1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-11-1998

Abbott v. Latshaw

Precedential or Non-Precedential:

Docket 97-3460

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Abbott v. Latshaw" (1998). 1998 Decisions. Paper 276.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/276
Filed December 11, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-3460 

MARK ABBOTT, 

 Appellant 

v. 

LAURIE J. LATSHAW, ALBERT DIEHL, DENNIS GEORGE, 

ROBERT STAFFORD and DONALD SARSFIELD 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil No. 96-803) 

Argued Under Third Circuit LAR 34.1(a) 

June 11, 1998 

Before: STAPLETON, COWEN, AND RENDELL, 

Circuit Judges 

(Opinion Filed: December 11, 1998) 

 David J. Millstein (ARGUED) 

 Jacquelyn A. Knupp 

 Millstein & Knupp 

 P.O. Box 467 

 Youngwood, PA 15697-0467 

 Attorneys for Appellant 
 Christopher K. McNally (ARGUED) 

 Murphy Taylor, P.C. 

 326 Third Avenue 

 Pittsburgh, PA 15222 

 Attorney for Appellees, 

 Dennis George, Robert Stafford 

 and Donald Sarsfield 

 John K. Greiner (ARGUED) 

 Belden, Belden, Persin & Johnston 

 117 North Main Street 

 Greensburg, PA 15601 

 Attorney for Appellee, 

 Albert Diehl 

OPINION OF THE COURT 

RENDELL, Circuit Judge: 

On the evening of April 23, 1996, Laurie Latshaw 

telephoned Constable Albert Diehl and enlisted his aid in 

her plan to take a van from her former husband, Mark 

Abbott, the next day. Although Latshaw recovered the van, 

her plan was less than successful in that Abbott then filed 

an action under 42 U.S.C. S 1983 against her, Diehl, and 

three Greensburg, Pennsylvania, police officers who arrived 

on the scene to assist the constable, for violation of his 

Fourteenth Amendment right to procedural due process. 

The district court granted summary judgment and 

dismissed Abbott's claim against all of the defendants, 

determining that the law enforcement officers were entitled 

to qualified immunity, and that both the pleadings and the 

evidence failed to implicate Latshaw in any state action. 

Abbott appeals the district court's dismissal of hisS 1983 

claim against all of the defendants, as well as its denial of 

his motion to add a claim alleging a violation of the Fourth 

Amendment. We will affirm summary judgment in favor of 

Officer Sarsfield and Officer Stafford of the Greensburg 

police department on qualified immunity grounds, but will 

reverse dismissal of Abbott's S 1983 claim against Diehl, 

Lieutenant George of the Greensburg police, and Latshaw. 

 2 
We will also reverse the district court's denial of leave to 

amend the complaint. 

I. BACKGROUND 

Mark Abbott and Laurie Latshaw were married from 1983 

until 1993. Latshaw's father, Dale Feather, purchased a 

van with "GMAC" financing in 1989, and received a 

Commonwealth of Pennsylvania certificate of title issued in 

his name. On November 18, 1991, Feather and Abbott 

signed a Bill of Sale in which Feather agreed to"grant[ ], 

sell[ ], convey[ ] and deliver[ ]" the van to Abbott "free and 

clear of all liens and encumbrances . . . subject to the 

Purchaser paying all of the loans and encumbrances levied 

against" it. Thereafter, Abbott and Latshaw used the van, 

but its title and registration remained in Feather's name. 

Abbott retained sole possession of the van after he and 

Latshaw were divorced in 1993. He had completely paid off 

the GMAC loan on February 25, 1994, but chose not to 

transfer the van's title and registration to his own name 

because by doing so he would have forfeited the van's nontransferable warranty. 

On April 23, 1996, Feather assigned the van's title to his 

daughter by writing her name and address on the reverse 

side of the Certificate of Title alongside his notarized 

signature. The next day, Latshaw took the document to 

Greensburg where a title service reissued the van's

registration in her name. She then telephoned Albert Diehl, 

a Westmoreland County constable, and informed him"that 

[she had] the title to the car, it is signed over to [her] and 

that [she] needed help in retrieving it from Mark Abbott." 

She expected the constable to "tell Mark that, yes, the [van] 

was [hers] and [she] could take it and that was it." Latshaw 

admits that she contacted Diehl in his capacity as a 

constable. She also testified that she paid him for his 

services.1 

_________________________________________________________________ 

1. The transcript of Latshaw's deposition reads as follows: 

 Q. Now, when you contacted Al Diehl, you were cont acting him as 

 a constable; is that correct? 

 3 
On April 25, 1996, Latshaw and Diehl met outside 

Abbott's chiropractic office in Greensburg. Neither of them 

had notified Abbott of the impending seizure. As proof that 

she owned the van, Latshaw showed the constable the

Pennsylvania certificate of title issued in her father's name 

and bearing a notarized assignment to her, a temporary 

registration issued in her name, temporary license plates, 

and an insurance card indicating that the van was insured 

by a policy issued to James P. Latshaw, presumably her 

husband. 

Convinced that Latshaw was entitled to immediate 

possession of the van, Diehl approached Abbott, identified 

himself as a constable, and asked him if he would give 

Latshaw the keys to the van. Abbott refused. He insisted 

that he had paid for the van, had driven it for seven years, 

and had a bill of sale at home establishing that he owned 

it. Abbott asked if he could drive the van home to get the 

proof of ownership, but Diehl threatened to arrest Abbott if 

he drove off in "her vehicle." Abbott then telephoned David 

Harr, the attorney who had represented him in the sale 

transaction with Feather. Harr told Diehl that the bill of 

sale existed, and warned the constable that he would be 

held liable if he helped Latshaw take the van. 

Shortly thereafter, Diehl telephoned the Greensburg

police and requested that an officer come to the scene to 

review Latshaw's documentation. Lieutenant Dennis 

George, Officer Robert Stafford, and Officer Donald

Sarsfield of the Greensburg police arrived on the scene in 

response to the call. They reviewed Latshaw's paperwork 

and confirmed by radio that the van was in fact registered 

_________________________________________________________________ 

 A. Yes, I was. 

 Q. And did you pay him for his services? 

 A. Yes, I did. 

 Q. How much did you pay him? 

 A. $ 40. 

(Latshaw Dep. at 13-14). 

 4 
to Dale Feather. One of them told Latshaw she was entitled 

to immediate possession of the van. 

David J. Millstein, Abbott's current counsel, arrived at 

the scene at about this time. He spoke briefly to Diehl, and 

then entered into a heated discussion with Lt. George in 

which he vehemently opposed the seizure. When words

proved ineffective, Millstein took action. By then, a 

locksmith whom Diehl had recommended to Latshaw had

cut a key to the van. Millstein boxed the van into its 

parking space with his car in order to prevent Latshaw from 

driving it out of the parking lot. According to the police 

report submitted by Stafford, Lt. George then threatened to 

arrest Millstein if he did not make way for the van. When 

Millstein refused to do so, Lt. George told him that he was 

under arrest. The Greensburg police officers then issued 

him a summary citation for disorderly conduct and briefly 

detained him in a police car. Meanwhile, Latshaw managed 

to maneuver the van around Millstein's car and drove off. 

Abbott commenced a 42 U.S.C. S 1983 action against 

Diehl, the Greensburg police officers, and Latshaw,

claiming that they deprived him of property under color of 

state law without due process. The district court had 

jurisdiction pursuant to 28 U.S.C. SS 1331 and 1343(a)(3), 

and 42 U.S.C. S 1983. Abbott now appeals from the July 

21, 1997, final order of the district court granting summary 

judgment on qualified immunity grounds in favor of Diehl 

and the Greensburg police officers, dismissing hisS 1983 

claim against Latshaw for lack of state action, and denying 

him leave to amend his complaint to include an alleged 

violation of the Fourth Amendment. 

We have jurisdiction to review the final order of the 

district court under 28 U.S.C. S 1291. In reviewing an order 

of summary judgment predicated on qualified immunity 

grounds, we exercise plenary review over the district court's 

legal conclusions. See Kornegay v. Cottingham , 120 F.3d 

392, 395 (3d Cir. 1997). We will affirm summary judgment 

if, after drawing all reasonable inferences from the 

underlying facts in the light most favorable to the nonmoving party, we conclude that there is no genuine issue of 

material fact to be resolved at trial, and that the moving 

party is entitled to judgment as a matter of law. See id. 

 5 
II. DISCUSSION 

The district court held that although Abbott asserted a 

property interest upon which a S 1983 claim for violation of 

procedural due process may be predicated, qualified

immunity shields the officers from potential liability for 

their role in the seizure. We agree with the finding that the 

officers were state actors and effected a constitutional 

deprivation, but part company with the district court on the 

issue of qualified immunity. 

A. 42 U.S.C. S 1983 

Section 1983 provides a cause of action for violations of 

federally secured statutory or constitutional rights"under 

color of state law." 42 U.S.C. S 1983. See West v. Atkins, 

487 U.S. 42, 48 (1988). Abbott alleges in his S 1983 claim 

that Constable Diehl and the Greensburg police officers 

violated his Fourteenth Amendment right to procedural due 

process by using the authority vested in Pennsylvania law 

enforcement officers to deprive him of property without 

prior notice and an opportunity to be heard. If their 

conduct satisfies the state action requirement of the Due 

Process Clause, then it also qualifies as action"under color 

of state law" for S 1983 purposes. See Lugar v. Edmondson 

Oil Co., 457 U.S. 922, 935 n.18 (1982). 

1. Constable Diehl and the Greensburg Police Officers 

Where, as here, defendants have successfully raised the 

shield of qualified immunity in a S 1983 action, an

appellant trying to reverse summary judgment bears the 

initial burden of showing that the defendants violated a 

clearly established statutory or constitutional right. See 

Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) 

(citing In re City of Phila. Litig., 49 F.3d 945, 961 (3d Cir. 

1995)). In particular, Abbott must establish that the officers 

were acting as state actors when they deprived him of a 

property interest to which he had a legitimate claim of 

entitlement without the process he deserved. 

a. State Action 

State action is a threshold issue in a Fourteenth 

Amendment claim. "[T]he deprivation must be caused by 

 6 
the exercise of some right or privilege created by the State 

. . . or by a person for whom the state is responsible," and 

"the party charged with the deprivation must be a person 

who may fairly be said to be a state actor." Lugar, 457 U.S. 

at 937. The traditional definition of action under color of 

state law is similar, and requires that one liable under 

S 1983 "have exercised power `possessed by virtue of state 

law and made possible only because the wrongdoer is

clothed with the authority of state law.' " West, 487 U.S. at 

49 (quoting United States v. Classic, 313 U.S. 299, 326 

(1941)). 

We need not dwell on whether Diehl and the Greensburg 

police officers were state actors. They were clearly invested 

with the power and authority of the state when they

assisted Latshaw, and "state employment is generally 

sufficient to render the defendant a state actor." Lugar, 457 

U.S. at 935 n.18. In Pennsylvania, constables are elected 

public officials with prescribed duties and liabilities, see 13 

Pa. Cons. Stat. Ann. SS 1, 41, 45 (1998), and we likewise 

consider police officers to be a "set of state actors." 

Michigan v. Jackson, 475 U.S. 625, 634 (1986). Diehl 

admits that he acted as a constable, and identified himself 

as such to Abbott. The other officers arrived on the scene 

in response to Diehl's call for assistance, and were on duty. 

All four law enforcement officers were clearly state actors. 

b. Deprivation of a Constitutional Right 

It is elementary that procedural due process is implicated 

only where someone has claimed that there has been a 

taking or deprivation of a legally protected liberty or 

property interest. See Board of Regents v. Roth , 408 U.S. 

564, 569 (1972). It is also well established that possessory 

interests in property invoke procedural due process

protections. See Fuentes v. Shevin, 407 U.S. 67, 87 (1972). 

In Fuentes, the Supreme Court struck down as 

unconstitutional Florida and Pennsylvania prejudgment 

replevin procedures used by creditors to recover household 

goods purchased under conditional sales contracts and on 

which payments were allegedly overdue. "Clearly their 

possessory interest in the goods, dearly bought and

protected by contract, was sufficient to invoke the

 7 
protection of the Due Process Clause." Id. at 86-87 (footnote 

omitted).2 It is equally clear that Abbott's possessory 

interest in the van he had driven for seven years invoked 

the protection of the Due Process Clause. 

At the core of procedural due process jurisprudence is 

the right to advance notice of significant deprivations of 

liberty or property and to a meaningful opportunity to be 

heard. See LaChance v. Erickson, ___ U.S. ___, 118 S. Ct. 

753, 756 (1998); Boddie v. Connecticut, 401 U.S. 371, 379 

(1971). Prior notice is not, however, absolutely necessary so 

long as other procedures guarantee protection against 

erroneous or arbitrary seizures. See Mitchell v. W. T. Grant 

Co., 416 U.S. 600, 605-606 (1974); Finberg v. Sullivan, 634 

F.2d 50, 58 (3d Cir. 1980) (en banc). In Mitchell, the Court 

upheld a Louisiana statute requiring creditors to obtain 

judicial approval, post a bond, and submit a verified 

petition or affidavit before they sequestered property 

without notice from debtors entitled to seek immediate 

dissolution of the writ or to regain possession of the 

sequestered goods by filing a bond. Comparable procedures 

did not protect Abbott here. The Court has also found prior 

notice unnecessary in rare cases where (1) a seizure was 

directly necessary to secure an important governmental or 

general public interest, (2) there was a special need for very 

prompt action, and (3) "the State has kept strict control 

over its monopoly of legitimate force: the person initiating 

the seizure has been a government official responsible for 

determining, under the standards of a narrowly drawn 

statute, that it was necessary and justified in a particular 

instance." Fuentes, 407 U.S. at 91. This rare exception to 

the general requirement of providing notice before state 

action deprives an individual of a protected property 

interest is also inapplicable here. 

_________________________________________________________________ 

2. The defendants argue that Abbott had no property interest in the van 

because he did not list it among his assets in a prior bankruptcy 

proceeding, and is therefore judicially estopped from claiming he owns it. 

They also contend that his ownership of the van was uncertain because 

it was not explicitly awarded to him in the divorce proceedings. Because 

deprivation of a possessory interest alone invokes the right to procedural 

due process, we need not consider these arguments as to who owned the 

van. 

 8 
Abbott has a strong claim against Diehl for violating his 

right to procedural due process by failing to give him 

advance notice and an opportunity to be heard prior to 

Latshaw's seizure of the van. The constable played a 

principal role in the seizure. Latshaw enlisted him, and 

paid for his help because she believed that she could not 

take the van from Abbott without it. According to Abbott, 

"Mr. Diehl walked into my office and identified himself as a 

constable and told me that he was [there to take my

vehicle," and that "we're going [to] take the vehicle one way 

or another." The constable threatened to arrest Abbott for 

driving "her vehicle" if he tried to drive the van home. 

Viewing the record in the light most favorable to Abbott, we 

find that a reasonable jury could conclude that Diehl used 

his public authority to help Latshaw take possession of the 

van, and as such was obligated to notify Abbott of the 

seizure in advance and to provide him with a meaningful 

opportunity to be heard. 

The Greensburg police officers were called to the scene to 

check Latshaw's documentation, which they did. There is 

no evidence that two of the officers -- Sarsfield and Stafford 

-- did any more than this. The mere presence of police at 

the scene of a private repossession does not, alone, 

constitute state action causing a deprivation of a protected 

property interest. In Menchaca v. Chrysler Credit Corp., 613 

F.2d 507 (5th Cir. 1980), the Fifth Circuit Court of Appeals 

declined to find state action on the part of police officers 

who arrived at the scene of a self-help repossession in 

response to a report regarding a disturbance, maintained 

the peace, but did not take sides or assist the private 

repossessor in any way. Id. at 511-13. Officers Sarsfield 

and Stafford confined their conduct to the routine police 

procedures of checking the vehicle registration, and cannot 

be said to have used state action to deprive Abbott of his 

due process rights. See United States v. Coleman , 628 F.2d 

961, 964 (6th Cir. 1980) (acquiescence by police does not 

transform private acts into state action; police presence is 

not necessarily encouragement). However, Lieutenant

George did not remain neutral, but advised Latshaw that 

she had a right to immediate possession of the van.

Lt. George also ignored Millstein's ardent protest of the 

seizure, and threatened to arrest Millstein if he did not 

 9 
move his car to make way for Latshaw. Although he was 

not the instigator, a jury could find that Lt. George, by his 

conduct, joined forces with Diehl in the unconstitutional 

deprivation, going beyond the permissible conduct outlined 

in Menchaca. See, e.g., Booker v. City of Atlanta, 776 F.2d 

272, 274 (11th Cir. 1985) (plaintiff can withstand summary 

judgment if jury could find that police involvement

constitutes intervention and aid). This affirmative

intervention and aid constitutes a sufficient basis for a 

reasonable trier of fact to find that Lt. George played a role 

in the seizure and resulting violation of Abbott's 

constitutional rights. Sarsfield and Stafford are therefore 

entitled to dismissal of the claims against them, but 

Lt. George is implicated in the constitutional violation. 

2. Laurie Latshaw 

Although not an agent of the state, a private party who 

willfully participates in a joint conspiracy with state officials 

to deprive a person of a constitutional right acts"under 

color of state law" for purposes of S 1983. See Dennis v. 

Sparks, 449 U.S. 24, 27-28 (1980); Adickes v. S. H. Kress 

& Co., 398 U.S. 144, 152 (1970); McKeesport Hosp. v. 

Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 

524 (3d Cir. 1994) ("State action may be found if the private 

party has acted with the help of or in concert with state 

officials."). The district court dismissed Abbott's S 1983 

claim against Latshaw sua sponte because it found that his 

complaint failed to allege a conspiracy between Latshaw 

and Diehl, and that "the record reveal[ed] no basis to infer 

that any such allegation could withstand scrutiny." Abbott 

had alleged in his complaint that Diehl acted "at the 

instance and request of Defendant Latshaw" and that

Latshaw was thus "acting under color of state law" for 

purposes of the lawsuit. Further, the complaint depicted 

joint action by Latshaw and Diehl in effectuating the 

recovery of the van. This is not a case in which the 

complaint contains conclusory allegations of concerted 

action but is devoid of facts actually reflecting joint action. 

See, e.g., Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 

1998), cert. denied, 67 U.S.L.W. 3106, 3151 (U.S. Oct. 13, 

1998) (No. 98-219). Rather, the complaint easily satisfied 

 10 
the standards of notice pleading; no more is required of a 

plaintiff in S 1983 cases. See Leatherman v. Tarrant County 

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 

168-69 (1993). The district court's dismissal sua sponte 

was improper because the pleading contained sufficient 

allegations to withstand a motion to dismiss. Further, we 

find the court's conclusion that the record contained no 

facts which could support a conspiracy allegation to have 

been premature -- since no motion for summary judgment 

had been filed -- but also curious in light of the facts borne 

out by the evidence, including Latshaw's statement under 

oath that she contacted Diehl and that she paid him to 

help her take possession of the van. (See Latshaw Dep. at 

14). We will therefore reverse the district court's sua sponte 

dismissal of Abbott's S 1983 claim against Latshaw.

B. Qualified Immunity 

Qualified immunity shields public officials performing 

discretionary functions from S 1983 and Fourteenth 

Amendment liability "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 (1982). Our qualified 

immunity inquiry thus proceeds in two steps. See Sharrar 

v. Felsing, 128 F.3d 810, 828 (3d Cir. 1997). First, we must 

determine whether the defendants violated "clearly 

established" rights. Second, we must decide whether, in 

light of the concrete, clearly established, and particular law 

applicable on April 25, 1996, and the information then 

available, a reasonable officer would have believed that the 

conduct of Diehl and/or the Greensburg police officers 

deprived Abbott of his right to procedural due process. See 

Anderson v. Creighton, 483 U.S. 635, 640-41 (1987); Reitz 

v. County of Bucks, 125 F.3d 139, 147 (3d Cir. 1997). 

It is readily apparent that the applicable law regarding 

procedural due process was "clearly established" at the 

time of the alleged violation of Abbott's rights. As we noted 

earlier, the Supreme Court's 1972 decision in Fuentes held 

that due process protects possessory interests in property. 

407 U.S. at 87. Thus, the law in this area was clear for at 

 11 
least twenty-four years prior to the incident involving 

Abbott and the defendants. 

However, resolution of the second element of the qualified 

immunity test is more complex. The district court 

determined that an objectively reasonable officer in the 

same situation would not have realized that the defendants 

were violating Abbott's rights, and ruled that Diehl and the 

Greensburg police officers were thus immune fromS 1983 

liability for helping Latshaw. The court held that an officer 

who had reviewed Latshaw's documentation would 

reasonably have concluded that she was entitled to 

immediate possession of the van. Therefore, it found, Diehl 

and the Greensburg police officers could not have believed 

they were denying Abbott due process of law. We disagree. 

The district court and the defendants rely heavily on the 

fact that under Pennsylvania law certificates of title 

represent "prima facie evidence of the facts appearing on 

the certificate." 75 Pa. Cons. Stat. Ann. S 1106(c) (1998). 

However, the district court and the parties have overstated 

the importance of Latshaw's documentation, while ignoring 

the established precedent of Fuentes as well as the overall 

context of the seizure. 

At the heart of Fuentes is the principle that it is not for 

law enforcement officers to decide who is entitled to 

possession of property. Rather, it is the domain of the 

courts, and citizens are to have a meaningful opportunity to 

be heard as to their rights before they are finally deprived 

of possession of property. Diehl's curbside courtroom, in 

which he decided who was entitled to possession, is

precisely the situation and deprivation of rights to be 

avoided. Diehl knew that Abbott had once been married to 

Latshaw and had been driving the van for seven years. 

Moreover, he had reason to believe -- based on the 

statements of Abbott, Harr, and Millstein -- that Abbott 

had a bill of sale at home to support his ownership of the 

vehicle. In his single-minded reliance on Latshaw's

documentation, Diehl rode roughshod over Fuentes and 

ignored the broader context of the seizure which militated 

against the legality and reasonableness of his hasty 

conclusion that Latshaw, not Abbott, was entitled to 

immediate possession of the van. An official familiar with 

 12 
the facts then known and the law then applicable would 

have reasonably believed that his conduct was violating 

clearly established law. As such, we conclude that the 

district court erred when it granted summary judgment in 

favor of Diehl on qualified immunity grounds. 

We also conclude that an objectively reasonable officer 

would have realized the illegality of Lt. George's conduct. 

Reasonable police officers should know from the 

established precedent of Fuentes that their role is not to be 

participants in property deprivations without notice and an 

opportunity to be heard. There came a point during this 

incident when Lt. George's role changed from the protector 

of the peace to the enforcer. The Greensburg Police

Department Supplemental Report indicates that Lt. George 

told Millstein that he would be arrested if he did not move 

his van, and states that, when Millstein refused to

cooperate, Lt. George "grabbed" him by the arm and "told 

[him] that he was under arrest." (App. at 541). In light of 

Fuentes, we believe that a reasonable officer in Lt. George's 

position would have known that such behavior crossed the 

line of permissible conduct. We will thus reverse summary 

judgment on qualified immunity grounds as to Lt. George 

as well. 

III. MOTION FOR LEAVE TO AMEND THE COMPLAINT 

The district court denied Abbott leave to amend his

complaint to include an alleged Fourth Amendment 

violation based on its findings that the defendants did not 

"seize" Abbott's van, and that a Fourth Amendment claim 

"would be futile in light of the defendant officers' right to 

qualified immunity under the circumstances." We review 

the district court's denial of leave to amend a complaint for 

abuse of discretion. See Lewis v. Curtis, 671 F.2d 779, 783 

(3d Cir. 1982). However, we also recognize that"[i]f a 

district court concludes that an amendment is futile based 

upon its erroneous view of the law, it abuses its discretion." 

R.M. Smith v. National Collegiate Athletic Ass'n, 139 F.3d 

180, 190 (3d Cir. 1998). Here, we find fault with both of the 

district court's rationales, and we conclude that the court 

abused its discretion in denying Abbott leave to amend. 

 13 
First, in light of the Supreme Court's expansive view of 

the concept of "seizure" under the Fourth Amendment, as 

set forth in Soldal v. Cook County, Ill., 506 U.S. 56, 61-65 

(1992) (a Fourth Amendment "seizure" of property "occurs 

when `there is some meaningful interference with an

individual's possessory interests in that property,' " (citation 

omitted)), it is possible that plaintiff could in fact state a 

constitutional claim. Further, the district court's ruling as 

to qualified immunity, based as it is on the immunity issue 

relating to a due process violation, is not well-founded. The 

court opined that because qualified immunity applied to 

Abbott's due process claim, it necessarily would apply to 

his Fourth Amendment claim as well.3 Yet whether the 

defendants are entitled to qualified immunity from a claim 

under the Fourteenth Amendment is a wholly different 

inquiry from whether the defendants are entitled to

qualified immunity from a Fourth Amendment claim 

involving the seizure of personal property. The latter inquiry 

involves whether, in light of clearly established Fourth 

Amendment law applicable on April 25, 1996, a reasonable 

officer in the position of Diehl and Lt. George would have 

believed that their conduct violated Abbott's Fourth 

Amendment rights. This issue has not even been raised, let 

alone analyzed. Leave to amend the complaint should have 

been granted. 

IV. CONCLUSION 

For the foregoing reasons, we will affirm the district 

court's order of summary judgment in favor of Officers 

Sarsfield and Stafford, but will reverse the grant of 

summary judgment as to Constable Diehl and Lt. George. 

We will also reverse the district court's dismissal of Abbott's 

S 1983 claim against Latshaw, and its denial of leave to 

amend the complaint, and we will remand to the district 

court for further proceedings consistent with this opinion. 

_________________________________________________________________ 

3. The district court made this determination without the benefit of any 

briefing by the parties. In opposing Abbott's motion for leave to amend, 

none of the defendants had argued that the amendment was futile 

because of the availability of a qualified immunity defense. 

 14 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 15