Cofield v. Randolph County Commission
90 F.3d 468
11th Cir.
1996
Check Treatment

*1 making its discretion in this deci- not abuse

sion.

AFFIRMED. Cofield,

Roy COFIELD, L. Rita F. Plaintiffs-Appellants, COMMISSION, COUNTY RANDOLPH entity; Randolph County governmental Department, governmental Sheriffs entity, Defendants, Hancock, Ricky employee the Ran an County dolph Ran Commission and/or County dolph Department; Sheriffs Danny Chevrolet, Inc.; Danny Belyeu, individually capacity and in his Danny Belyeu Chevrolet;

as President Danny Be employee Chevrolet, Danny lyeu Inc., Be and/or A, B, lyeu; Defendant(s), Fictitious or C, Defendants-Appellees.

No. 95-6026. Appeals, United States Court Eleventh Circuit.

Aug. Koon, - U.S. at -, guideline did cable not take it into account. See 116S.Ct. at 2045. *2 Smith, John G. Harper, Schmitt & Steven Schmitt, Tallahhee, AL, F. appellants. for Webb, P.C., Eley, Kendrick E. Webb & Harmon, Chandler, Bart William Robert AL, Montgomery, Ricky for Hancock. TJOFLAT, BLACK, Judge, Before Chief Judge *, Circuit and GOODWIN Senior Judge. Circuit TJOFLAT, Judge: Chief

I. controversy in this case stems from an

automobile transaction between a Chevrolet dealership buyers. and husband and wife buyers, Roy Cofield, pur- and Rita were chasing Danny a new Chevrolet Blazer from Belyeu part Chevrolet. purchase As of the price, the dealership Cofields traded in to the car, truck, pick-up camper and a trailer. collapsed The transaction camper when the model, turned out to be a 1978 rather than a (which camper model is how the sale)— paperwork described in the on the and, thus, considerably was of less value than dealership expected.1 Employees dealership of the discovered day the mistake the same the deal was Danny Belyeu, closed. the owner of the dealership, decided to cancel the transaction by “repossessing” returning and Blazer (the camper, Cofields consideration automobile, truck) pick-up giv- and was, however, en for it. concerned might forcibly resist repossession of the Blazer. He therefore employees instructed his to contact the local * Goodwin, Blazer, price camp- Honorable Alfred T. Senior U.S. Circuit of the the trade in of 1987 Circuit, Judge sitting by designa- for the Ninth dispute er. The Cofields do not differ- tion. ence in value between the two models amounted to several thousand dollars. Whether the Co- represent 1. The Cofields claim that did not intentionally camper dealership fields deceived the is of as a 1987 model. Nonetheless the included, part purchase transaction as no moment. claims pendent state law the Cofields’ proceeding with the dice office

sheriffs defendants. so, and the other against Hancock They did repossession. accompanied two Be- Ricky Hancock Sheriff granting of appeal the The Cofields Bull- Evans and John employees, lyeu Amend summary judgment on the Fourth *3 ock, residence. to the Cofield We review Due Process claims. ment and back to take the Blazer role was Bullock’s summary judg grant court’s the district accompanied Ev- dealership; Hancock Reserve, to the v. Town Ltd. ment de novo. See Cir.1994), house. of the Cofield front door 1374, ans to the 1377 Longboat Key, 17 F.3d — the Blazer had dispute whether parties denied, U.S. -, 115 S.Ct. rt. ce Deputy or after premises (1995). the left 729, 130 L.Ed.2d 633 doorbell. There rang the Cofields’s Hancock however, ob- that the Cofields dispute, II.

is no of the Blazer from jected removal immuni attending qualified “The law premises. their Cunningham, ty Leeks v. is well-settled.” (11th Cir.1993). dealership’s repossession of Govern Following the F.2d 997 Blazer, action brought enjoy immunity from civil dam the Cofields ment officials Danny Belyeu, violate dealership, conduct does not against ages provided “their Commission, County statutory Randolph clearly constitutional or established Department, person should Randolph County rights Sheriffs a reasonable of which Id., complaint citing Fitzger Their con- v. Deputy Hancock. Harlow and have known.” I, 2727, 2728, ald, 800, 818, Only portion a of count counts.2 tained ten U.S. (1982). Hancock, ‘right’ is at issue to be against Deputy “For a brought 73 L.Ed.2d 396 established, portion, In that contours of the appeal. ‘[t]he in this against in money damages sufficiently Hancock clear that a reason sought right must be under 42 U.S.C. capacity understand that what he is his individual officialwould able ” right.’ Rodgers of the Fourth and v. Hors alleging doing § violations violates that (11th Cir.1994), citing to the United ley, Amendments Fourteenth they Specifically, al- Creighton, Constitution. Anderson States 3034, 3039, a “seizure” of Hancock effected leged that 107 S.Ct. in of the Fourth automobile violation their taking that the Appellants theorize “procedur- deprived them of

Amendment and clearly wrongful insofar as it Blazer was of the Fourteenth process” al due violation (i.e., that the dealer- contravened state law Amendment.3 repossess the vehicle ship was not entitled to appellants had not defaulted un- plead answer the de- because Deputy Hancock’s contract). Moreover, they immunity respect to der the sales fense of claim, dealership was not Hancock knew the court claims. The district the constitutional dealership repossess, judgment to he knew summary on that entitled granted Hancock repossess, and planning to I. Because this was nevertheless ground dismissed count and They argue that against any helped them do so. pending he left no federal claims their thereby a “seizure” of defendant, preju- Hancock effected the court dismissed without complaint against the defendants under Ala. a claim all amended as 2. We refer to the Cofields' I, 6-5-370, pertained provides "complaint.” In count which a civil cause of their Code which Hancock, they alleged solely Deputy violations felony. a acts that also constitute action for Amendments to the and Fourteenth of the Fourth V, In count which States Constitution. United deprived alleged 3. Count also that Hancock I Hancock, solely pertained also equal protection of the laws Cofields of supervise” alleged in violation of Ala- "failure to Amendment. The violation of the Fourteenth II, applied only to In count which bama law. summary judg- granted court Hancock district Chevrolet, they alleged Danny Belyeu breach of under claim as well as the claims ment on that of Alabama law. In counts contract in violation III, IV, VI, and the Due Process the Fourth Amendment VII, IX, applied to all of and which appeal, the Cofields do not con- Clause. In this defendants, negligence, they alleged trespass, protec- disposition equal their test the court’s conversion, conspiracy, outrage, all in viola- claim. tion alleged Finally, count VIII tion of Alabama law. property “wrongful.”4 noted, in violation of the Fourth Amend- As Additionally, they argue, partic- ment. his then, appellants’ argument fails at the first taking ipation in the converted what would step; Hancock could not have known the “self-help otherwise have been an instance of wrongful. of the Blazer was by repossession” levying property into a Appellants suggest deputy also that a law enforcement officer without a writ of attachment, procedural in violation of simply sheriff during cannot be component of the Due Process Clause. self-help repossession. instance of if Even lawful, they argue, if deputy Appellant’s argument fails at the present, sheriff is becomes step. provides first The Alabama Code a “seizure” the state. *4 agreed party “[u]nless otherwise a secured contend, if present repossession he is the is right possession has on default the to take of longer and, no an instance of help” “self taking possession the collateral. In a se accordingly, preceded by judicial must be party may proceed judicial cured without process. Appellants pointed have us to no process if this can be done without breach of cases, cases, and we have found no that peace....” § the Ala.Code 7-9-603 support “default,” proposition. either The Code does not define the word Soldal v. Cook leaving parties security this to the County, 56, 538, 506 U.S. 113 S.Ct. 121 agreement and to the common law. 4See (1992), appellants rely L.Ed.2d 450 on which Summers, James J. White & Robert S. Uni heavily, readily distinguishable. In (4th 1995). § form Commercial Code 34-2 ed. deputy sheriffs assisted in a forcible eviction In particular the absence of a definition that patently was unlawful.5 Id. at adopted by parties, ordinary meaning the 113 S.Ct. at 541-42. pay.” of “default” is “failure to 9A Ron See Anderson, A. ald Uniform Commercial Code Finally, think it plain we that an (3d 1994). § 9-501:27 ed. rev. We think it presence during officer’s mere a lawful re consideration, self-evident that of failure possession Indeed, is of argu no moment. case, which is what occurred in this consti ably presence an officer’s prevent “mere a pay. tutes failure to peace” breach of the would not even consti Appellants point out that the “Sales give tute state action sufficient to the court Contract,” which contains the standard de subject jurisdiction. matter See Booker v. clauses, repossession fault and does not itself (11th Atlanta, City them) any representation (by include as to Cir.1985). suggest While our cases that age camper, and that the “Vehicle might state action be if an officer Invoice,” represen which does contain such id., repossession, were to facilitate a see see tation, any repos does not include default or Chrysler Corp., also Menchaca v. Credit documents, they session clauses. The two Cir.), denied, F.2d cert. argue, wholly separate. are We do not ad (1980), argument. dress the merits of this Failure testimony places Cofields’s own the Blazer of consideration can constitute a default and off, exiting, they premises or the time thereby can repossess entitle a creditor to repos reached front door their to contest the Accordingly, the collateral. it could not have Deputy implication been “clear” to Hancock that repos- session. The is that the Furthermore, Appellants point early day point, 4. to the fact that in the even were Soldal on it was following repossession, Deputy Hancock re- gave handed well down after the events that rise turned to their house and filled out a “stolen Thus, to this lawsuit. even if it established that a This, report” vehicle for vehicle. con- deputy presence repossession sheriff's at a lawful tend, supports proposition that he knew the repossession somehow that into a transforms wrongful. persuaded. was We are not "seizure,” proposition Fourth Amendment argued strenuously The Cofields had Han- —to "clearly was not established” for immu- cock and others—that were not in default. nity purposes when the in this case obligingly That Hancock filled out sto- occurred. report len vehicle is of no moment. claims that his assistance the Co- Hancock completed before had been session peace,” solely “keeping purpose for the any with Hancock.6 contact fields by the testimo- that claim is contradicted ny Hancock’s aid. who solicited III. Hancock that he never told Evans testified anything that the re It is but clear Cofields, nor did he he was fearful of the by Danny Belyeu Chev possession effected presence that wanted Hancock’s indicate he Moreover, according to rolet was unlawful. security purposes. for facts, re version of the appellant’s own yet even if Hancock had not completed appears to have been possession the Cofields assisted the when Finally, we prior Hancock’s involvement. door, testified that opened their holding precedent found no have go Roy attempted to after the Blazer Cofield (or after) presence an officer’s mere so, being he did as it was driven off. When repossession can self-help lawful instance Roy that if interfered Hancock informed he Fourth and to a violation of the amount would be arrested. with the he Amendments. Thus we conclude Fourteenth could conclude from A reasonable fact finder his ac Hancock could not have known just “keep not this evidence that Hancock did anyone’s might violate constitutional tions *5 peace,” in fact with the assisted immunity. rights. He is entitled to repossession. AFFIRMED. participated in in the re- If Hancock fact clearly possession, his actions violated estab- GOODWIN, Judge, Senior Circuit people right “The to be lished law. dissenting: houses, persons, papers, and secure in their summary judgment, reviewing a we When effects, against unreasonable searches and of fact violated_” must resolve all reasonable inferences seizures, shall not be Amend- nonmoving party. v. in favor of the Goddard ment Constitution of the United States. Cir.1988). Urrea, Supreme purpose The Court clarified the question fact Because I believe a of material in v. Jacob of the Amendment United States (whether exists, merely Hancock was there sen, 109, 113, 1652, 1656, 466 U.S. S.Ct. the law “keep peace”); and because (1984): clearly that a established sheriff without was lawfully protects types expecta- of not This text two participate a court order could “searches,” tions, property, respectfully involving I the other private the seizure of one an “seizures.” A “search” occurs when dissent. expectation privacy society pre- is of majority that Hancock could The concludes infringed. pared reasonable is to consider repossession be- not have assisted with the property A “seizure” of occurs when there already exiting cause the Blazer meaningful some interference with is property at Cofields’ the time possessory in that individual’s interests majority opin- reached their front door. See property. does not account ion 471. This conclusion already inapplica- found pro- Hancock had The district court Jacobsen for the assistance dealing with the through agreement accompany ble as it was a criminal case vided his cocaine, of and the Cofields’ seizure employees to the Co- seizure Chevrolet personal property. security provided private was a of field house. Without However, protects Belyeu employ- the Fourth Amendment by presence, Hancock’s criminally exclusively people,” to at- “the not “the may not have been emboldened ees charged.” repossession. tempt the course, presence a Fourth or aid at a effects and Soldal we in Booker only requisite state ac- by were concerned tion to establish that his the state or Amendment "seizure” subject jurisdiction. Nei- matter presence into or aid transforms that liability supports ad- ther case the theories of "levying” property. i.e., by that an officer’s vanced the Cofields— presence argued application that the Once the of law enforcement offi-

The defendants necessary, “self-help” longer ap- Amendment to cases cers is no of the Fourth clearly plies judicial process required. until not established law kind was opinion in Supreme Court’s confirmed Assuming allegations the Cofields’ are Ill., County, Soldal Cook true, decide, an issue for the trier of fact to In L.Ed.2d 450 Hancock’s assistance wished to remove a tenant’s trailer landlord the Blazer violated established pay park trailer for failure to rent. from the Hence, Fourth Amendment law. Hancock’s landlord did not wish to wait for the not, law, protected actions are as a matter of necessary papers, eviction and asked the by qualified immunity. “self-help” department to assist in a sheriffs respectfully I dissent. accompanied The sheriff the land eviction. park, and allowed the trailer to be lord premises. from held

removed Court within the that a “seizure” occurred Amendment, meaning remand of the Fourth ing to determine if the seizure was the case

“reasonable.”

It matters not that Soldal was decided not after the seizure in this case. We need GEORGE, George, F. Dale Marlene Theo Supreme explicitly to de- wait for the Court Gleiter, Gleiter, dore P. D. Caroline “clearly clare law established” McLaurin, John D. Marlene M. McLau finding unprotected by qualified its violation rin, Neiderschmidt, Gene H. T. Viola immunity. did not claim to be fash- Soldal Neiderschmidt, Sandvick, Nancy John J. *6 ioning contrary, law. To the the Court new Sandvick, Pietsch, Jr., Betty E. Vincent long holding its fell within a stated Pietsch, Johns, William S. Lela H. Jacobsen, precedent, including line Johns, Shifano, Henry A. Victoria P. recognizing 1652. While U.S. S.Ct. Tutchtone, Wright, Maggie M. Robert emphasis placed on that a new had been Becks, Wright, James A. Helen B. protection privacy, the amendment’s Becks, Muldowney, T. Plain Jean suggestion “[t]here Court stated was no tiffs-Appellants, emphasis out that this shift had snuffed previously recognized protection for property under the Fourth Amendment.” STATES, Defendant- The UNITED at 545. Appellee. majority distinguish seeks Soldal Nos. 94-5074. “patently it involved a unlawful” because Appeals, States Court of United majority opin. at 471. Howev- eviction. See Federal Circuit. er, comparative lawlessness of the two cases, legitimate is elusive. In both seizures July seizures, civil cause existed for the judicial process lacking. requisite availability “self-help” repossession consequence. case is of no

Belyeu’s apparently friendly relations permitted “self-help”

the sheriff exercise augmented character of self- to take on the provides “In help. The relevant law party may possession a secured [of collateral] judicial process this can proceed without if ” peace.... breach be done without added). (1993) (emphasis § 7-9-503 Ala.Code