least for purposes of Audio Odyssey‘s § 1983 claims, lies in the breadth of the replevin order—“All inventory, fixtures, accounts, furniture, equipment and machinery” found on the store premises. The premises were part of a shopping center. Audio Odyssey was a tenant, not the owner, of those commercial premises. Audio Odyssey‘s only interest in possession of the premises was to operate its retail store. If the store was stripped of all the personal property listed in the court order, it would obviously be inoperable, at least until Audio Odyssey replaced the inventory, fixtures, furniture, equipment, and machinery.
The replevin order gave the Bank the right to immediate possession of all the named personal property. If the order thereby authorized the County Sheriffs to prevent Audio Odyssey from selling the replevied property before the order could be executed—and the court now agrees that it did—then Audio Odyssey‘s right as a tenant to continuing possession of the store premises was of no immediate value. That is why it was reasonable for the Bank as secured creditor to urge that Audio Odyssey‘s store operations cease until the replevin order could be executed. That is why it was objectively reasonable for Sergeant Barton to review the breadth of the replevin order and conclude that it authorized the County Sheriffs to close the store for a reasonable period of time. And that is why Audio Odyssey made no effort to reaccess the store premises until August, after its debtor-creditor negotiations with the Bank had proven unsuccessful.
The district court thoroughly analyzed the applicable constitutional principles and, mindful of the practical considerations that underlie any Fourth Amendment reasonableness inquiry, concluded that defendants are entitled to summary judgment dismissing all § 1983 claims. Applying its own more selective hindsight, the court reverses in part, thereby casting doubt on the accuracy of the Supreme Court‘s prediction that, when creditors obtain state court orders before seizing property, the Fourth Amendment “should not foment a wave of new litigation in the federal courts.” Soldal v. Cook County, 506 U.S. 56, 72, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). In my view, permitting this case to proceed further in federal court is both wrong and regrettable. Accordingly, I respectfully dissent from Part IV of the court‘s opinion. I would affirm the judgment of the district court.