it please the court my name is russell thompson and i represent adrian beeman this case raises the issue of whether police officers involvement in the private repossession of miss beam and vehicle constitute an intervention and aid transforming the private ownership and then ultimately arrested her when she refused to accept their improper verdicts this intervention an aide transformed it into state action according so maybe maybe the police officers are acting as state actors they almost always are but you're not suing the police officers i mean i read the case law there's two different issues one is one the police officers become subject to suit under ninety three in the context of a private repossession and that's really a lot of the law you're citing but you're actually trying to sue the private actors and there doesn't our case law require concerted action a conspiracy basically no your honor does not require a conspiracy conspiracy is one of the four or five different tests that have been ok let me ask you know what case holds a private actor subject to state action in a repo case what's your best case that would be men choco versus chrysler the opinion of this court they did i thought they didn't hold them they did not there so my question is what case held private actors responsible that wasn't based on a conspiracy or concerted action there well if i could st point if you don't mind because that court that the differentiation between m contention that police intervention and eat in this repossession by defendant chryslers agents would constitute stay action however the testimony failed to show intervention an aide so him and shaka this court essentially held that if the officers ha actually told him mr chalker that he had to relinquish possession of the vehicle that alone would have transformed it into state action and that case there was deciding not the police officers motion but the most a motion to dismiss for lack of jurisdiction by chrysler the security party in that instance but courts across the country have held that a police officer is opining on lawful ownership of the vehicle would constitute intervention a aid the district of new mexico is different there's a domestic incident in my house someone calls the police and i was the victim in list the police to help arrest the the person doing the assault i mean this is police every day their job is to help private citizens when there's an altercation i just it's seems like every private person who calls up a police officer would be merely showing up on the scene and arresting somebody for criminal activity alone would not be sufficient to constitute state action isn't that exactly what happened here even under her i mean she's driving the car off of the truck yes your hon however the what the police officer should have done when they showed up was either said that there was a it was a civil matter the repossession or alternatively arrested her on the spot but that's not what they did yeah because they negotiated the deal that he wouldn't have to be arrested i disagree your honor i don't think that they negotiated any deal and that that also excludes the two illegal curbside chords that happened before that where they weighed evidence that opined that she's not the lawful owner of the vehicle that was where the intervention and aid and the court did all of the analysis there the only difference is the court they are found that the officers did not opine as to lawful ownership of the vehicle and they actually left here the st two officers showed up they were aware of them in shock i mean again we can all read the cases on our own but i mean i'm looking at page five hundred and twelve dollars that says it's criticizing the dissent it's as the dissent overlooks the fact that absent some form of concerted conduct on the part of the police officer there is no jurisdiction to support claims participant in joint activity with the state dayton's this court in baldwin versus morgan two hundred and fifty one f to you seventy eight he said those who directly assist the admitted state agency in carrying out the unlawful action become a part of it and  officers fire well to turn over the body cam footage is me but the defendant solicit here private individuals yes your honor the defendant the police officers failed to turn over the body footage until after the deadline to amend pleadings so there's another action stayed pending this court's decision in the district court currently against the individual officers so there's two separate actions now this one up on appeal and the other one because the deadline to amend it passed against the officers let me give you  a i call the police and say i see someone stole my kid's bike i see the kid down the street with it that's my kids bike in and they come and they take the bike away and i listed their help and they bring the bike back to my kid i can be sued because i and i worked with the police to get this property back and you would say well there was no due process hearing the police did a curbside hearing to determine that was my kid's bike and not the person who stole it yes your honor i think that's improper for the officers to give it back if i can explain it so people do they say you can't report stolen no i already know your honor you can report it stolen but the property the then the property gets gets taken it gets seized by the police and it goes through the property hearing sergeant gallia and one of the officers that later showed up so they can just like you just give it back to my kid exact because there's a dispute over stolen property unfortunately just as a matter of law that has to go through the property hearing dispute hearing it's both explained in sergeant galleons report and on the body cam footage where she explains that if  report this is stolen they're not getting it we're taking and it's going to be nine months of hearing and then she opines you're not going to get it anyway it's highly unlikely you're even going to wind this up at that hearing and again going back to what what she'll say in that situation but she was adamant as it shows on the body cam footage that you can't report this this is my car you can reported it stolen to go back to judge cost to what you said that she could have reported stolen and as he drove away that's what i was going to say as well your honor is that in that situation where your kids might get stolen while the complete office is that's essentially showing up and then them saying no he hit me trying to take this kid's this bike back this isn't this kid's bike arrest him for the vehicle being stolen but instead they use that to advocate for the right to possession i go with what i guess what strikes me about your answer the hypothetical even if the police did something wrong if your argument is that the private person who calls the police then a list they're hell can be sued to another i believe that is correct there are all kinds of private towards you can bring against people malicious prosecution you know state torture you can bring against private actors it's just it's a it's a very rare thing to hold a private person  accountable under the constitutional requirements yes your honor and i'm going back to that i believe that the differentiation is we're getting at here is state action by the officers versus joint action our opinion is the state the district court didn't address joint action it made it to the point to determine whether the officers exceeded their scope by providing intervention an aide to transform it into an interstate action and said no and never never went any further than the joint action  before depriving her of her vehicle because the private the private party operating under state law that allows i mean they well they at the very least they have qualified immunity in this case because this has never is no i mean aside from all the other nuances about qualified immunity law there is no way that you turn a finding against a party based on data from the court in to clearly established law holding these private parties liable but when chalk is only distinguishable on the factual situation for you haven't thought through this case and you might have been better off in state court under state law which does have provisions about how far police can go in repossessing and so on and we do have state law claims your honor those were dismissed because no longer no federal jurisdiction after the one thousand nine hundred and eighty three claims but it but again police officers job is exactly what they did it is to keep the peace the police officer showed up they didn't opine on the rights and that was that was the reasoning there why they didn't find state action there well dicta that's why they said that they agreed the liable for their joint action with the officer no all mr burleson did was call the cops after you've been run over by someone that they summon the police to the scene and then once there the reality of the state law is they can't represent that vehicle no matter what because of the breach of the peace so they knew any continuation to deprive her of that vehicle violates state law but the officers they enlisted the officers help and the officers they opined they said you know on this vehicle day what's the testimony of say car they spoke with the dealership on the phone who's said no money had been paid at all and then they just continued pressing we are the owners of this vehicle when they were not the lawful owners the vehicle we have a right to take this vehicle it's not the right taking that vehicle at that point because there was a breach of the peace is a violation of state law so they can't then enlist the officers who came opined and then advocated this isn't the officer simply showing up doing nothing and arresting her and then saying hey they want you to turn over the keys and they'll drop the charges they had already hold two different curbside courtrooms where they said you don't have any evidence to prove you made any payment sergeant gallion uses the word evidence and they say there advocacy is clear looks report says i officer for a look my partner officer officer nickerson and sergeant gallion made several attempts to convince mr beeman to give up the vehicle you can list to police officers to come in and advocate on your behalf for entitlement to property that's that simply not how it works and the officers weren't even going to arrest her a missionary they're talking about well we could leave here they can report a stolen or if you get pulled over tomorrow you're going to get arrested st one didn't get company on mr burleson have the right to say  she damaged my car they damaged this car as to which there is a disputed they ran they ran ran into mr burleson don't they have the right to prefer charges at that point yes and at that time the police should have taken the vehicle the police would not be able to say fine you can just take the vehicle as well because that again is state action deciding the vehicle and then sergeant yelling and use that against her because they were saying oh you thought you were going to red light is on and you have time for the there must be evidence of joint action or order to support one thousand nine hundred and three claim it sounds like your honour's have already picked up on that issue and did the police do anything inappropriate and if so what impact this add on the to the owner of the vehicles property attempted to repossess the vehicle and altercation ensued became by a once there were suggestions in the record that each side assaulted the other side the owner of the vehicle yelled to her father get the shotgun and at that point the repossess or called the police the police came and intervened and the police had the options both sides wanted to press charges against each other so at that herself could face criminal sanctions so the police officer in this scenario brokered a deal whereby the owner of the vehicle agreed that she would mr beeman when she became aware that the car was being repossessed rushed out solve the vehicle had already been attached to the tow truck had already been raised off the ground jumped into the be able attempt to drive off she caused damage to the vehicle she investigation they talk to everyone involved there was certainly evidence to support mr bishop's version of events there was damage to the vehicle and there was damage to the tow truck there were the police reports no date that he had suffered a slight injury on his leg  and as a result miss beeman ended up facing a hobson's choice she could either acquiesce to the repossession mr bishop and the company simply told her hey if you will just let this all go we w i'm relaying to the court but then also the evidence that was supplied by the plaintiff and her response for a motion to dismiss under twelve b one include all the police reports a lot of this is taking verbatim out of the police reports and then also mr mr bishop's affidavit so that's  and judge you more rest that issue and our point was that the pleadings were conclusory and that there was no real evidence to establish that there was any prearrangement or plan or conspiracy and and will stand by that that i don't i think that that are pleadings on that basis are conclusionary i mean the minute a case where a private actually be considered a state become a state actor is when you know the d n a works or someone says ok you're going to go in their house and you're going to look in their closet and bring this back you know you're basically deputizing a private person to do a law enforcement task but it's almost it's it's at the instigation of the government to the private party here at best i think they have a private party friday reflect that as well that's the the beat as case the lexus case and the ginsburg case you know police officers became involved after being summoned to a scene to address an issue the police officers then went out and took independent action and the plaintiffs had issue with what the police officers did but in all three of those cases they circuit courts found that there was simply no evidence of any concert of action there was no prearrangement there was no plan there was no conspiracy and without that there's no way that you can hold a private actor liable under one thousand nine hundred and three the conduct of the police may or may not have been wrongful but in order for a private actor to be liable there has to be joint action there has to be you know the th circuit address this particular issue and one of the out the hey there's no coercive state action on these facts this is just simply a situation where the owner of the vehicles found themself in a bad spot and they have to make a choice and it wasn't the police officer the put them in the bad spot it was their own actions and it was the fact that you've got a private actor on the other side is willing to file criminal charges and you know that's exactly what happened in miers that's exactly what  you know what's the police officer in a strange position where they either have to pursue the charges or they may they may face some kind of criminal penalty themselves and that the really doesn't make any difference it doesn't matter with the rationale for the decision of the police officer in deciding whether or not they're going to arrest somebody in the meiers case it was potentially because the mother the police officer said well i either have to arrest this person even though there was ample evidence and that's reflected in the case there was  evidence to reflect that some some wrongdoing had occurred so in our case the rationale that the in the police officer's mind was that hey i've investigated i've gathered all the facts i've called the district attorney i've passed on all those facts to the district attorney and the district attorney is going back to me and said hey based on what you told me these are the charges that we believe are supported and the charges don't have anything to do with with merely protesting the repossession they don't arise because she protested the repossession the charges were criminal mischief and reckless assault because of the damage to the property in the injuries to mr bishop so all these actions were taken you know these are separate and apart from simply the reproduction so just as in myers a deal was brokered the mr bishop  in the records of like this the police records like this mr bishop repeatedly told her hey just let me take the car and i won't press charges just let me take the car and i will press charges and ultimately when push came to shove and it was apparent that ok she's under arrest and affidavit and and judge gilmore found that she voluntarily real relinquish the keys so myers stands for the proposition that if you voluntarily relinquish the keys in the face of potential criminal charges there can be no deprivation of any right because you volunteered to do it all right and i looked at your district court pleading that i did and you were just arguing the state action ground from what i saw because i was wondering if be evidence of state action and there has to be evidence of concert of action some kind prearrangement or a plan in our briefing and then subsequently we supplement that with three additional leasing company there was thought that his insurance company was going to pay for it when he came back to return the truck the company told now that you're an insurance parent he's not going to pay for your have to pay as and allow and vigorous disturbance arose currently some foul language was used and the customer marched out with up buying the business was concerned that this customer was going to come back and cause additional problems they some of the police officer police officers arrived they told the police officer what was going on and that they were just concerned that if this guy came back there might be a situation and they wanted him to be aware of it subsequently the police officer of his own accord wow and found the gentleman and brought him back to the next an order for you to state a claim against a private actor there must be some concert of action as we've discussed repeatedly here the mere fact that the business requested assistance and  resolution of this payment dispute i'm sorry the business did not seek assistance in the resolution of the payment to speed the only thing they did the only record before the court was that they called the police officer dillon know hey we've had this disturbance we're concerned about a future disturbance we just want you to be aware the police officer at that point of his own accord went out and grabbed the customer and the officer told the plaintiff the yoda money when he brought him back but there was no evidence whatsoever that this was undertaken pursuant to a plan any conspiracy or any kind of prearrangement and the court said on these facts indeed if the business can be said to back to jointly with the police officer on these facts a private party would be considered a state actor responsible for subsequent independent actions of a police officer whenever it legitimately calls for official assistance or protection which is the point that you made earlier judge costa the alexis case is very similar there was a furthermore as there is no evidence in the summary judgment record from which it could fairly be inferred that the business of the police officer had any understanding tacit or explicit to deprive the customer of any right secured by the constitution or laws of the united states we conclude that the district work directly grant summary judgment on this section one thousand nine hundred and three claims so what they're saying is that there has to be evidence of an understanding and in the case of bar there is simply no evidence of any understanding in fact it's the opposite they be evidence is that mr bishop had no prior relationship with the with the police officers he merely called them because the situation had gotten out of control and they arrived on the scene the police officers did what police officers do they did their best to keep the peace that's what judge gilmore found most of the they did not exceed the bounds of their legitimate peacekeeping role and therefore there was no course of state action all right  is very similar police officer can count on us to read all right i will i will just tell you that the benefit is against him for the same proposition that if police officers go out and take some action a private actor is not liable are responsible for that action unless it was performed pursuant to a dream and or some kind of many of the cases cited by the plaintiff in support of her claims reflect that there was prior contact between the private actors and the state actors before the incident that gave rise to the claims and the case for example the abbott case and the jones case in the case there was evidence that there was prearrangement multiple discussions between the private actor and the police before the private actor took possession of the of the property in abbott the defendant prearrange with a constable to be present as she tried to take possession of the van in fact paid him out of her pocket so he was being compensated not only did he have a pre arrangement with this person but he was actually being competent compensated to be present and in jones the same same issue the the landlord pre arrange for the presence of a uniformed patrol officer when he went out to deal with his tenet so all these cases stand for the proposition that there has to be some kind of evidence of  pre arrangement or a plan in our case as i said there there was no prearrangement there is no prior contact between mr bishop the tow company and the dealer and the police officers who came out to the  scene many of the cases cited by plaintiff where it was held possible that a private actor could be liable for the conduct of a state official involved scenarios where there was a legitimate dispute about who had the right to possess the property who in fact own the property  that's the markets case that was a ten circuit case out of oklahoma which was repossessed in case they repossess or came out to repossess a vehicle and the owner of the vehicle came out and said that's not the car that you've got security interest in and so that's what the dispute was about the they were repossessing the wrong vehicle case which is texas state case there was a dispute about whether the property belonged to the woman who was collecting it from or experience a house she'd been up to the house on several prior occasions gotten her property and now the the thought was that she was trying to take some of the plants property so you've got these three cases where there is there's a dispute about who's got the right on the property in our case there is no dispute about whether or not we were entitled reapers as it were there was a security agreement that's not in dispute the the security agreement was right the final point is did the police do anything improper and the plaintiff relies on statements made by the police to the effect that the dealership still on the be able to she didn't have the right to possess it and the vehicle could be reported stolen well honor not only is it it's there was no joint action so we're not responsible for whatever statements they made were but also importantly she didn't act on any of these i mean the police told her hey you don't veer belongs to them they can take it she said no no no i and requested a supervisor i guess i thought we already established that you didn't move to dismiss on the ground there was no constitutional violation so what is the matter with the police acted lawfully or not well if the  not act on lawfully then and they just don't have a claim sure there's all kinds of reasons they might not have a clue in that you've got you've got to move for dismissal on that ground maybe the statue of limitations run maybe who knows what all the problems might be but you have to raise that argument well i mean none of this matters if there's an if there's not state action well and that's to this further buttresses the point there was no state action because even though the police may have given her bad information about what her legal rights were she refused to accept it and it ultimately ended up being of no consequence because the only reason the children at least gave up the vehicle was because she was facing the criminal charges and that's the the  thousand dollars they weren't the title holder they weren't the lienholder so the that was the clear dispute here i also want to address myers myers does not stand for the proposition that handing over the keys means that there's been no state action in meyer importantly the officers did not opine on lawful entitlement they were simply put in a situation where both parties wanted to file citizen's arrest against the other so the officer's job was to y their arrest them both or face their own liability given that choice they brokered a deal had the officers here brokered a deal we wouldn't be here now this isn't a similar situation again those officers did not opine on entitlement to the vehicle here that's exactly what the officers did there was state action before the arrest before sergeant gallium showed up when the st officers convene in their curbside court they weighed the evidence opined and then advocated for a pelleas and said they have the right to take this vehicle you don't have the right to keep it you essentially wrote a hot check and that's the state action the district court didn't make it down to joint action because it found the cops didn't do anything that amount to do intervention an aid and here they did they intervened they held a curbside courtroom surging gallery and punishes this beeman because she couldn't find on her phone she spent fifteen minutes as noted in the police report looking for financial information she tells her on the body cam if you find that you've made a payment then you get to keep the vehicle but she punished her for not doing this and and going back again there's many taste tests for joint action probably the most on point cases is the district court opinion in brophy vs amen are the employee parked behind the other vehicle while the officer showed up and said the dealer wanted the car and she'd have to leave and then instructed her to remove her things the district court found that was enough for joint action because they blocked the man he ordered them to take the vehicle to take her stuff out and opined that they had a right to it and that he took it doesn't that fall under the rubric of what mr riley was calling prearrangement no because it wasn't pre arranged the officer actionless ninety percent complete when the plaintiff decided to go and drive the car off the tow truck which escalated into this situation of assault and what was called criminal mischief yes i office and the officers could have arrested her for that but the repossession like you said even if it's ninety percent is not complete which means they don't just get to finish it price auto sales versus sanders of the taxes a public court decision so if they don't rest there wouldn't you be so why wouldn't that be under your theory concerted action they they did it at the behest of the private repossess servers you'd be able to sue the private people for false arrest had they just showed her showed up but then we would potentially sue for false arrest because they can't repor stolen i agree there but they kept advocating that they could reported as stolen when they couldn't that's the joint action to say but it doesn't have to be prearranged or a conspiracy or well and is there any circumstance under which the plaintiff i mean the police might be called t scene of the repos where you're saying that would not be joint action it sounds to me as if you're saying if the police show up at the scene of the repos it's suddenly king sex no the next question becomes whether the police and say well then they have to say they probably have the right to take it and that's right yes because they would not have the right to take it there again the only right to take the vehicle in this if it isn't and an unfiltered unfettered right to take it you can only take it without breaching the peace otherwise this isn't a case where they just don't get the car she can't go there after they started action is to me that's a different question than whether what the police do is ultimately lawful or not and so you seem to be maybe  of a claim i mean but it does seem like you're saying any time they're out there just not doing anything at a repossession other than just saying ok you will work it out yourself will leave they should keep the peace that's their job as peace officers is to keep the peace the job of the court is to decide who is entitled the possession of the property here that's not what they did they didn't show up and keep the peace they showed up decided she didn't have a title meant and told her she was going to and then when she wasn't got with appellate youth who decided maybe we should report this stolen and again they weren't going to reported as stolen until she objected to their two different verdict saying you don't own this vehicle you have to give it to them the police report show how they repeatedly hammer on her you know to convince her to give up the vehicle that is the joint action but again the district court didn't address joint action it never made it past the point of determining whether the officers conduct whether their intervention a