Summary:
When Carolina Repo attempted a self-help repossession of her car, Atkinson attempted to drive her vehicle away. Carolina Repo then slid the tow bar under the car to disable it, demanded that she exit it, and called the Harnett County Sheriff's Office. Deputy Sheriff Godrey arrived at the scene and directed Atkinson to exit the vehicle so that it could be repossessed. Intimidated by an armed law enforcement officer, Atkinson complied and Carolina Repo took the car.
In addition to bringing suit against Carolina Repo (which was sent to arbitration), Atkinson sued Godfrey and Seriff Wayne Coats alleging a violation of 42 U.S.C. § 1983. Coats & Godfrey moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing both that Godfrey's actions were no more than a “de minimus involvement in a private company’s repossession of Plaintiff’s vehicle . . ..” and that Godfrey is entitled to qualified immunity. Further, Coates argued that Atkinson failed to plausibly allege a "policy or custom" of the Sheriff's office that violated the Constitution.
The district court, however, held that, when construed in the light most favorable to Atkinson, Godfrey's order to exit the vehicle so that Carolina Repo could repossess it was plausibly "active participation" Citing heavily from Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004) with respect to law enforcement involvement in a private repossession determination of whether Godfrey participated in a manner sufficient to constitute intervention and state action is a fact-intensive issue that involved many factors, including:
- Whether an officer:
- Came on the scene:
- at the request of the repossessor;
- with the repossessor;
- stood in close proximity to the repossessor; and/or
- and remained until completion of the repossession.
- Instructed the vehicle owner:
- not to interfere with the repossession;
- that she was not the rightful owner of the property; and/or
- To stop interfering or he would go to jail;
- Unreasonably:
- Accepted the documentation of the repossessor; and/or
- Recognized the rights of the repossessor over those of the debtor;
- Came on the scene:
- Whether the debtor would have prevented the repossession if police had not been there;
- Whether, even if unintentional the officer intimidated the debtor into not exercising her right to resist.
- Whether the action of the officer were necessary to keep the peace and deescalate the repossession
"[T]he overarching lesson of the case law is that officers may act to diffuse a volatile situation, but may not aid the repossessor in such a way that the repossession would not have occurred but for their assistance." Marcus v. McCollum, 394 F.3d 813 (10th Cir. 2004).
The district court also held that Atkinson's allegations were sufficient to establish violations by Godfrey of her constitutional rights under the 4th and 14th Amendments as a “reasonable police officers should know from the established precedent in Fuentes that their role is not to be participants in property deprivations without notice and an opportunity to be heard.” Abbott v. Latshaw, 164 F.3d 141, 146 (3rd Cir. 1998). Lastly, as to Coates, the district court held that Atkinson pled sufficiently, even though "upon information and belief", that the Harnett County Sheriff did have "policies and customs" that led to the alleged constitutional violations.
Commentary:
Marxist snark of the day- It is always good when law enforcement choses to use the illegal threat of state violence in service of breaches of the peace by capital. See UCC § 9-609.
This decision is on appeal to the 4th Circuit Court,. but it is unclear if NACA, NCLC or other consumer rights organizations are assisting. There also seems to be some unlikely attorneys, who normally represent consumers, appearing for other creditors in this case.
To read a copy of the transcript, please see:
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