Meyers v. Redwood City

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIZABETH MEYERS; MILLIE 

ROVETTA,

Plaintiffs-Appellees,

v.

REDWOOD CITY, a municipal entity

organized and existing pursuant to

the laws of the State of California;

STEVE DOWDEN, individually and in

his capacity as a law enforcement No. 03-15872

officer with the Redwood City

Police; CHRISTINE O’KEEFE,  D.C. No.

CV-02-01475-TEH

individually and in her capacity as OPINION

a law enforcement officer with the

Redwood City Police Department,

Defendants-Appellants,

and

TRI CITY RECOVERY; SAN MATEO

EMPLOYEES CREDIT UNION; STEVEN

A. BRUNO,

Defendants.



Appeal from the United States District Court

for the Northern District of California

Thelton E. Henderson, District Judge, Presiding

Argued and Submitted

June 18, 2004—San Francisco, California

Filed March 10, 2005

3157

3158 MEYERS v. REDWOOD CITY

Before: Donald P. Lay,* Michael Daly Hawkins, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

*The Honorable Donald P. Lay, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation.

3160 MEYERS v. REDWOOD CITY

COUNSEL

Joseph C. Howard, Jr. and Todd H. Master, Redwood City,

California, for the petitioners-appellants.

Robert R. Powell and Douglas D. Durward, San Jose, Califor-

nia, for the respondents-appellees.

MEYERS v. REDWOOD CITY 3161

OPINION

BYBEE, Circuit Judge:

Elizabeth Meyers and Millie Rovetta (collectively, “Plain-

tiffs”) brought suit under 42 U.S.C. § 1983 against police offi-

cers Steve Dowden and Christine O’Keefe and Redwood City

(collectively, “Defendants”) for violating their Fourth and

Fourteenth Amendment rights during a dispute over a vehicle

repossession. Plaintiffs allege that the Redwood City police

officers, acting under color of state law, unlawfully intervened

in a vehicle repossession and violated their constitutional

rights to due process and to be free from unreasonable

searches and seizures. This is an interlocutory appeal brought

by Defendants from a denial of a motion for summary judg-

ment based upon qualified immunity. Defendants claim that

they did not violate the Plaintiffs’ constitutional rights and, in

the alternative, that those rights were not clearly established

and Defendants have qualified immunity from suit. We con-

clude that Defendants did not violate the Plaintiffs’ constitu-

tional rights.

I. BACKGROUND

The California Commercial Code provides a right of repos-

session for secured creditors. Section 9609 states that “[a]fter

default, a secured party may . . . [t]ake possession of the col-

lateral . . . [w]ithout judicial process, if it proceeds without

breach of the peace.” CAL. COM. CODE § 9609(a)(1), (b)(2).

The California Business and Professional Code states that,

with respect to vehicles, “a repossession occurs when the

repossessor gains entry to the collateral.” CAL. BUS. & PROF.

CODE § 7507.12. However, police who aid a self-help

repossessor may be liable under Section 1983,

not only when there has been an actual “taking” of

property by a police officer, but also when the offi-

cer assists in effectuating a repossession over the

3162 MEYERS v. REDWOOD CITY

objection of a debtor or so intimidates a debtor as to

cause him to refrain from exercising his legal right

to resist a repossession. While mere acquiescence by

the police to “stand by in case of trouble” is insuffi-

cient to convert a repossession into state action,

police intervention and aid in the repossession does

constitute state action.

Harris v. City of Roseburg, 664 F.2d 1121, 1127 (9th Cir.

1981).

Plaintiff Meyers financed a Lexus through the San Mateo

County Employees Credit Union (“Credit Union”). When she

became delinquent in those payments, the Credit Union hired

Tri-City Recovery (“Tri-City”) to repossess Meyers’s vehicle.

Tri-City in turn hired Steve Bruno to effect the actual repos-

session. On April 19, 2001, at three o’clock in the morning,

Bruno knocked on the front door and demanded the keys to

Meyers’s car. Meyers attempted to explain that there was

already a valid arrangement for payment, but Bruno informed

her of his right to take the car and continued to demand the

keys to the vehicle. A heated argument ensued, as Meyers

informed Bruno that he was trespassing and asked him to hold

off repossession for a few hours until she could call her insur-

ance company and the Credit Union to resolve the problem.

Bruno refused this request and continued to demand the keys

and insist that he was taking the car.

Bruno left the doorstep and proceeded to circle the car, pre-

sumably looking for a way into the vehicle. Meyers grabbed

her keys and headed towards the car to drive away. Meyers

alleges that, at that point, a scuffle occurred in which Bruno

lunged at her, grabbing her by her waist and injuring surgical

scars from her recent caesarian section as he lifted her off her

feet. After Bruno released Meyers, Meyers circled the Lexus

in an attempt to open and lock the car door before Bruno

could make it to the door. Meyers opened the car with her

remote control and managed to get into the driver’s seat.

MEYERS v. REDWOOD CITY 3163

Before she could close the door, however, Bruno blocked her

efforts to close the door, so that Meyers was halfway in the

driver’s seat. Bruno allegedly attacked her, trying to remove

her forcefully from the car by pulling at her arms, thigh, and

head. Meyers’s mother, Rovetta, then ran up behind Bruno to

grab his belt and pull him off her daughter. Bruno stomped on

Rovetta’s foot and threw her into the nearby bushes, and

Rovetta grabbed Bruno around the neck.

During this melee, Meyers started the car and backed it part

way down the driveway before catching the open door on a

bush. Bruno yelled to his companion to block the Lexus in the

driveway with another vehicle at the scene. Meyers screamed

for her father to get his shotgun, at which point Bruno called

911. Officer O’Keefe and six other unnamed officers

appeared shortly and separated Bruno from the Plaintiffs.

Officer O’Keefe interviewed both parties to ascertain what

had occurred. Plaintiffs exhibited their injuries and explained

their version of the events. Bruno showed the police his iden-

tification and informed them that he was hired to repossess

Meyers’s car and had already gained entry into the car. He

told them that he had used a slim jim tool to gain access to

the Lexus, and that after he had entered the vehicle he had

approached Meyers’s house to ask her to remove her property

from inside the Lexus. He told police that Plaintiffs physically

attacked him, and the officers noted that both his chest and

arms were scratched and bleeding. Both Meyers and Bruno

showed the officers paperwork purporting to establish their

right to the car.

At some point Bruno told the officers that he wanted to

effect a citizen’s arrest against Plaintiffs for assaulting him.

Plaintiffs informed the officers that they, too, wished to effect

a citizen’s arrest against Bruno for assault and trespass. Offi-

cer O’Keefe satisfied herself that Bruno had been authorized

to repossess the vehicle and asked Bruno something to the

effect of, “Is there any way we can resolve this situation

3164 MEYERS v. REDWOOD CITY

peacefully?” Bruno stated that he would not press charges if

Plaintiffs would let him take the vehicle away. According to

the complaint, Officer O’Keefe went to the Plaintiffs and told

them “It looks like this is what we are going to do here, either

you are going to let [Bruno] take the car, or we are going to

arrest you.” Plaintiffs allege that they were “incredulous” and

insisted on speaking to a police sergeant. Officer Dowden was

summoned. After being apprised of the situation, Dowden

relayed to Plaintiffs that giving the car to Bruno was their

only option to avoid arrest. Plaintiffs, feeling they had no

choice, agreed to let Bruno take the car.

Meyers and Rovetta brought suit against Redwood City,

Officers Dowden and O’Keefe, Tri-City, Bruno, and the

Credit Union for violation of their constitutional rights and for

state tort claims for battery, infliction of emotional distress,

false imprisonment, and trespass. Meyers and Rovetta later

stipulated to dismiss the § 1983 claims against Tri-City,

Bruno, and the Credit Union. The municipal Defendants filed

a motion for summary judgment, arguing that Plaintiffs had

not shown that Defendants violated their constitutional rights,

and that even if there was a constitutional violation, Defen-

dants were entitled to qualified immunity.

The district court denied the Defendants’ motion. The court

began with the observation that California permits “self-help”

repossession “but only if the repossession ‘proceeds without

breach of the peace.’ ” (quoting CAL. COM. CODE

§ 9609(b)(2)). The district court found that there were “sub-

stantial material disputes of fact as to what occurred” before

and after the officers arrived but that, viewing the disputed

facts in the light most favorable to the Plaintiffs, there was a

breach of the peace and Bruno had no right to repossess the

car. Relying on our decision in Harris, the district court held

that “[w]hile the police may simply ‘stand by’ in case of trou-

ble, they cannot intervene and aid in the repossession, since

doing so converts the possession into ‘state action,’ and the

state may not repossess a debtor’s property without affording

MEYERS v. REDWOOD CITY 3165

due process.” (citations omitted). The court found that Plain-

tiffs presented evidence that, if believed by a jury, the officers

“took sides in the repossession dispute after improperly con-

cluding that the repossession was valid notwithstanding the

breach of peace.” According to the court, the officers misused

their authority by intervening to assist Bruno or by intimidat-

ing Meyers so that she refrained from resisting the unlawful

repossession. The court also found that the law governing

repossession of cars was well established to defeat Defen-

dants’ claim of qualified immunity. The district court denied

Defendants’ motion for summary judgment on the grounds

that there was evidence of a constitutional violation and that

Plaintiffs’ constitutional rights were so clearly established by

Harris that the Defendants were not entitled to qualified

immunity.

II. DISCUSSION

There are two questions presented by the Defendants’

motion for summary judgment in this § 1983 case. Both are

questions of law. The first is whether their actions violated the

Plaintiffs’ constitutional rights. We must consider whether,

“[t]aken in the light most favorable to the party asserting the

injury, . . . the facts alleged show the officer’s conduct vio-

lated a constitutional right.” Saucier v. Katz, 533 U.S. 194,

201 (2001). “If no constitutional right would have been vio-

lated were the allegations established, there is no necessity for

further inquiries concerning qualified immunity.” Id.

The second question is, assuming Defendants’ actions vio-

lated the Plaintiffs’ constitutional rights, whether those rights

were so “clearly established,” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982), that “in the light of pre-existing law the

unlawfulness [of the challenged action was] apparent,” Ander-

son v. Creighton, 483 U.S. 635, 640 (1987), and the officers

should answer in tort. The officers are immune unless “the

law clearly proscribed the actions” taken. Mitchell v. Forsyth,

472 U.S. 511, 528 (1985). Accordingly, qualified immunity

3166 MEYERS v. REDWOOD CITY

protects those officials “who are required to exercise their dis-

cretion,” Butz v. Economou, 438 U.S. 478, 506 (1978), and

who “routinely make close decisions in the exercise of the

broad authority that necessarily is delegated to them.” Davis

v. Scherer, 468 U.S. 183, 196 (1984).

Where the constitutional question is a close one, we might

prefer to turn to the second, and easier question, whether the

officers violated a clearly established constitutional right. The

Supreme Court in Saucier, however, made clear that we must

determine whether a constitutional right was violated first “to

set forth principles which will become the basis for a holding

that a right is clearly established.” Saucier, 533 U.S. at 201.

Otherwise, “[t]he law might be deprived of this explanation

were a court simply to skip ahead to the question whether the

law clearly established that the officer’s conduct was unlawful

in the circumstances of the case.” Id. at 201. See Hell’s Angels

Motorcycle Corp. v. McKinley, 360 F.3d 930, 933 (9th Cir.

2004). See also Brosseau v. Haugen, 125 S. Ct. 596, 598-99

(2004) (per curiam). We are bound by the Court’s decision in

Saucier and our own subsequent decision in Hell’s Angels to

decide the constitutional question first and then address quali-

fied immunity. Although we conclude that the Defendants did

not violate the constitutional rights of the Plaintiffs, given the

complexity of the question, we will address the easier ques-

tion of qualified immunity as well. See Brosseau, 125 S. Ct.

at 598 (“express[ing] no view as to the correctness of the

Court of Appeals’ decision on the constitutional question” but

finding officer entitled to qualified immunity).

A

[1] Plaintiffs allege that the Defendants violated their con-

stitutional rights under the Fourth and Fourteenth Amend-

ments. In order to prevail on their due process claim, the

Plaintiffs must demonstrate that the Defendants, while acting

under color of state law, deprived Plaintiffs of their property

without due process of law. U.S. CONST. amend. XIV, § 1. See

MEYERS v. REDWOOD CITY 3167

Fuentes v. Shevin, 407 U.S. 67, 80 (1972). In order to prevail

on their search and seizure claim, the Plaintiffs must demon-

strate that the Defendants, while acting under color of state

law, unreasonably seized the Plaintiffs’ “persons, houses,

papers [or] effects.” U.S. CONST. amends. IV; XIV, § 1. See

Soldal v. Cook County, 506 U.S. 56, 61-62 (1992).

[2] In the circumstances of this case, the Fourth and Four-

teenth Amendment inquiries are, for all relevant purposes, the

same. The critical question in this case is whether the officers,

who were plainly acting under color of state law, unlawfully

facilitated Bruno’s efforts to repossess Meyers’s Lexus,

thereby unreasonably seizing her car or depriving her of prop-

erty without due process of law. Indeed, for purpose of this

decision only, we may assume that Meyers suffered both the

deprivation of her car without due process of law and the

unreasonable seizure of her car. However, on this record, we

conclude that the officers were not so enmeshed in effectuat-

ing the repossession that the deprivation and seizure of Mey-

ers’s car is attributable to the state.

The “state action” doctrine in repossession and other self-

help remedies has been a complicated area of the law. Many

of the cases have focused on whether or at what point a pri-

vate party employing a self-help remedy has assumed the

mantle of the state and can be held to answer under Section

1983 for violating the debtor’s constitutional rights. See, e.g.,

Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982) (by obtain-

ing writ of prejudgment attachment, oil company was state

actor; company was answerable under § 1983); Flagg Bros. v.

Brooks, 436 U.S. 149 (1978) (creditor’s repossession was not

state action; creditor not subject to suit under § 1983); Adams,

492 F.2d at 329.

[3] This case presents the flip side to those cases: At what

point have the police become so entangled in a private self-

help remedy that they may be held to answer under Section

1983? See, e.g., Soldal, 506 U.S. at 60-61 n.6 (declining to

3168 MEYERS v. REDWOOD CITY

review lower court conclusion that police participation consti-

tuted state action); Howerton v. Gabica, 708 F.2d 380, 383-84

(9th Cir. 1983) (finding state action where police were present

at each step of the eviction from a trailer and recommended

that the owners leave the trailer); Harris, 664 F.2d at 1127

(finding state action where police participated in semi-tractor

repossession). But see United States v. Coleman, 628 F.2d

961, 964 (6th Cir. 1980) (finding that “mere acquiescence by

the police to ‘stand by in case of trouble’ was insufficient to

convert the repossession of the truck into state action.”);

Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 512-13

(5th Cir. 1980) (finding that plaintiffs did not provide evi-

dence of police officers acting in concert with defendants dur-

ing a repossession to deprive plaintiffs of constitutional

rights).

[4] Our principal case is Harris. Harris had purchased a

semi-tractor from Cantwell, who retained a security interest in

the tractor. When Harris fell behind on his payments, Cant-

well decided to repossess the tractor. Cantwell alerted the

Roseburg City (Oregon) police that he intended to repossess

the tractor and that he feared violence, and asked the police

to “stand by” during the repossession. As Cantwell had

feared, Harris confronted him. One of the police officers then

stepped between them and ordered Harris to stand back

because Cantwell was there to repossess the truck. Harris,

664 F.2d at 1124. We held that the officers did not have to

physically take possession of Harris’s property to deprive him

of it. It was enough that “the officer assists in effectuating a

repossession over the objection of a debtor.” Id. at 1127.

Accordingly, although “mere acquiescence by the police to

‘stand by in case of trouble’ is insufficient to convert a repos-

session into state action, police intervention and aid in the

repossession does constitute state action.” Id. See also Marcus

v. McCollum, 394 F.3d 813, 818-819 (10th Cir. 2004) (col-

lecting cases).

[5] The melee in Meyer’s driveway was not conducted

under the purview of the officers. Unlike in Harris, Officers

MEYERS v. REDWOOD CITY 3169

Dowden and O’Keefe were not alerted in advance to the

repossession and asked to “stand by” to ensure that the repos-

session went smoothly. In Harris, Cantwell secured the pres-

ence of the officers precisely to guarantee that Harris did not

protest the repossession and, thus, that the repossession could

proceed without breach of the peace. Harris, 664 F.2d at

1124. When Harris protested the repossession, the officers

intervened on behalf of Cantwell. The officers’ presence was

integral to the repossession, and they were active participants

in it.

[6] By contrast, Officers Dowden and O’Keefe were sum-

moned to a scene not of their making. Clearly, a “breach of

the peace” within the meaning of Section 9609 was in prog-

ress. The officers then heard conflicting stories about whether

Bruno had taken effective possession of the car prior to the

breach. The officers were caught between two sections of the

California Code, one which says that a repossessor may take

the collateral if he can do so without breaching the peace,

CAL. COM. CODE § 9609(b)(2), and a second which says that

the repossession is complete when the repossessor gets access

to the car, CAL. BUS. & PROF. CODE § 7507.12. Even if the

officers understood how those two sections are supposed to

work together, the officers had little means for resolving the

dispute over possession of the car at the scene.1

[7] At that point, both Bruno and Meyers insisted on mak-

ing a citizen’s arrest of the other. Under the California code,

private persons may arrest another for offenses committed or

attempted in their presence. CAL. PENAL CODE § 837. “A pri-

vate person who has arrested another for the commission of

a public offense must, without unnecessary delay, . . . deliver

1

We have no occasion here to decide whether, under California law, one

who gets access to a vehicle (making repossession complete under

§ 7507.12) is barred from taking it (under § 9609(b)(2)) if a breach of the

peace occurs after the repossession but before the repossessor can remove

the vehicle from the property.

3170 MEYERS v. REDWOOD CITY

him or her to a peace officer.” CAL. PENAL CODE § 847(a). A

private person making a citizen’s arrest need not physically

take the suspect into custody, but may delegate that responsi-

bility to an officer, and the act of arrest “may be implied from

the citizen’s act of summoning an officer, reporting the

offense, and pointing out the suspect.” Padilla v. Meese, 184

Cal. App. 3d 1022, 1030-31 (1986). California law gives the

officer the choice of making the citizen’s arrest or not, but

there are powerful incentives to make the arrest. On the one

hand, an officer who makes an arrest pursuant to a citizen’s

complaint is not subject to liability for false arrest or false

imprisonment. CAL. PENAL CODE § 847(b)(3). On the other

hand, an officer does not have to effect the arrest if he or she

“is satisfied that there are insufficient grounds for making a

criminal complaint[.]” CAL. PENAL CODE § 849(b)(1). How-

ever, there is a catch: If it turns out that there were grounds

for the complaint and the officer failed to take the suspect into

custody, the officer is subject to fines or imprisonment. CAL.

PENAL CODE § 142(a).2 The California courts have held that

even though an officer may decline to take a suspect into cus-

tody under Section 849 if he finds no grounds for the com-

plaint, an officer cannot be sued civilly if he makes the arrest

and, it turns out, there were no grounds for the citizen’s arrest.

Kinney v. County of Contra Costa, 8 Cal. App. 3d 761, 768-

69 (Cal. Ct. App. 1970); Shakespeare v. City of Pasadena,

230 Cal. App. 2d 375, 382 (Cal. Ct. App. 1964). Noting the

conundrum in the law, California courts have held that the

law does not compel officers to choose between civil liability

for false arrest and criminal liability for failing to make an

arrest, and that officers may choose the safe course and sim-

ply make the citizen’s arrest:

2

“Any peace officer who has the authority to receive or arrest a person

charged with a criminal offense and willfully refuses to receive or arrest

that person shall be punished by a fine not exceeding ten thousand dollars

($10,000), or by imprisonment in the state prison, or in a county jail not

exceeding one year, or by both that fine and imprisonment.” CAL. PENAL

CODE § 142(a).

MEYERS v. REDWOOD CITY 3171

[W]e are presented with no authority, and we find

none, holding that a peace officer, required to take

custody of a person arrested by a private citizen,

must at his peril correctly adjudge whether the citi-

zen had probable cause. The means of information

would ordinarily be scant and any error on the offi-

cer’s part would be costly; should he incorrectly find

no probable cause and refuse custody he would face

criminal sanctions, while a faulty contrary decision

would subject him to civil liability to the person

arrested.

Kinney, 8 Cal. App. 3d at 768-69 (citations omitted). See also

Arpin, 261 F.3d at 920-21.

[8] Once Bruno told the officers he wanted to press

charges, the officers could decline to arrest Meyers only if

they determined that there was “no ground” for the arrest, but

the risk of error for failure to arrest her was criminal fines and

imprisonment. Having seen the blood from the scratches on

Bruno’s chest and arms, the officers were bound to take Mey-

ers in on Bruno’s citizen’s arrest. By the same token, when

Meyers told the officers that she too wished to press charges,

the officers were equally bound to arrest Bruno.

When the officers asked “Is there any way we can resolve

this situation peacefully?” they were trying to extricate two

citizens out of a mutually difficult situation, one that was

likely to result in both of them being arrested. The officers

simply presented to Meyers her options: she could assert her

rights to the car, and Bruno would press charges and the offi-

cers would have to arrest her. Or, she could avoid arrest and

fight Bruno and the Credit Union another day. She could, of

course, have pressed her own charges against Bruno, but if he

was going to the station, she was likely going with him.

[9] This looks like a no-win situation for Meyers, but it was

Bruno, not the officers, who ultimately created the Hobson’s

3172 MEYERS v. REDWOOD CITY

choice: He would not effect his citizen’s arrest if Meyers

would let him take the car. Meyers had to make a choice

between suffering arrest (and perhaps leaving her baby), or

giving up the car until the following day when she could get

everything straightened out with the Credit Union. Forcing

Meyers to choose between her liberty or her property was not

a situation of the officers’ creation but a consequence of a

nasty confrontation. Bruno simply took advantage of the situ-

ation and California law. Had the officers declined to present

the choice to Meyers, Meyers could have kept her car, but

both she and Bruno would likely have ended up at the police

station. Presenting Meyers with such a choice — albeit a

choice between two unpleasant consequences — does not vio-

late her Due Process or Fourth Amendment rights.

[10] We thus disagree with the district court that the ques-

tion was whether the officers reasonably believed that Bruno

had effected repossession and was entitled to take the car. The

officers could have reasonably believed that Bruno had a col-

orable claim to the car and, without resolving whether Bruno

was entitled in law and fact to repossess the car, determined

that they had to present the options to Meyers and Rovetta. In

this situation, it is Bruno, not the officers, who risks suit for

either wrongful repossession or false arrest. Even if the offi-

cers mistakenly thought that Bruno had gained access to the

car and was entitled to repossess it, their presenting the choice

to Meyers did not violate her Fourth and Fourteenth Amend-

ment rights.

B

[11] Even if we thought that the officers crossed a line

established by Harris, the officers are surely entitled to quali-

fied immunity because they could not have known that they

were violating the Plaintiffs’ “clearly established” constitu-

tional rights. Harlow, 457 U.S. at 818. Even with a copy of

Harris in their back pockets, the officers could not have deter-

mined at what point in the middle of this messy repossession

MEYERS v. REDWOOD CITY 3173

they deprived Meyers of her property without due process of

law. Meyers may have every right to be unhappy with the sit-

uation, but the officers cannot be faulted for attempting to set-

tle this late-night confrontation peacefully. In these

circumstances, it would not “be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202.

III. CONCLUSION

Officers Dowden and O’Keefe did not violate Plaintiffs’

constitutional rights when they reasonably acted to restore

order during a tense and difficult situation. The district court

erred in denying summary judgment on this issue. In any

event, the officers are entitled to qualified immunity for their

actions. The district court’s decision is reversed and the case

is remanded for further proceedings consistent with this judg-

ment.

REVERSED.