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
How later courts described this case
- 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
Written by the judges who cited it.
The opinion
WALLACE, Circuit Judge,
concurring in part, dissenting in part.
I concur with Judge Gilman that the officers are entitled to qualified immunity on the Fourth Amendment claim because any Fourth Amendment right not to be evicted, if there is one, has not been demonstrated to be a seizure and has not yet been clearly established. I dissent, however, from the majority’s conclusion that there is a genuine issue of material fact as to whether the officers are entitled to qualified immunity on the Fourteenth Amendment Due Process claim. I would reverse.
The qualified immunity doctrine has been described in the following terms: “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). To determine whether the officers in this case are entitled to this immunity, we first ask whether “the facts alleged show the officer’s conduct violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). If we determine that a constitutional right has been violated, we then “ask whether the right was clearly established.” Id. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he con *584 fronted.” Id. (citation and quotation marks omitted).
Further,
[t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether [his response to those facts] is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.
Id. at 205, 121 S.Ct. 2151 .
With respect to the initial inquiry, I agree with the majority that plaintiffs had a constitutional right to predeprivation process — assuming, as we are for purposes of this appeal, that plaintiffs were deprived of a property interest by virtue of their status as alleged tenants. However, I part with my colleagues on whether that right was clearly established because I believe it would not have been clear to a reasonable officer, under the circumstances confronted by the officers in this case, that plaintiffs had a property interest in and therefore a right not to be prematurely evicted from Augusta House. See Harlow, 457 U.S. at 818 , 102 S.Ct. 2727 (“On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.”).
Consider the circumstances. Plaintiffs were living in a transitional women’s shelter or half-way house. Normally, shelter occupants in Kentucky have no property interest in the shelter and thus no right to pre-eviction process either because the occupant is not a tenant, Ky.Rev.Stat. Ann. § 383.545(15) (defining tenant), or because the shelter is exempt from Kentucky landlord-tenant law, Id. § 383.535. Indeed, all four officers testified that they did not believe that plaintiffs and Augusta House had a landlord-tenant relationship.
When the officers were dispatched to Augusta House, they were told that it was a shelter. When they arrived at the scene, Laura Zinious approached them and identified herself as the shelter director. She told them that the plaintiffs had violated shelter rules, that they had refused to leave, and that it was “standard practice” for the police to assist with their removal. Thus, the officers had every reason to believe, at least at first, that plaintiffs had no property interest in the shelter.
A reasonable officer, though, still might have asked plaintiffs for more information about the Augusta House living arrangements. However, when the officers entered Augusta House, plaintiffs made it impossible for the officers to inquire further. Officer Cohen testified that “[a]ll three of them were yelling so loudly and cussing, it was hard to even talk to one of them.” When asked if he was “able to discern what [plaintiffs] anger was about,” Officer Craig responded:
[a]gain, not specifically. As I recall, they were just-all three of them were talking and yelling all at one time, not really any good, usable information from that, other than just trying to calm them down and maintain order just for safety reasons, initially.
Further, Officer Fischer’s deposition reveals the following:
Q. And was that the first thing that got said to them, that they needed to get ready and leave?
A. We asked them if — how did we put that. We asked them if they lived there or stayed there or whatever *585 the — we couldn’t distinguish, you know, from one to the other because they were all yelling and screaming and carrying on. They were ticked off at her [Zinious], they were being belligerent towards her, so it was hard to keep them all calm to get any common sense out of anybody.
Q. Okay. Were there any discussions that you heard between the officers and the manager while you were at the house?
A. To be honest with you, quite frank with you, no, because it was too loud. It was hard to distinguish who was talking to who.
Q. Nobody was listening to anybody else?
A. Exactly. It was — like I told you, it was tumultuous. Like I told you, everything was going everywhere.
And finally, we learn from Officer Embry that “[a]ny attempts that [he] had to discuss anything with [plaintiffs] was met with loud, foul language.”
True, plaintiffs’ written declarations state that Natasha Thomas told the officers the plaintiffs “paid rent and had rights.” But plaintiffs never dispute that Thomas was in the midst of an uncontrollable outburst when she tried to communicate this to the officers. Plaintiffs’ own behavior, then, prevented the officers from determining the true nature of the Augusta House living arrangements. In a footnote, Judge Clay suggests that I mistakenly view the evidence on this point in the defendants’ favor. Our obligation to view the evidence in the plaintiffs’ favor, however, arises only when the “defendant disputes the plaintiffs’ version of the story.” Phelps v. Coy, 286 F.3d 295, 298 (6th Cir. 2002). As I have already said, defendants’ testimony that plaintiffs’ own behavior inside Augusta House prevented any communication is undisputed. We must therefore accept defendants’ testimony in this regard on its face.
Because further inquiry was made impossible, it was reasonable for the officers to rely on their initial conclusion that Augusta House was a traditional shelter and, consequently, that plaintiffs could, indeed should, be removed without pre-eviction process. In hindsight, this may have been a mistake. Because it was impossible to determine the exact nature of the Augusta House living arrangements, however, it was just the kind of “reasonable mistaken” that the qualified immunity doctrine was designed to protect. Saucier, 533 U.S. at 205, 121 S.Ct. 2151 .
The lead opinion makes much of the fact that Officer Cushman concluded that he could not legally remove plaintiffs after he was dispatched to Augusta House the night before the incident here in question. Our inquiry, however, is not whether an officer would have concluded that plaintiffs were tenants. Rather, it is whether it would have been unreasonable for an officer in the same circumstances to act as the officers in this case did. While I applaud Officer Cushman for guessing right, he made that call under different circumstances. From Officer Cushman’s deposition, it does not appear that he was told that the house was a shelter. Moreover, upon arrival, he was met by the Augusta House maintenance man, not the shelter director. And, most importantly, he was able to communicate with plaintiffs upon entering the house. Because the circumstances he confronted were entirely different, his reaction to those circumstances tells us little or nothing about whether it was reasonable for the officers in this case to tell the plaintiffs to leave Augusta House.
*586 I would reverse the district court’s denial of the officer’s Motion for Summary Judgment because I believe the officers are entitled as a matter of law to qualified immunity on plaintiffs’ Fourth and Fourteenth Amendment claims.