# Natasha Thomas Susan Gibbs and Edwina Lewis v. Ann Cohen Glenn Craig James Embry and Susan Fischer, in Their Individual Capacities

> Court of Appeals for the Sixth Circuit · August 23, 2002 · 304 F.3d 563

URL: https://www.frixlaw.com/law-library/cases/9495366

## Case

- **Full name:** Natasha THOMAS; Susan Gibbs; And Edwina Lewis, Plaintiffs-Appellees, v. Ann COHEN; Glenn Craig; James Embry; And Susan Fischer, in Their Individual Capacities, Defendants-Appellants
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 23, 2002
- **Citations:** 304 F.3d 563; 2002 U.S. App. LEXIS 17528; 2002 WL 2012563
- **Precedential status:** Published
- **Opinion:** Concurring in part by Gilman
- **Judges:** Clay, Gilman, Wallace
- **Cited by:** 145 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9495366

## How later opinions describe it (automated extraction)

- holding that officers who escorted tenants from premises based only on owner’s allegation they were subject to eviction were “active participants” in the Fourth Amendment violation
- concluding that the summary eviction of tenants by the police in contravention of established state eviction procedures supported a claim for a Fourteenth Amendment violation
- finding police officers’ eviction of the plaintiffs from their residence was unreasonable when the eviction was premised not on a court order or exigent circumstances but rather on unverified representations by a third party
- holding that it was objectively unreasonable to evict tenants because the eviction was not pursuant to a court order and the tenants had paid rent
- finding “officers ‘unceremoniously dispossessed’ Plaintiffs of their place of residence without affording them an opportunity to be heard at any type of predeprivation hearing”

## Opinion text

GILMAN, Circuit Judge,
concurring in part and dissenting in part.
I concur in the lead opinion’s determination that, at least at the summary judgment stage, the police officers in the present case are not entitled to qualified immunity with regard to the plaintiffs’ due process claim under the Fourteenth Amendment. But I disagree with the lead opinion’s conclusion that the officers are not entitled to qualified immunity on the plaintiffs’ seizure-of-property claim under the Fourth Amendment. I therefore respectfully dissent from that portion of the lead opinion.
The plaintiffs allege that their real estate interest was unreasonably seized when the officers evicted them from the shelter in which they were living. Even assuming that an unreasonable seizure occurred, the officers are entitled to qualified immunity so long as they did not violate clearly established constitutional or federal statutory rights in conducting the eviction. Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). A right is “clearly established” only where the contours of that right are so clear “that a reasonable official would understand that what he is doing violates that right.” Risbridger v. Connelly, 275 F.3d 565 , 569 (6th Cir.2002). To determine if a right is clearly established, this court Took[s] first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits.” Key v. Grayson, 179 F.3d 996, 999-1000 (6th Cir. 1999).
The constitutional right to be free from the unreasonable seizure of property is clearly established. U.S. Const, amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”). Whether the eviction that occurred in the present case constitutes a seizure of property, however, is anything but clear. In evicting the plaintiffs from the shelter, the officers did not take physical possession of the property. The officers in fact did nothing more than escort the plaintiffs from their place of residence. I can find no published opinion anywhere holding that an eviction under these circumstances is a seizure of property for the purpose of the Fourth Amendment.
In concluding that the eviction in this case was a seizure of property, the lead opinion relies upon United States v. Jacobsen, 466 U.S. 109 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984), and Soldal v. Cook *583 County, 506 U.S. 56 , 113 S.Ct. 538 , 121 L.Ed.2d 450 (1992). Both of these cases, however, involved conduct that included the taking of physical control .over the property in question. The government actors in Jacobsen seized property when they took “dominion and control” over a package and destroyed its contents in a field narcotics test. 466 U.S. at 120, 125 , 104 S.Ct. 1652 . Likewise, the seizure of property in Soldal occurred when the government actors helped conduct an eviction by physically removing a mobile home from its foundation. 506 U.S. at 72 , 113 S.Ct. 538 .
Although a government official may be held liable for violating a clearly established right even if that right has not been explicitly recognized, precedent must exist that makes the unlawfulness of the official’s conduct “apparent.” Risbridger, 275 F.3d at 569. But I am hard-pressed to conclude that the eviction in this case was a seizure of property at all, much less that precedent made it clear to the officers that their conduct in fact constituted such a seizure. The term “seizure,” in my view, connotes a physical act of control or possession over the item seized, and both the Supreme Court and this court have consistently construed the term within the bounds of its plain meaning. E.g., Soldal, 506 U.S. at 72 , 113 S.Ct. 538 ; Flatford v. City of Monroe, 17 F.3d 162, 169-70 (6th Cir.1994) (concluding that a seizure of property occurred where government actors evicted the plaintiffs in the course of condemning their apartment building).
In any event, I do not believe that we need to decide whether a seizure actually took place in this case, because, at the very least, a reasonable person in the officers’ position would not have known that the eviction in question violated the plaintiffs’ Fourth Amendment right to be free from the unreasonable seizure of their real estate interest. I would therefore affirm the district court’s decision to deny qualified immunity on the plaintiffs’ due process claim, but would reverse the district court’s determination that the plaintiffs are entitled to proceed to trial on their seizure-of-property claim.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9495366. Public record. Not legal advice.